Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. H39527
Kline, P.J.
Chelsea Marie Logue and Eric William Treadaway appeal from multiple convictions of offenses including residential burglary, residential robbery, attempted murder and assault with a firearm. Logue’s defense at trial was that she was forced by Treadaway to accompany him before and after the offenses. She contends that the trial court erred in excluding evidence critical to this defense and in denying her motions to sever her trial from Treadaway’s; that there was insufficient evidence she knowingly aided and abetted the attempted murders and assaults with a firearm; that the trial court erred in admitting other crimes evidence; and that the trial court erred in failing to instruct the jury sua sponte on the defense of accident or misfortune. In a related petition for writ of habeas corpus, Logue contends she was denied effective assistance of counsel by her attorney’s failure to obtain a qualified expert witness in time for trial.
Treadaway joins Logue’s contention regarding the defense of accident or misfortune, and separately argues that the trial court precluded him from presenting a “claim of right” defense by limiting state of mind evidence to Logue; erred in giving a jury instruction on circumstantial evidence; erred in sentencing him to both an upper term and consecutive terms; and erred in failing to stay enhancements on two counts.
We affirm the judgment. Logue’s petition for writ of habeas corpus is denied.
STATEMENT OF THE CASE
An amended information, filed on February 16, 2006, charged appellants with first degree residential burglary (Pen. Code, § 459–count 1); two counts of attempted murder (§§ 187, subd. (a), 664–counts 2 [Jason Rossi] and 3 [Marcus Derry]); four counts of attempted first degree residential robbery (§ 211–counts 4, 5, 6 and 7); and four counts of assault with a firearm (§ 245, subd. (a)(2)–counts 8, 9, 10 and 11). In addition, Treadaway was charged with one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)–count 12). The information alleged that Treadaway personally inflicted great bodily injury (§ 12022.7, subd. (a)) in connection with counts 1, 2, 3, 4, 5, 6, 7, 8, and 10; personally used a firearm within the meaning of section 12022.5, subdivision (a), in connection with counts 1, 8, 9, 10 and 11, and within the meaning of section 12022.53, subdivision (b), in connection with counts 2, 3, 4, 5, 6, 7; personally discharged a firearm (§ 12022.53, subd. (c)) and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) in connection with counts 2, 3, 4, 5, 6, and 7. With respect to Logue, the information alleged in connection with counts 1 through 11 that a principal in the offenses was armed with a firearm (§ 12022, subd. (a)(1)). Finally, the information alleged that Treadaway had suffered four prior convictions and three prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise indicated.
After a joint trial, the jury convicted Treadaway on all counts and found all the enhancement allegations true. The jury convicted Logue of all 11 counts with which she was charged and found the arming allegations true. On July 13, 2006, Treadaway was sentenced to a total prison term of 114 years eight months to life. On July 24, 2006, Logue was sentenced to a total prison term of 12 years.
Treadaway filed a timely notice of appeal on July 13, 2006. Logue filed a timely notice of appeal on July 27, 2006.
STATEMENT OF FACTS
Prior to July 28, 2004, Jason Rossi had known Logue for about a year; they had been involved in a sexual relationship, but had had an argument and he had not seen her for a couple of days. On the afternoon of July 28, Jason was at home in Castro Valley when Logue called and asked to come over. Jason had been drinking beer since the morning and was feeling the effects of the alcohol. Also at Jason’s house were his brother, Erick, and Erick’s friends Marcus Derry and Ashley O’Callaghan. Erick and his friends had not been drinking alcohol or consuming other intoxicants.
In this opinion, Jason Rossi and his brother, Erick Rossi, will be referred to by their first names in order to avoid confusion. No disrespect is intended.
About 20 or 30 minutes after Logue called, she came to the house and Jason answered the door. He saw a black Honda Prelude outside, still running. They walked to the car and Logue turned the car off by unhooking the battery. There was no one in the car and Jason did not notice anyone on the street. He and Logue returned to the house, Jason closed the door and believed he locked it. Jason went into the kitchen and saw Logue walk over to his brother, Erick, who was sitting in a chair in the family room. Logue appeared to give Erick a hug.
From the kitchen, Jason heard Erick say there was someone in the house. Jason went to see what Erick was talking about and, while standing where the kitchen met the family room, saw a person standing about 10 feet away, in the family room, wearing a mask and holding a gun. Jason laughed at the man, who appeared to be scared. He did not remember the exact sequence of events, but testified that he lunged forward and hit the man at least once, heard a gunshot and became aware he had been shot. He heard the man say something like “break yourself, get on the ground.” Jason testified that he remembered the man said something about demanding money, but acknowledged that in a taped statement to the police in October 2004 he had said the man did not mention money, and that in his preliminary hearing testimony he did not say anything about money. Jason testified that he wrestled with the man, trying to fight him, “ended up shot again” and fell to the ground. He did not remember whether the man also fell down. At the preliminary hearing, Jason had testified that the man looked “spooked,” he hit the man in the teeth before the first shot was fired, he hit the man more than once, the man fell to the ground and Jason jumped on top of him. Jason testified at trial that he exaggerated at the preliminary hearing because he was angry. Jason did not see Logue again after he observed her going to hug Erick. Jason acknowledged that at the time of trial he was on probation for three misdemeanor offenses and had a pending probation violation, but stated this did not influence his testimony. A sheriff’s deputy who responded to the scene of the shooting testified that Jason told him Jacob Cowin might have been the shooter, but it was determined that Cowin was in custody at the time.
Erick testified that after Jason went to answer the door, he was gone for a while, so Erick went to the door and saw Jason holding up the hood of a black car. Erick returned to his chair and Jason came inside with Logue. Erick stood up to hug her and, as he was sitting down again, saw her walk toward the door. Five or ten seconds later, a man wearing a ski mask ran into the house with a handgun. The man stood between Erick and the television, pulled a gun out of his sweater and pointed it at Erick, sitting in the chair, and Derry and O’Callaghan, who were sitting on the couch. The man told them to “get on the ground.” At trial, Erick did not remember the man also demanding money. Later on the day of the incident, however, Erick told a police officer that the man had said, “Get on the ground and give me your fucking money.” In a taped statement to a different officer, Erick did not mention the demand for money, saying only that the man had directed them to get on the ground. A few days later, the first officer asked whether the man had asked for money and Erick replied in the affirmative. At the preliminary hearing, Erick testified that the man demanded, “Get on the ground and give me your fucking money.”
Erick saw Jason run toward the man, who walked toward Jason and pointed the gun at him from about four feet away. Jason hit the man in the face and, simultaneously, Erick heard a gunshot. Erick testified that Jason was shot before he hit the man, although at the preliminary hearing he had testified that Jason hit the man, and there was a scuffle between them, before the shot was fired. Erick explained that he remembered things differently at the time of trial than he had at the preliminary hearing.
After the first shot, Erick saw Jason grab the man’s arm, heard another shot and saw Jason fall down. Erick started to stand up and the man, about four feet away, pointed the gun at Erick’s face and pulled the trigger. The gun did not fire, and Erick hit the man repeatedly. The man fell down onto his knees and elbows and Erick, continuing to hit the man, became aware of Derry kicking the man in the head. Erick heard a gunshot; Derry said “ow,” jumped back and ran toward the front door. Erick ran upstairs to his room and opened the window, intending to jump out onto the roof. Out the window, Erick saw the black Honda Prelude he had seen Jason with earlier, and saw Logue sitting in the passenger seat. Erick saw the gunman walk quickly from the garage to the car and reach under the hood. Erick ran downstairs and outside, where he saw the Honda Prelude turning the corner up the street. He ran back inside to help Jason, called 911, and called his mother. Erick estimated that the entire incident, from when he first saw the gunman to when he ran upstairs, lasted no more than three minutes. Later, Erick saw the car at the police department and recognized a jacket found in the car as the one Logue was wearing on July 28. At trial, Erick identified a tan sweatshirt as the one the gunman was wearing.
Derry testified that after Logue gave Erick a hug, she “disappeared” and Derry saw the masked gunman jog from the hall into the family room. The man pointed the gun at everyone and demanded, “Everybody on the ground, give me your money.” Jason ran from the kitchen toward the gunman, who pointed the gun at Jason and fired two or three shots. Jason reached the man and pushed or hit him, the two struggled and Jason fell to the ground. Derry saw the gunman point his gun at Erick’s head and pull the trigger, and when Erick got up and began to tussle with the man, Derry joined by kicking the man’s head. The man was on his back on the ground. The gunman shot again and Derry was hit in the groin, although he did not realize this until later. Derry ran to the door, in a state of shock and “pretty frantic,” with O’Callaghan behind him. The door was open and Derry saw Logue standing by it, smiling. He and O’Callaghan ran to a trail a couple of houses away and hid. Derry saw the masked man driving away in a black car, then he and O’Callaghan returned to the house. The police were there and Derry fainted. He had surgery and was hospitalized for about two weeks. When first interviewed by the police, while he was at the hospital shortly after the incident, Derry did not relate the gunman’s demand for money. Derry estimated that the incident, from the time he saw the gunman to the time he ran out the front door, lasted about two minutes.
Ashley O’Callaghan testified that she heard Jason’s phone ring and heard him say, “Just a few people, no one to worry about.” He got off the phone and told Erick that Logue was coming over. When Logue arrived, she came into the living room, hugged Erick, then walked away. O’Callaghan then saw the masked gunman enter the living room and wave the gun around. O’Callaghan testified that she did not hear the man say anything, although she acknowledged that in her police statement she related the man having said “freeze.” Jason came from the kitchen, walking fast and saying, “Oh, hell, no.” The gun was pointed directly at Jason and O’Callaghan heard a shot either right before or right after Jason reached the gunman. Jason and the man wrestled, O’Callaghan heard another shot, and the man let Jason down to the floor. Erick moved toward the gunman and begin hitting him, and Derry joined in, kicking the man. O’Callaghan heard a third shot, and Derry “jumped up” and ran toward the front door. O’Callaghan jumped over the back of the couch and followed him. The front door was open and O’Callaghan saw Logue standing, holding onto the door. O’Callaghan stopped, thinking Logue was trying to get out of the house. Logue did not move but looked and smiled at O’Callaghan. O’Callaghan ran outside, grabbed Derry, who was hunched over on the sidewalk, and they ran to a trail. On the way, O’Callaghan saw the still-masked gunman driving a black car. In her police statement, O’Callaghan had stated that she heard the second gunshot after Erick got up from his chair; at trial she testified this was not correct.
Mark Walton was in a parking lot opposite the Niles Canyon railway yard at about 3:40 p.m. on July 28, 2004, when he was approached by a young man asking to use his cell phone. Walton refused, and the man returned to a black car that Walton had seen him drive into the parking area. Walton saw the man take a jacket out of the trunk of the car and then walk toward the creek with a woman Walton had seen get out of the passenger side of the car. The woman did not appear to be in any distress and did not attempt to run away.
Alameda County Deputy Sheriff Timothy Schellenberg heard a broadcast about the shooting in Castro Valley and began to search for the suspect vehicle. At about 4:00 p.m., he saw a black Honda Prelude parked in the lot at Sims Park on Niles Canyon Road and noticed it was running but no one was inside. Schellenberg saw a black jacket on the passenger seat and a black mask on the driver’s seat. In the trunk, Schellenberg found a black revolver, inside of which were five expended shell casings and one bullet. The police also found a tan hooded sweatshirt in the trunk. Subsequent DNA testing determined that saliva on the mask found in the black Honda Prelude matched Treadaway’s genetic profile and blood on the tan sweatshirt matched Jason’s genetic profile.
The police recovered a bullet from the wall of the kitchen at the Rossi residence, and one from the floor of the family room, as well as one removed from Jason’s torso during surgery. The three bullets were determined to match each other and to have been fired from the gun that was recovered from the black Honda Prelude. The criminalist who examined the revolver testified that the location of the live bullet found in the revolver was consistent with a hypothetical sequence in which a person fired a minimum of two rounds, then another round was fired or a misfire occurred, and then at least one more round was fired. She explained that each individual chamber in a revolver must be loaded by hand, and that the hammer must be pulled back for the weapon to fire.
Prior to July 28, 2004, Douglas Young had known Logue for about a month and Treadaway for a couple of weeks; the two had been at Young’s house on three or four occasions and Young had seen them talking to each other there. Young’s house was a “party house” where it was common for people to stop by and use methamphetamine. Jason Rossi had come by the house a few times. Young testified that Logue borrowed his Honda Prelude on July 28, 2004. They walked out of Young’s house together and Young gave Logue the car keys, then saw her drive toward the front of the complex where she stopped and Treadaway got into the passenger seat of the car. Young and Treadaway greeted each other briefly and Young confirmed that Treadaway was accompanying Logue to a doctor’s appointment. Young had described the events differently at the preliminary hearing, saying that Treadaway came to his house after Logue did and he gave Logue the keys after seeing her talking with Treadaway.
About three and a half hours after Logue and Treadaway left in Young’s car, a police officer contacted Young about his car; Young did not know where the car was and told the officer he had loaned it to someone. Young identified photographs of his car at trial and testified that when he loaned the car to Logue he did not have a weapon or a mask in it. A jacket found in the car was not Young’s. Young testified that his car had ignition problems and sometimes would continue to run even when the key was not in the ignition. About a month before July 28, a gun Young owned went missing and there was “some talk about Jason having it.” Young was on probation for a misdemeanor driving under the influence conviction at the time of trial, but testified that he did not feel compelled to help the prosecution because of this. He acknowledged that he did not have “a really good memory” of the events described in his testimony.
Janice Logue, Chelsea Logue’s stepmother, was contacted by the police on July 28, 2004, and told them she had had an argument with Chelsea the evening before. She also said she had seen Chelsea driving a black Honda the prior Thursday to Sunday.
On August 13, 2004, Alameda County Deputy Sheriff Emmanuel Christy saw Treadaway driving a gray Grand Am in Hayward with Logue in the front passenger seat. As Christy and his partner were driving next to the Grand Am, Treadaway and Logue looked at them and Treadaway swerved quickly to the left and sped away. Christy activated his vehicle’s lights and siren and pursued as Treadaway drove at a high rate of speed, running stop signs and red traffic lights. Christy lost sight of the Grand Am, then later found it, but not its occupants, down a ravine. Logue was found by the police later that day.
On the morning of August 14, Alameda County Deputy Sheriff John Pinnegar saw Treadaway walking on a street in Hayward. When Pinnegar attempted to stop him, Treadaway took off running and jumped over a chain link fence. Later that day, the police received an anonymous tip that Treadaway was at 381 Laurel Avenue. Officers attempted unsuccessfully to contact Treadaway by knocking at the front door and announcing their presence through an open window, then entered through the window, found Treadaway in the living room, and arrested him. Several other people were in the room, including Christopher Fernandes. Fernandes testified that he knew Treadaway slightly and that Treadaway had said the police were looking for him and asked Fernandes to hide him in the house.
The police found a Gucci pocketbook on the front passenger floorboard of the Grand Am that had been abandoned by appellants. In the trunk of the car, the police found a red notebook (exh. No. 33) containing a three-page letter that detailed facts about the events of July 28, and was signed on the second and third pages, “always and forever, your goose girl, Chelsea Marie Duncan.” This letter was written to “Ronnie,” and described being at Jason’s house when a man “barged in,” Jason and his brother started beating him and there were gunshots. The writer said she was forced to drive away with the man, had been kept in a dark room “ever since,” did not know who had her, because the man always wore a black mask, did not know where she was, and did not even know whether she had eaten. The letter referred to being beaten by the man and wanting to “come home and be with my family and my baby girl.”
The police also found a drivers license in the name “Rosa Elena Rivera Castro” in a brown leather backpack in the trunk of the car, and another license in the same name in a wallet on the floor of the front passenger seat. A notebook found in a black bag on the rear passenger floorboard contained practice signatures for “Rosey Rivera,” written with an address matching that on two drivers licenses (exh. No. 31). Also in this notebook were writings starting with “Hey baby” and signed “always and forever, Rosey.” One of these contained statements including, “I’m really happy that I’m in this with you. I trust you with my life and only you. I hope you see that I’ll be by your side until the end no matter what.”
The police also found in the car a clipboard with two notebooks. In one of these was a letter that read, “Hey, lover. We walked to Walgreens, be right back. Love ya. Smiley face. x-o-x-o-x-o. Always and forever, Rosey.” Another letter in this notebook read, “Hey, babe, I’m writing you this to let you know how grateful I am to have you in my life. I know you know how hard this has been for me, but I consider you my family now and I wouldn’t . . . want to be doing this with anyone else. I hope you know that I plan on staying by your side through thick and thin until the end.” In the other notebook was a writing with the name Jakob Cowin and what appeared to be an Alameda County Sheriff’s Office personal file number (the number assigned to someone booked into the Alameda County Jail), followed by the address of the Santa Rita jail. This entry was followed by another number consistent with a personal file number and the name Ron. This notebook also contained letters concluding with “thanks, always, Rosey” and “always and forever, Rosey.” One of these read, “Hey, Babe. Went to the pool because I needed to cool down. Come get me when you get here. Love you and x-o-x-o-x-o, thanks. Always, smiley face, Rosey.” Another read, “Hey, if you get here before I get back, I went down to the vending machine. I’ll be right back and I might try to call you again. The phones are in the other building’s lobby. Okay, love you lots and see you soon, x-o-x-o-x-o-x-o-x-o. P.S. Good morning. Always and forever, Rosey, and a smiley face.” Another, “Hey, baby. I’m just sitting here waiting for you to get back. I just tried to call you but you didn’t answer. I’m tired of being stuck here alone and I also have a funky feeling. I hope you make it home safely.”
Defense
Treadaway presented no evidence. In closing argument, his attorney did not dispute Treadaway’s identity as the masked gunman, and acknowledged Treadaway assaulted the Rossi brothers, Derry and O’Callaghan. He argued, however, that the evidence did not demonstrate Treadaway had the intent to commit robbery, to discharge the firearm or to kill, and but rather indicated Treadaway intended to protect himself or, more likely, the gun discharged accidentally during the struggle.
Logue testified that in July 2004, she was 19 years old and had a one-and-one-half-year-old daughter. She had known Jason Rossi for about five years and had dated him on and off. She used methamphetamine “off and on.” Logue had arranged to borrow Doug Young’s car to go to a doctor’s appointment on July 28. When she arrived at Young’s house, he told her Treadaway had the car. Logue had previously seen Treadaway at Young’s house a few times. Treadaway arrived at Young’s house and, when Young left the room, came over to Logue, put his hand on the wall above her shoulder and told her Jason “has something of mine and I want it back and you’re taking me there.” Treadaway was standing very close to her and his demeanor was “forceful,” making Logue feel “scared and threatened and obligated.” She thought Treadaway would hurt her if she did not go with him.
After they left Young’s house, Logue pretended she did not know exactly which house was Jason’s. Treadaway had her call Jason from a mini-market, standing behind her gripping her neck while she made the call. He then had her drive to Jason’s house and drop him off at the corner, directing her to go into the house. Logue expected Treadaway to confront Jason about whatever it was that Jason had of Treadaway’s. Logue had not seen a gun or a mask in Treadaway’s possession and was not aware he had these items. Treadaway told her to see how many people were inside the house and give him a signal, but she did not do this.
Jason answered the door when Logue rang the bell, noticed Young’s car was still running, went with her to the car and did something under the hood to disconnect the engine. She did not think of telling Jason that Treadaway was around the corner; she was confused and scared and did not know what to do. They returned to the house, where Logue went to the family room and hugged Erick. As she stood next to Erick’s chair, out of the corner of her eye Logue saw a person with a mask and gun running or walking fast from the hallway to the middle of the family room. Logue recognized the person’s clothing as what Treadaway had been wearing. The man said something like, “get on the ground.” Jason ran in from the kitchen, jumped on Treadaway’s back and tackled him from behind. Erick got up and swung at the man. As Jason and the man wrestled, the gun fired. Logue did not see the gun pointed at anyone. She was “in shock” and felt she could not move. Derry ran over and kicked the man, then ran out of the family room, passing Logue at the beginning of the hallway by the family room and heading toward the front door. O’Callaghan followed Derry. Logue was not standing by the front door at this point and was not smiling. Treadaway pointed the gun at her and said, “Start the fucking car.” Logue ran to the car, planning to take off without Treadaway, but he “came out of nowhere,” pushed her into the passenger seat, and drove off.
Treadaway drove to Niles Canyon, where Logue stood by the car while he asked a man to use his cell phone. Treadaway told Logue he would “fucking kill” her if she tried to leave or cause a scene. She believed him. Treadaway returned to the car, put his sweatshirt in the trunk, grabbed her arm and led her into the woods. At Treadaway’s direction, they climbed a tree, where Treadaway slept for some time. They then continued through the woods to the road. Logue made no attempt to get away because she believed Treadaway would kill her if she did. They walked to a trailer where they spent the rest of the night, then walked out of the canyon to a store where Treadaway made a phone call. A woman picked them up and took them to a motel in Hayward, where they spent a couple of days. Logue mostly slept and she did not remember Treadaway ever leaving her alone in the room. They stayed at other hotels in San Mateo or San Francisco, getting rides from people Treadaway knew and “at the end” driving the car they were in during the police chase. Treadaway threatened that if she tried to leave he would kill her and, if he could not find her, he would go after her family and her daughter. On a couple of occasions, Logue was left alone in a hotel but she did not try to get help because she was scared. Treadaway brought Logue food, changes of clothes and methamphetamine, which she used to help her “cope with the situation” and “block[] out reality.” Asked whether she ever had sexual intercourse with Treadaway, Logue responded, “not willingly.”
A couple of days before August 13, Logue objected when Treadaway told her they were leaving town, and he told her he should “get rid of [her] and [her] mom should find [her] in a ditch somewhere dead.” On August 13, Treadaway called a friend of Logue’s and asked her to bring Logue some clothes. Police arrived at the place they were supposed to meet. Treadaway drove away and into a ravine, where the car crashed into a tree and Treadaway got out and ran. Logue went to a nearby apartment complex, knocked on someone’s door, and had them call 911. Logue told the dispatcher, among other things, “please don’t let him find me” and “if anyone finds out that I was the one that said anything he’ll have people come after me.” A portion of the 911 tape was played for the jury.
Police officers arrived and arrested Logue. Logue initially told the police she did not know whose car was used to go to the Rossi house because she did not want to get anyone involved who did not need to be involved. She later said the car belonged to Young, but said Treadaway borrowed it.
Logue testified that she did not go to the Rossi house freely and voluntarily, that she never intended to rob, assault or kill anyone there, and that she was not aware any crimes were going to be committed there. She denied having written any of the notes and letters in the notebooks found in the Grand Am except the letter to Ronnie. She testified that some of the contents of that letter were not true, including statements that about being kept in a dark room, not knowing where or with whom she was, and not eating. Logue testified that Ronnie was an ex-boyfriend who was incarcerated at the Santa Rita jail between July 28 and August 13. She acknowledged that his name was in one of the notebooks along with the address to the Santa Rita jail, though she said the handwriting was not hers, and said that Jakob Cowan, the other name written in this notebook, was a friend of Jason’s. Logue acknowledged that there were similarities in characteristics of the writing on the letter to Ronnie and others she denied writing, such as happy faces, “x-o-x-o-x-o” notations, “and” symbols and letter i’s dotted with an “x.” She admitted having seen the driver’s licenses found in the Grand Am and practicing Rosey Rivera’s signature, testifying that Treadaway wanted her to do this in order to rent hotel rooms and she was afraid to refuse. Logue acknowledged that she dyed her hair after the incident at the Rossi house.
DISCUSSION
I.
Logue’s defense at trial was that she did not willingly participate in the offenses or remain with Treadaway afterward, but rather was forced to accompany him. On this appeal, she contends the trial court violated her constitutional right to present a defense by excluding certain defense evidence. Specifically, she challenges the trial court’s exclusion of expert testimony explaining the “Stockholm Syndrome,” evidence she was repeatedly raped by Treadaway, evidence that she suffered nightmares after the events at issue, and redaction of her call to 911. In a related petition for writ of habeas corpus, Logue argues she was denied effective assistance of counsel by her attorney’s failure to exercise due diligence to obtain an expert witness qualified to testify regarding Stockholm Syndrome in time for trial.
A. Stockholm Syndrome
“The Stockholm Syndrome has been described as ‘a psychological phenomenon whereby a hostage develops positive feelings for his or her captor.’ ” (U.S. v. Peralta (9th Cir. 1991) 941 F.2d 1003, 1009, fn. 1, quoting United States v. Chancey (11th Cir. 1983) 715 F.2d 543, 547.) Logue’s attorney sought to present expert testimony by Richard Ferry, a licensed marriage and family therapist, on this syndrome. At an Evidence Code section 402 hearing outside the presence of the jury, Ferry testified that in his private practice, he worked with domestic violence perpetrators and victims, including women who were “oppressed or dominated,” adults who were abused, neglected or molested as children, men dealing with issues of excess work, avoidance of intimacy and coping with loss, and children. Ferry explained that the Stockholm Syndrome is a form of “traumatic bonding” with four known applications: hostage situations, cults, battered women, and abused children. Ferry stated that one of the key ingredients in both battered women’s syndrome and Stockholm Syndrome is the presence of a threat or perceived threat of violence, injury or death to the victim or her family. Stockholm Syndrome differs from battered women’s syndrome in that it involves no prior relationship, but rather “rapid onset of the connection between the hostage takers and the hostage.”
The trial court initially stated its intention to permit Ferry’s testimony, noting that Logue’s attorney wanted to use it to explain why Logue did not try to escape from Treadaway and why she would have written the letters to him that the prosecutor attributed to her. The court changed its mind, however, after Ferry testified on voir dire that he had expertise in treating women who had been forced to do things they did not want to do in the context of domestic violence in an ongoing relationship, and had worked with 20 or 30 people who had been victims of stranger assaults or robberies, but none of these cases involved someone being forced to go somewhere against their will. The trial court ruled that Ferry did not have the qualifications to testify as an expert in the case.
In closing argument, Logue’s attorney told the jury, “there’s all kinds of different theories about what happens either to people that are hostages or in a situation where they feel that they’re intimidated, frightened and warned if they try to leave or escape, they’re going to be killed.” Counsel mentioned Jews who became friendly with their Nazi captors as the only way they felt they could survive, and spoke about “a thing called a Stockholm Syndrome that’s known to psychologists” based on hostages taken in a robbery who, after a number of days, became friendly with the captors to the point that they were permitted to go into another room without being watched. Counsel stated that “these kinds of things happen to somebody that is subject to the whim and will of a more dominating individual,” and that although it appeared Logue stayed with Treadaway for two weeks despite opportunities for escape, she had been so frightened and intimidated by him that she feared for herself and her family if she left.
The prosecutor, in turn, told the jury that there was no expert testimony or other evidence about the Stockholm Syndrome in the case and that Logue had not claimed she fell in love with Treadaway and offered expert testimony to explain how this resulted from the Stockholm Syndrome, but only testified that she was forced to participate and afraid to run away.
“A trial court’s decision to admit or exclude evidence is reviewable for abuse of discretion.” (People v. Vieira (2005) 35 Cal.4th 264, 292; People v. Avila (2006) 38 Cal.4th 491, 578.) A trial court’s determination of whether a witness qualifies as an expert is also a matter of discretion. (People v. Bolin (1998) 18 Cal.4th 297, 321-322; People v. Panah (2005) 35 Cal.4th 395, 478.) Here, the proposed expert witness’s experience with people being forced to act against their will was in the context of an ongoing relationship; his experience with people who had been victims of crime by strangers involved assaults and robberies, but nothing like the circumstances Logue described. The trial court did not abuse its discretion in determining Ferry was not qualified to testify as an expert on the Stockholm Syndrome in this case.
In her petition for writ of habeas corpus, Logue argues that her trial attorney’s failure to offer a qualified expert witness on the Stockholm Syndrome constituted ineffective assistance of counsel. She points out that at the sentencing hearing, when her attorney called licensed marriage family therapist Linda Barnard to testify on this subject, the prosecutor offered to stipulate to Barnard’s qualifications as an expert in psychology and stated he had no objection to her testifying about the Stockholm Syndrome. Barnard then testified that Stockholm Syndrome is a “response of a victim to a trauma,” a “coping response when the person feels like they’re a captive and they perceive there’s no way for them to escape.” The elements of the syndrome are a perceived threat from the captor, which the victim perceives could be carried out; “small kindnesses” done by the captor for the victim; isolation of the victim from opinions other than the captor’s; and a perceived inability to escape.
Barnard stated that one of the biggest misconceptions about Stockholm Syndrome is that the victim chooses to be in the situation, whereas in fact “the level of fear and threat that the person experiences actually renders them incapacitated to try to leave even though it seems to someone outside that she should be able to do so.” In the Stockholm Syndrome, victims’ feelings about their captors become confused, and their thoughts and emotions become distorted, so they feel they are at the mercy of the captor and their own desires, their wishes have no impact and they become unable to make choices they would have been able to make in ordinary life. In the original case for which the syndrome is named, one of the captives later married one of the captors; Barnes explained that “[b]ecause the relationship is so intense during the captive time, there’s a bonding that occurs between those two people that’s not what happens in a normal, natural situation . . . .” Barnes testified that it was not unusual, with this syndrome, to see letters from the victims that seem positive toward their captors and letters exaggerating the situation due to guilt because the victim does not know what to do.
Barnes, who had interviewed Logue and reviewed records in the case, testified that Logue’s description of the events met the criteria for Stockholm Syndrome, including witnessing the shooting, being repeatedly subjected to threats against herself or her family, being raped, believing she had no way to escape, and becoming dependent on Treadaway for food and shelter. Barnes suggested Logue would have believed she could not escape because if she did, Treadaway would find her and harm her or her family, and that the letters attributed to Logue could reflect an attempt to placate him. Barnes believed Logue experienced the syndrome, felt this conclusion was confirmed by the 911 tape and the level of “fear and hysteria” it reflected, and stated that the nightmares and sleep problems Logue subsequently experienced were consistent with having been a victim of Stockholm Syndrome. In response to a question from the court, Barnes stated that the shortest documented time period leading to a case of Stockholm Syndrome was six to eight hours.
In support of her habeas petition, Logue submits a declaration from her trial counsel. Trial counsel states that prior to trial he intended to base the defense on Logue’s testimony, corroborated by her stepmother’s testimony about Logue’s behavior after her arrest, the 911 tape, and Logue’s statement to the police. Counsel felt Logue was a believable witness. During trial, after the court held Logue’s stepmother’s testimony inadmissible, permitted only a portion of the 911 tape and police statement, and ruled defense evidence inadmissible because of its potential to prejudice Treadaway, counsel considered presenting a defense based on Stockholm Syndrome. At first, after researching the issue, counsel “was not convinced in my own mind that this evidence would be relevant or admissible because it primarily involved facts that occurred after the crimes in the Rossi home.” Trial counsel then came to believe a jury would be able to understand Logue’s state of mind if a psychologist explained the effects of Stockholm Syndrome on hostages. He waited to see how the trial would develop, however, before attempting to locate experts. When he did look, only a few weeks of trial remained and he was unable to find an expert available on short notice. Dr. Barnard recommended Ferry, but the trial court did not qualify Ferry as an expert. Trial counsel stated that he should have arranged earlier for Barnard, or another equally qualified expert, to testify at trial in order to corroborate Logue’s testimony and explain the effects of Stockholm Syndrome, and that there was no tactical or strategic reason for his failure to do so.
Logue also submits the declaration of habeas counsel, which relates his telephone conversation with trial counsel, in which the latter made statements to the same effect as in the declaration just described. Respondent objects to this declaration as inadmissible hearsay. We need not consider, nor determine the admissibility of, this declaration, as it adds nothing to the declaration of trial counsel.
“ ‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688; [People v.] Ledesma [(1987)] 43 Cal.3d [171,] 215-216.) Second, he must also show prejudice flowing from counsel’s performance or lack thereof. (Strickland, supra, at pp. 691-692; Ledesma, supra, at pp. 217-218.) Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257; Strickland, supra, at p. 694.)’ (People v. Jennings (1991) 53 Cal.3d 334, 357.)” (In re Avena (1996) 12 Cal.4th 694, 721.)
“ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412), and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” ’ (People v. Lucas (1995) 12 Cal.4th 415, 436-437, quoting Strickland v. Washington, supra, 466 U.S. at p. 689.) ‘[W]e accord great deference to counsel’s tactical decisions’ (People v. Frye (1998) 18 Cal.4th 894, 979), and we have explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’ (People v. Scott (1997) 15 Cal.4th 1188, 1212). ‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’ (People v. Bolin [, supra,] 18 Cal.4th 297, 333.)” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
“ ‘[I]n evaluating defendant’s showing [a court accords] great deference to the tactical decisions of trial counsel in order to avoid “second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel ‘to defend himself or herself against a claim of ineffective assistance after trial rather than to defend his or her client against criminal charges at trial. . . .’ ” ’ (In re Fields [(1990)] 51 Cal.3d 1063, 1069-1070, quoting In re Cordero (1988) 46 Cal.3d 161, 180, and People v. Ledesma, supra, 43 Cal.3d at p. 216.) ‘ “However, ‘deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. “[D]eference is not abdication” [citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.’ ” ’ (51 Cal.3d at p. 1070; see also People v. Karis (1988) 46 Cal.3d 612, 621.) Finally, we note that a criminal defendant can ‘reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.’ (People v. Ledesma, supra, 43 Cal.3d at p. 215.)” (In re Avena, supra, 12 Cal.4th at p. 722.)
Logue relies heavily upon Paine v. Massie (10th Cir. 2003) 339 F.3d 1194, which found ineffective assistance of counsel where the trial attorney failed to offer expert testimony on Battered Woman Syndrome (BWS) despite the fact that the defendant was a battered woman relying on a theory of self defense. Paine viewed such expert testimony as necessary “to equip the jury to properly assess the reasonableness of [the defendant’s] fear” and concluded that the absence of expert testimony “effectively eviscerated” the only defense offered. (Id. at p. 1204.)
Here, Logue’s defense at trial was duress: She testified that Treadaway forced her to participate in the offenses by threatening her and her family, and that she remained with him after the offenses for the same reason. To bolster her testimony, she offered evidence of her emotional state during the 911 call, her police statement, and afterwards. The prosecutor argued, in closing, that Logue’s willing participation in the offenses was demonstrated, in part, by her staying with Treadaway for so long, by the entries in the notebooks that appeared to reflect a voluntary relationship with him, and by Logue falsely disavowing having written these notes.
Logue sought to use evidence of the effects of Stockholm Syndrome to counter the prosecution’s argument that her conduct after the offenses indicated her state of mind during the offenses was one of willing participation. The point of the evidence was not to demonstrate that Logue acted under the influence of the syndrome during the commission of the offenses, but to give the jury an explanation for her subsequent conduct that would be consistent with her defense of duress. Whereas the prosecution used the post-crime conduct evidence to argue Logue intended to help Treadaway all along, Logue wanted the jury to view her as a victim and, therefore, to explain the evidence that tended to paint her as a willing partner.
The trial court’s comments at sentencing about the Stockholm Syndrome evidence being irrelevant misunderstood this aspect of the case. The court viewed the evidence as irrelevant because there was insufficient time before the commission of the offenses for the syndrome to come into play. The court did not view the evidence as bearing on the jury’s evaluation of Logue’s state of mind during the offenses as explained above.
This does not mean, however, that Logue has demonstrated ineffective assistance of counsel. Trial counsel stated in his declaration that he at first intended to present only a duress defense and that even when he began to consider Stockholm Syndrome, he at first considered it potentially irrelevant or inadmissible because it “primarily involved facts that occurred after the crimes in the Rossi home.” Given the facts of this case, this view does not appear unreasonable. In any event, whatever the merit of this assessment, it was plainly a tactical decision. (See People v. Bolin, supra, 18 Cal.4th at pp. 334-335.) The same is true of counsel’s decision to see how trial developed before attempting to locate an expert witness. Trial counsel stated in his declaration, “[a]s it turned out, this proved to be a bad decision,” and stated that he had no strategic or tactical reason for failing to arrange for Dr. Barnard’s testimony sooner. Counsel’s post hoc view, however, is not dispositive. (See Hendricks v. Calderon (1995) 70 F.3d 1032, 1038; People v. Felix (1994) 23 Cal.App.4th 1385, 1400.) The decision to focus on a duress defense may appear to have been a poor one in hindsight, but hindsight is not the appropriate test. (People v. Weaver, supra, 26 Cal.4th at p. 926.) Additionally, Logue can only speculate that Barnard would have been available to testify at trial if trial counsel had contacted her earlier.
Finally, even if trial counsel’s conduct could be viewed as deficient, Logue has not demonstrated a reasonable probability the outcome of the trial would have been different if expert testimony on the Stockholm Syndrome had been presented. The value of the testimony, as we have stated, would have been to persuade the jury Logue did not remain with Treadaway after the offenses voluntarily and, therefore, to undermine the inference from her postoffense conduct that she collaborated with Treadaway in committing the offenses. The syndrome evidence, however, would have done nothing to save Logue, in the jury’s eyes, from the effect of contradictions between her account of the offenses and that supplied by other witnesses and evidence.
Such contradictions abound. While Logue described an initial scene in which Treadaway secured her cooperation by threatening her while they were both inside Young’s house, Young testified that he gave Logue the keys to his car while they were outside walking to where the car was parked, and that Treadaway joined Logue in the car after she was already in it and driving away. Logue testified that she was in the family room during the shooting, while Erick, Derry and O’Callaghan testified she had left the room before the gunman entered. Logue testified that she was standing in the hallway when Derry and O’Callaghan ran out of the house and denied she was standing by the front door or smiling. Derry and O’Callaghan testified that as they left the house they saw Logue standing by the front door smiling; O’Callaghan testified that she stopped to give Logue a chance to leave before her, but Logue remained in the house. Logue testified that after the shooting she ran to the car, planning to leave without Treadaway, but Treadaway appeared and pushed her into the passenger seat. Erick, however, testified that from his window he saw Logue sitting in the passenger seat of the car before Treadaway got to it, and saw Treadaway reach under the hood before getting into the car. Since the car could not have been started without reconnecting the wires Jason had disconnected, Erick’s testimony contradicted Logue’s suggestion that she was ready to drive away without Treadaway.
Additionally, the jury could only have concluded that Logue lied in the letter she admitted writing to Ronnie when she described being locked in a closet by a man who always wore a mask; the evidence showed that the mask was found in the car appellants abandoned at Niles Canyon. Moreover, Logue’s denial that she wrote the notebook entries other than that letter undermined any reliance on the Stockholm Syndrome: Had the notes been written under the effect of the syndrome, Logue would have admitted her authorship but tried to explain it. Logue’s testimony was simply that she was afraid of Treadaway and acted as she did, during and after the offenses, out of fear for herself and her family.
In short, the absence of expert testimony on the Stockholm Syndrome did not eviscerate Logue’s defense that she acted under duress. At best, that evidence might have suggested a view of her postoffense conduct consistent with her defense. The many contradictions between Logue’s account of the events and those of the other witnesses, however, make it highly unlikely the jury would have believed Logue even if the syndrome evidence had been presented.
B. Rape by Treadaway
Logue also challenges the trial court’s exclusion of evidence that Treadaway raped her during the period she spent with him. On direct examination, Logue was asked whether she had sexual intercourse with Treadaway and responded, “not willingly.” Treadaway’s attorney objected and, in discussions outside the presence of the jury, argued this testimony was unduly prejudicial to his client and asked the court to sever the trials and grant a mistrial as to Treadaway. When Logue’s attorney said he would withdraw the question, Treadaway’s maintained this would make matters even worse, because the jury had heard the question and answer. The court noted that in a videotaped interview with the police, Logue denied there was any sexual activity with Treadaway, so that the substance of the testimony came as a surprise. The court denied the motions for severance and mistrial, but warned it was inclined to grant such a motion “if something explosive or unexpected pops up again.”
Subsequently, on redirect, after eliciting Logue’s testimony that her fear of Treadaway never went away while she was with him, her attorney asked whether Treadaway did anything else that “really upset you and frightened you,” and the court sustained Treadaway’s attorney’s objection. The court also sustained objections to the next two questions, whether Logue ever had sex with Treadaway and whether she ever had unwanted sex with him. Outside the presence of the jury, Treadaway’s attorney again moved for a mistrial, arguing Logue’s attorney had asked three improper questions and the fact the court sustained objections to the questions “reinforce[ed] the possibility” that there had been sexual misconduct between Treadaway and Logue. The court denied the motion. Logue’s attorney stated that he should have been allowed to go into whether she was raped, but did not move for a mistrial or other relief.
Logue argues her testimony that Treadaway raped her was directly relevant to her state of mind (regardless of whether he in fact did so) and supported her defense that she acted under duress or effect of the Stockholm Syndrome. She relies upon Greene v. Lambert (9th Cir. 2002) 288 F.3d 1081, which granted habeas corpus relief based on a trial court’s refusal to permit testimony from the defendant and the victim, his therapist, that the victim suffered from multiple personality disorder. The defendant sought to rely on a defense of insanity or diminished capacity and the therapist would have testified that the assault was committed by an “alter” who was a child less than seven years old. (Id. at pp. 1084-1085.) State courts had concluded that although the disorder was generally accepted in the scientific community, the evidence was not admissible in this case because it would not have been helpful to the trier of fact. (Id. at p. 1085.) Applying the rule that exclusion of evidence is “ ‘unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused’ ” (id. at p. 1090), Greene held that “the Federal Constitution affords [the defendant] an opportunity to present his own testimony and that of the victim concerning his state of mind at the time of the attack.” (Id. at p. 1093.)
The exclusion of further testimony that Treadaway raped Logue does not rise to the same level as what occurred in Greene. There, the preclusion of testimony effectively prevented the defendant from presenting his defense. Here, at most, the testimony might have added weight to a defense Logue was able to put forward.
The trial court was presented with a dilemma, because testimony that Treadaway raped Logue, quite obviously, would be prejudicial to Treadaway. In fact, the jury was not prevented from considering Logue’s testimony that she did not “willingly” have sex with Treadaway; counsel for Treadaway and the prosecutor did not want to further highlight the issue by having Logue’s attorney withdraw the question or the court strike Logue’s answer. In light of the potential for prejudice to Treadaway, we cannot find the court abused its discretion in refusing to permit further questioning along this line. Additionally, we are not persuaded that the exclusion of further rape testimony prejudiced Logue. While such testimony would have added to the picture of duress upon which Logue’s defense was based, Logue testified repeatedly about her fear of Treadaway and his threats to kill her or her family. The jury did not believe her testimony. There is no reason it would have been more likely to accept her defense if it had heard her testify further that Treadaway raped her during the weeks following the offenses.
C. Evidence of Nightmares
Logue was also precluded from presenting testimony by her mother that Logue suffered from nightmares after she was released on bail. The court found the proposed testimony irrelevant and speculative, explaining that there had been no expert testimony linking the evidence to the case and “for all I know she could be worried about . . . spending a long time in prison, there could be other reasons why she’s upset or having these nightmares or crying . . . .” Logue’s attorney moved for a mistrial, which the court denied. At sentencing, Logue’s mother testified that when Logue came to live with her in December, she witnessed Logue having night terrors: “She would cry out in her sleep, wake up shaking, scared to death. She was afraid to be alone. She was traumatized by this whole thing and in particular by Eric Treadaway.”
Logue sought to present this evidence as corroboration of the testimony she wanted to present regarding the Stockholm defense and Treadaway raping her. As the trial court pointed out, however, the significance of the evidence was highly speculative. Logue’s mother could not address the substance of Logue’s nightmares; she could only describe what she saw of Logue’s reaction to them. No evidence was offered to explain what the nightmares might mean and whether they related to Logue’s experiences with Treadaway, as her mother inferred, or something else, such as the fear of prison the trial court postulated. The court did not abuse its discretion in excluding this evidence.
D. Redaction of 911 tape
Another evidentiary ruling Logue challenges is the redaction of the tape of her call to 911. The prosecutor and Treadaway’s attorney objected that portions of the tape did not meet the requirements for the excited utterance exception to the hearsay rule because they did not concern the immediately preceding car chase and crash but rather the events on July 28 and during the ensuing two-week period. The prosecutor sought to have the entire tape excluded, arguing that any relevance of Logue’s description of the chase was outweighed by the undue consumption of time it would require to redact other portions of the tape. Additionally, Treadaway’s attorney argued that the transcripts Logue’s attorney proposed to give to the jury contained editorial comments and conclusions of the transcriber that would be inappropriate for the jury, such as “victim can be heard pleading for help. Sounds nearly hysterical.” The trial court ultimately permitted the jury to hear a redacted version of the tape corresponding to the first six pages of the transcript, without giving the jury the transcript. In the portion of the tape played for the jury, an audibly distraught Logue told the operator about the police chase and car crash, answered questions about where the crash occurred and who was involved, and expressed fear about Treadaway finding out she had called. In the portion not played for the jury, Logue additionally talked about the shooting and about Treadaway keeping her with him since the shooting.
At the hearing on Logue’s motion for a new trial, her attorney argued it was unfair that the jury did not hear the whole 911 tape, “which actually showed how hysterical and upset she was and how fearful she was of Treadaway; certainly not somebody that would have been involved in the planning and participation in the robbery.” Logue’s argument is that the redacted tape played for the jury did not accurately portray the degree of her hysteria when she finally escaped from Treadaway, thereby preventing her from presenting her entire defense.
The trial court did not abuse its discretion. While the portion of the tape not played for the jury reflected a high degree of distress on Logue’s part, the portion that was played made her distress apparent. The court’s ruling did not prevent Logue from presenting her defense.
E. Cumulative prejudice
Logue argues that even if each of the allegedly erroneous evidentiary rulings was harmless on its own, together they served to gut her defense and therefore require reversal of her convictions. As discussed above, we disagree with Logue’s contention that the trial court’s exclusion of the evidence was erroneous. Logue presented a defense based on duress: She testified about the threats appellant made and about her fear of him, and the portion of the 911 call the jury heard reflected significant distress. “ ‘ “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.” ’ ” (People v. Gurule (2002) 28 Cal.4th 557, 620.) “The rulings did not deprive defendant of a meaningful opportunity to present a defense.” (People v. Pollock (2004) 32 Cal.4th 1153, 1173.)
II.
Logue contends her constitutional rights to due process and a fair trial were violated by the trial court’s denial of her motion for severance. This claim is based on the trial court’s refusal to permit Logue to testify that Treadaway raped her during the time they spent together after July 28. Logue contends that because critical defense evidence was excluded as unduly prejudicial to Treadaway, the denial of her motion to sever resulted in prejudicial joinder.
Logue’s brief states that her attorney moved for severance and/or mistrial unsuccessfully after the ruling excluding this testimony. The reporter’s transcript page cited, however, reflects only Treadaway’s motions for severance and/or mistrial; the issue discussed was potential prejudice to Treadaway from the question and answer given, not anything related to prejudicing Logue by excluding such evidence.
“Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ (See People v. Boyde (1988) 46 Cal.3d 212, 231, affd. on other grounds sub nom. Boyde v. California (1990) 494 U.S. 370 [acknowledging legislative preference].) Joint trials are favored because they ‘promote [economy and] efficiency’ and ‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” ’ (Zafiro v. United States (1993) 506 U.S. 534, 537.) When defendants are charged with having committed ‘common crimes involving common events and victims,’ as here, the court is presented with a ‘ “classic case” ’ for a joint trial. (People v. Keenan (1988) 46 Cal.3d 478, 499-500.)
“The court’s discretion in ruling on a severance motion is guided by the nonexclusive factors enumerated in People v. Massie (1967) 66 Cal.2d 899, 917, such that severance may be appropriate ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ (Fns. omitted.) Another helpful mode of analysis of severance claims appears in Zafiro v. United States, supra, 506 U.S. 534. There, the high court, ruling on a claim of improper denial of severance under rule 14 of the Federal Rules of Criminal Procedure, observed that severance may be called for when ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ (Zafiro, supra, at p. 539; see Fed. Rules Crim.Proc., rule 14, 18 U.S.C.) The high court noted that less drastic measures than severance, such as limiting instructions, often will suffice to cure any risk of prejudice. (Zafiro, supra, at p. 539.)
“A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling. (People v. Hardy (1992) 2 Cal.4th 86, 167.) Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. (People v. Keenan, supra, 46 Cal.3d at p. 503.)” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40-41.)
As People v. Coffman and Marlow went on to explain, a joint trial is not necessarily unfair even when the codefendants rely upon conflicting defenses. “If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials “would appear to be mandatory in almost every case.” ’ . . . ‘[A]lthough it appears no California case has discussed at length what constitutes an “antagonistic defense,” the federal courts have almost uniformly construed that doctrine very narrowly. Thus, “[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.” [Citation.] “Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” ’ ([People v. Hardy, supra, 2 Cal.4th at p. 168.]) When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance. (Ex parte Hardy (Ala. 2000) 804 So.2d 298, 305.)” (Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Tafoya (2007) 42 Cal.4th 147, 162.)
Here, the codefendants’ defenses were not irreconcilable. There was no inherent reason the jury could not have believed Treadaway committed the offenses as charged, but Logue’s involvement was under duress rather than voluntary. As discussed above, exclusion of further testimony from Logue that Treadaway raped her—over and above the statement the jury heard, that she did not “willingly” engage in sex with him—did not deprive Logue of the ability to meaningfully present her defense.
III.
Logue was convicted as an aider and abettor of the offenses Treadaway committed. She contends her convictions must be reversed because there was insufficient evidence she knowingly aided and abetted Treadaway in that she did not know Treadaway was armed and the shootings were independent, spontaneous acts by Treadaway.
The prosecution’s theory of the case against Logue was that she aided and abetted Treadaway in a residential burglary and robbery and that the shootings were a natural and probable consequence of those crimes. According to the prosecution, after Logue argued with Jason, she and Treadaway decided to “rip him off,” assuming Jason would not call the police because he was also a “drug guy”; Treadaway entered the house with intent to rob and to commit assault with a firearm, and Logue knew about this and helped it happen. The prosecutor argued: “Chelsea Logue let him in the house. Chelsea Logue dropped him off at the corner. He had a mask, he had a gun. Chelsea Logue took him there. Chelsea Logue opened the door for him. Chelsea Logue waited for him and waited for him outside. Chelsea Logue knew he was going in there to get stuff. She knew he was going to go in there with a firearm and she knew he was going in there with a mask. She knew that he was going to commit the burglary, the assault with a firearm and the attempted robbery, and she allowed it to happen. It wouldn’t have happened without Chelsea. So you have to ask yourself if somebody goes into a house with a gun, wearing a mask, is it a natural consequence, does it naturally flow. Is it probable that from going into another person’s house with a mask and a gun that somebody, that there could evolve from that the person with the gun coming into a situation where he uses that gun, points it at somebody and pulls the trigger with an intent to kill?”
The trial court instructed the jury, pursuant to CALJIC Nos. 3.01 and 3.02, that a person aids and abets the commission or attempted commission of a crime if he or she “by act or advice aids, promotes, encourages or instigates the commission of the crime,” with “knowledge of the unlawful purpose of the perpetrator” and “the intent or purpose of committing or encouraging or facilitating the commission of the crime,” and that an aider and abettor is liable for any crime committed by the principal that is a natural and probable consequence of the crime originally aided and abetted.
“ ‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’ (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 561.) [¶] ‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’ (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) [¶] . . . [¶] ‘[A]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 409; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095; People v. Durham (1969) 70 Cal.2d 171, 181.)
A “defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (People v. Prettyman (1996) 14 Cal.4th 248, 261.) In a case involving the natural and probable consequences doctrine, “the jury must decide whether the defendant (1) with knowledge of the confederate’s unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated.” (Id. at p. 267.) The question “is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)
People v. Prettyman, supra, 14 Cal.4th at page 267,used the facts of its case to make the point: “If, for example, the jury had concluded that defendant Bray had encouraged codefendant Prettyman to commit an assault on Van Camp but that Bray had no reason to believe that Prettyman would use a deadly weapon such as a steel pipe to commit the assault, then the jury could not properly find that the murder of Van Camp was a natural and probable consequence of the assault encouraged by Bray. (People v. Butts [(1965)] 236 Cal.App.2d [817,] 836.) If, on the other hand, the jury had concluded that Bray encouraged Prettyman to assault Van Camp with the steel pipe, or by means of force likely to produce great bodily injury, then it could appropriately find that Prettyman’s murder of Van Camp was a natural and probable consequence of that assault.”
In Butts, the case Prettyman cited above, Butts and his friend Otwell were involved in simultaneous but separate fistfights, during which Otwell pulled a knife and fatally stabbed one of the young men he was fighting. Finding the record did not contain substantial evidence to support a determination that Butts aided and abetted the homicide Otwell committed, the court explained: “Aside from speculation and suspicion, there is no evidence that Butts advised and encouraged use of a knife, that he had advance knowledge of Otwell’s wrongful purpose to use a knife, or that he shared Otwell’s criminal intent to resort to a dangerous weapon. There is no evidence that Otwell pulled or displayed the knife at any time before Butts rushed at Tom Abreu. From that point onward, the intoxicated Butts was thoroughly absorbed in absorbing punches from his two opponents. He could have had no awareness of the course of events in the Otwell-Barnard affray. The evidence shows Butts’ awareness of participation in a fist fight, not a knife fight. Thus there is no substantial evidence upon which to base a finding of guilt of aiding and abetting in a homicide.” (Butts, supra, 236 Cal.App.2d at pp. 836-837.)
The point of these cases is not that an aider and abettor must specifically know the perpetrator intends to use a particular weapon to commit an assault or murder, but that the perpetrator’s act must be a foreseeable consequence of the target offense the aider and abettor intended to facilitate. For example, People v. Montes (1999) 74 Cal.App.4th 1050, rejected the argument that the defendant could not be convicted as an aider and abetter of a shooting committed by one of his fellow gang members after an altercation with members of a rival gang because the defendant did not know the perpetrator had a gun. The altercation initially involved use of weapons including a heavy chain, a knife, a stick and a pipe, then one of the participants retrieved a gun from a nearby vehicle and shot the victim. The Montes court explained that while Butts was decided at a time when “street fighters commonly relied on fists alone to settle disputes,” so that the appearance of a knife in a fistfight could be deemed unexpected, in present day gang clashes “verbal taunting can quickly give way to physical violence and gunfire.” (Id. at pp. 1055-1056.)
Here, the evidence shows that Logue drove Treadaway to Jason’s house, left Treadaway off and entered the residence on her own, then returned outside to give a signal to Treadaway. The evidence suggested Logue opened the front door for Treadaway: Erick saw her walk to the door seconds before Treadaway entered the room and both Derry and O’Callaghan testified Logue had left the room just before Treadaway entered. The evidence thus demonstrated that Logue saw Treadaway enter the residence wearing a mask and carrying a gun. Logue remained by the doorway, smiling, as Derry and O’Callaghan fled the house; waited in the passenger seat after the shooting until Treadaway joined her; then remained in Treadaway’s company for two weeks following the incident. Logue argues there is no evidence she was aware Treadaway had a mask and gun when she took him to the residence, but she undoubtedly saw him enter with these articles and did nothing to prevent him from his course of action. While Logue might not be guilty if her failure to prevent the crime was due to her own fear (People v. Durham (1969) 70 Cal.2d 171, 181), the jury completely rejected Logue’s theory of defense, and the evidence of her conduct before, during and after the robbery supports the conviction.
Logue relies upon United States v. Andrews (9th Cir. 1996) 75 F.3d 552, to argue the shooting was a spontaneous, independent act by Treadaway. In Andrews,a group including Ivan and Paula armed themselves and set out to “get Lowery,” a person with whom they had previously been involved in an altercation. When the group found the car in which Lowery was driving with another group, Ivan and Lowery got out of their respective vehicles and Ivan immediately shot Lowery. Paula then fired into the car Lowery had been driving, killing one person and injuring others. Ivan’s convictions for aiding and abetting Paula’s offenses were reversed because the evidence showed an agreement to “get” Lowery and there was no evidence Ivan knew of or intended to facilitate Paula’s independent action against other individuals.
Paula’s conduct in Andrews was not a natural and probable consequence of the specific agreement demonstrated in that case. Paula did not shoot into the car as part of her group’s attempt to “get” Lowery; Lowery had already gotten out of the car and been shot by Ivan. Here, by contrast, the evidence showed that Logue assisted Treadaway in going to the Rossi home, knowing that Treadaway’s intention was to take something from Jason by means of a mask and gun, and the shooting occurred during this endeavor. It is abundantly clear that Treadaway’s shooting was a natural and probable consequence of such conduct. (See People v. Prettyman, supra, 14 Cal.4th at pp. 261, 267; People v. Fagalilo (1981) 123 Cal.App.3d 524, 534 [assault as natural and probable consequence of armed robbery].)
IV.
Logue next contends her convictions of the assault with a firearm and attempted murder of Jason Rossi must be reversed because the trial court failed to instruct the jury sua sponte on the defense of accident or misfortune. This contention is based on the fact that some of the eyewitness testimony described the gun discharging during the struggle between Treadaway and Jason. In essence, the argument assumes the jury could have believed Treadaway did not point the revolver at Jason before Jason lunged at Treadaway, and the gun discharged without any intentional conduct by Treadaway as the two young men struggled. Treadaway joins this argument as to his attempted murder convictions.
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983.)But the court has no duty to instruct on a defense that is not relied upon by the defendant, not supported by substantial evidence, or inconsistent with the defendant’s theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.)
Under section 26, subdivision (5), no crime is committed where the person who committed the charged act or omission did so “through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.” Thus, as relevant to the present case, CALJIC No. 4.45 instructs that when a person commits an act or makes an omission “through misfortune or by accident” under circumstances that do not show “criminal intent,” the person does not commit a crime.
CALJIC No. 4.45 also provides that no crime is committed where the person acts without “criminal negligence.” This reference does not apply where the charged offense can only be committed with general or specific intent, not merely criminal negligence, and this part of the instruction should not be given in such circumstances. (People v. Lara (1996) 44 Cal.App.4th 102, 110.)
“When a defense is one that negates proof of an element of the charged offense, the defendant need only raise a reasonable doubt of the existence of that fact. (People v. Tewksbury (1976) 15 Cal.3d 953, 963.) This is so because the defense goes directly to guilt or innocence. The trial court is required to instruct the jury on which party has the burden of proof and on the nature of that burden. (Evid. Code, § 502; People v. Simon (1995) 9 Cal.4th 493, 501.) The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime. (People v. Lara [, supra,] 44 Cal.App.4th 102, 110.)” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.)
Attempted murder requires the specific intent to kill, or “express malice.” (People v. Smith (2005) 37 Cal.4th 733, 739.) “Express malice requires a showing that the assailant ‘ “ ‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]” ’ (People v. Davenport (1985) 41 Cal.3d 247, 262, quoting People v. Velasquez (1980) 26 Cal.3d 425, 434.)” (People v. Smith, at p. 739.)
In arguing that there was substantial evidence the initial discharge of Treadaway’s gun, resulting in shooting Jason, was accidental, appellants rely upon People v. Acosta (1955) 45 Cal.2d 538. Acosta reversed a conviction of unlawful driving of a vehicle because of the trial court’s failure to give a requested jury instruction on accident or misfortune. The prosecution’s evidence showed that the defendant, in the back seat of a taxi, reached into the front seat and assaulted the driver, who slowed the cab down, opened the door and rolled out. Others on the highway observed the passenger get into the driver’s seat and the vehicle accelerate, run a red light and hit another vehicle, and a witness observed the defendant in the front of the cab when it came to rest. The defendant testified, however, that he did not hit the driver or get into the front seat but rather attempted to steer the cab by reaching from the back seat. (Id. at p. 540.) Acosta held the defendant was entitled to his requested instruction on accident because even if the jury disbelieved his testimony that he did not get into the front seat, it could have found the apparent “driving” of the car “was not with intent to drive or take it but was the mere unintended, confused result of the peculiar situation in which defendant found himself. For example, the jury could have found that defendant tried to stop the car and through ignorance or mistake put his foot on the accelerator instead of the brake.” (Id. at pp. 543-544.)
Unlike the present case, the defendant in Acosta requested the instruction on accident, thus imposing a stricter duty upon the trial court than its duty to give instructions sua sponte. (See People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Sedeno (1974) 10 Cal.3d 703, 716-717, overruled on other grounds in People v. Breverman, supra, 19 Cal.4th at p. 149.) Moreover, there was evidence in Acosta from which a reasonable juror could have concluded that the defendant lacked criminal intent and acted as he did by accident. Such evidence is lacking in the present case. Treadaway entered the Rossi household masked and armed with a loaded revolver. Although Jason was not certain about the precise sequence of events leading to the shooting, Erick, Derry and O’Callaghan all saw Treadaway point the gun directly at Jason before the scuffle during which the gun discharged. The evidence established that each shot from the gun required the hammer to be pulled back and the trigger pulled, and the position of the remaining bullet was consistent with the sequence of shots described by the witnesses. There was no evidence of any accidental discharge of the weapon.
Appellants’ reliance upon People v. Jones (1991) 234 Cal.App.3d 1303 to establish prejudicial error is also unavailing. Jones held that an instruction on accident should have been given sua sponte in a case where the defendant shot a police officer during a traffic stop, because “the primary thrust of the defense” was that the shotgun had discharged by accident (when the officer attempted to push it aside after the defendant pointed it at him) and the defendant’s testimony provided sufficient evidence that a reasonable juror could have concluded the defendant “had no criminal intent in acting as he had when the shotgun discharged.” (Id. at p. 1314.) Jones found the error harmless, however, because the jury convicted the defendant of attempted murder, thus finding the defendant had the specific intent to kill unlawfully another human being, and found true the allegations that the defendant attempted to commit “a willful, deliberate and premeditated” murder and intentionally inflicted great bodily injury upon the officer by discharging a firearm from a motor vehicle. (Id. at p. 1315.) The jury thus “necessarily rejected the evidence adduced at trial that would have supported a finding to the effect that defendant’s ‘accident and misfortune’ defense (meant to establish that the discharge of the shotgun had not been attended by any criminal intent or purpose) was valid.” (Id. at pp. 1315-1316; see People v. Sedeno, supra, 10 Cal.3d at p. 716.)
Although the Jones opinion does not describe the testimony that it found could demonstrate the defendant lacked criminal intent at the time the gun discharged, it does state the theory that the shotgun discharged accidentally when pushed aside by the officer. As stated above, the present case includes no evidence that Treadaway’s gun discharged accidentally; the hammer had to be cocked and the trigger pulled in order for the weapon to fire.
In any case, we are convinced there is no reasonable probability the jurors would have reached a different conclusion if the accident instruction had been given. (See People v. Breverman, supra, 19 Cal.4th at p. 178.) Treadaway entered the Rossi home wearing a mask and armed with a loaded revolver. Three witnesses saw him point the gun at Jason before the struggle in which Jason was shot. Even if the first shot was not fired until Jason made contact with Treadaway, the latter’s aiming the loaded gun directly at Jason belies the notion of an accidental shooting. The subsequent events also render any acceptance of an accidental discharge theory remote. Treadaway fired the gun four separate times, hitting Jason twice and Derry once. The third time he fired, the gun was pointed directly at Erick’s head, although this was a misfire and Erick was not actually shot. The three shots that were fired during a struggle each hit the individual with whom Treadaway was struggling at the time. There is virtually no chance a juror, viewing the evidence as a whole, would have believed any of these shots were accidental.
Under the jury instructions given, the jury could have convicted on the attempted murder counts only after finding that Treadaway harbored a specific intent to kill, and had to find that Treadaway “intentionally and personally discharged a firearm” in order to find the great bodily injury allegations true. Although no instruction on accident was given, Treadaway’s attorney argued the theory both in connection with the attempted murder charges and the enhancements based on intentional firing of the gun. As in Jones, the jury here necessarily rejected any evidence suggesting the revolver discharged accidentally.
V.
Logue also argues the trial court erred in admitting evidence that she engaged in identity theft. She maintains this evidence improperly portrayed her as the type of person who would commit a home invasion, thereby prejudicing her defense that she was an unwilling participant in the offenses.
Evidence Code section 1101, subdivision (a), “prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Because evidence of other crimes can be highly prejudicial, it should be admitted only if its probative value substantially outweighs its prejudicial effect. (Id. at p. 404.)
As described by the trial court, the issue arose at trial when Logue’s attorney asked her how the hotels she and Treadaway stayed in were paid for and Logue testified that at first she did not know, but later found out after Treadaway picked up “a box of receipts.” The court stated that although it had previously ruled identity theft evidence was not going to be admitted, it now appeared the documents might be relevant to show a prior relationship between Logue and Treadaway. Logue’s attorney argued that the documents did not demonstrate a prior relationship because they were all obtained after July 28, and the prosecutor agreed there was no evidence the documents were in the defendants’ possession before July 28. The prosecutor summarized the prosecution’s theory that the defendants planned to commit the offense, Logue set up Jason and took Treadaway to his home, the defendants fled together, abandoned the car they were in and obtained another car, then together, using identification from Rosey Elena Rivera Castro and various credit card numbers, reserved hotel rooms around the Bay Area. The court noted that in attempting to establish her defense of duress or coercion, Logue had to explain why she remained with Treadaway after the offenses; evidence from the notebooks suggested she was not under duress; and evidence indicating she practiced Rosey Rivera Castro’s signature and possibly signed hotel receipts could be taken as proving she was a voluntary participant in the sequence of events. In closing argument, the prosecutor used the identity theft evidence to make the case that Logue was a willing participant in the offenses, arguing that Logue assumed the identity of Rosa Elena Rivera Castro.
The trial court explained its rationale for admitting the Rosey Rivera Castro driver’s license: “The handwriting in the notebooks is very distinctive, at least to my eye, and I felt there was sufficient foundation to let the jurors make the final decision. They’re the trier of fact. [¶] By her practicing that signature and then now maybe by her signing some of these hotel bill receipts, these other documents, shows that maybe she was a willful participant in this matter. Maybe she was the mastermind of this robbery, this whole situation. That’s one possible interpretation.”
We find no abuse of discretion in the trial court’s ruling. Although the identity theft evidence related to events subsequent to the offenses at the Rossi home, Logue’s conduct after the offenses was relevant to a determination whether she aided and abetted Treadaway or acted, as she claimed, under duress (see pt. III of this opinion, ante). The evidence that Logue acted under the assumed name and practiced Castro’s signature tended to support the prosecution’s theory that she and Treadaway were jointly involved in a criminal endeavor, although the jury was free to accept her explanation that she acted under duress. In the overall context of this case, the risk that the jury would improperly use the identity theft as evidence of Logue’s propensity to commit the charged offenses was small: That Logue would falsely use another person’s identity does not strongly support an inference that she would participate in an armed robbery or assault. Rather, the risk was that if the jury believed Logue acted voluntarily in using Castro’s identity, it would infer she acted voluntarily at earlier points in the association with Treadaway as well. In light of the defense Logue raised, this was not improper.
VI.
Treadaway contends that the trial court erroneously prevented him from presenting a “claim of right” defense to the charges of attempted robbery by limiting certain evidence to Logue, and that this error was also prejudicial with respect to the attempted murder charges. As described above, Logue testified that at Young’s house, Treadaway approached her in an intimidating and threatening manner and told her Jason “has something of mine and I want it back and you’re taking me there.” This testimony was admitted over objection, limited to its bearing on Logue’s state of mind and subsequent actions. The trial court rejected Treadaway’s attempt to have the statement admitted as to him under Evidence Code section 1250.
During the discussion of this issue, the court rejected Logue’s attorney’s suggestion that the statement was an admission by Treadaway, noting that the statement was self-serving. The court reminded the jury of the limitations on the evidence on two subsequent occasions. When Logue repeated the statement later in her direct testimony, the court told the jury: “Once again, just as it related to her state of mind, not for the truth of those words spoken.” On cross-examination, Treadaway’s attorney had Logue review her statement to the police, which similarly related Treadaway’s motivation, and the court told the jury: “Once again, ladies and gentlemen, that last question and answer would relate to Ms. Logue, not relate to Mr. Treadaway.” The jury was reminded in instructions at the conclusion of the case that evidence admitted for a limited purpose was not to be considered for any purpose other than the one for which it was admitted. (CALJIC No. 2.09.)
Under California law, “ ‘a bona fide belief, even though mistakenly held, that one has a right or claim to the property [taken in a robbery] negates felonious intent. [Citations.].’ ” (People v. Tufunga (1999) 21 Cal.4th 935, 950, quoting People v. Butler (1967) 65 Cal.2d 569, 573.) The claim of right defense is limited to “specific personal property in which the defendant in good faith believes he has a bona fide claim of ownership or title” and does not extend “to robberies perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated . . . .” (People v. Tufunga, at p. 956.) Treadaway contends that the evidence he told Logue he wanted to get “something of mine” back from Jason, along with evidence that Treadaway did not demand money at the Rossi house, could have constituted substantial evidence of a claim of right defense.
The claim of right defense was argued on Logue’s behalf: Her attorney told the jury she could not be convicted if it determined that she honestly believed she was going to Jason’s house to help Treadaway recover specific property to which he had a good faith claim of ownership. The trial court instructed the jury on this defense.
The jury was instructed: “An essential element of the crime of robbery is a specific intent permanently to deprive the alleged victim of his or her property. That specific intent does not exist if the alleged perpetrator has a good faith claim of right to title or ownership of the specific property taken from the alleged victim. In other words, if a perpetrator seeks to regain possession of property in which she honestly believes he has a good faith claim of ownership or title, then she does not have the required criminal intent. [¶] However, the required criminal intent exists if, rather than seeking to recover specific property, the perpetrator is attempting to satisfy, settle or otherwise collect on a debt liquidated or unliquidated, and specifically intends permanently to deprive the alleged victim of his or her property in the furtherance thereof.” (CALJIC No. 9.44.)
Treadaway argues that the statement in question contains two assertions—first, that Jason had something belonging to Treadaway, and second, that Treadaway intended to use Logue to help him recover the “something” from Jason. Treadaway dismisses the first as irrelevant because the material issue was his belief in his right to ownership, not the truth of whether Jason had the “thing” at issue. The second, he asserts, is admissible whether viewed as hearsay—a declaration of his state of mind—or as circumstantial evidence of his state of mind. We review the trial court’s ruling on the admissibility of the statement as to Treadaway for abuse of discretion. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.)
“For purposes of the state-of-mind exception to the hearsay rule, a statement of state of mind is one that (1) reflects the declarant’s mental state, and (2) is offered, among other purposes, to prove the declarant’s conduct (Evid. Code, § 1250, subd. (a)(2)), including the declarant’s future conduct in accordance with his or her expressed intent (e.g., People v. Majors (1998) 18 Cal.4th 385, 404; People v. Alcalde (1944) 24 Cal.2d 177, 185-188), unless the statement was made under circumstances indicating lack of trustworthiness (Evid. Code, § 1252; see id., § 1250, subd. (a)).” (People v. Griffin (2004) 33 Cal.4th 536, 578.)
Evidence Code section 1250 provides in pertinent part: “(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”
“The evidence admitted under section 1250 is hearsay; it describes a mental or physical condition, intent, plan, or motive and is received for the truth of the matter stated. (See 1 Witkin, Cal. Evidence (3d ed. 1986) The Hearsay Rule, § 735, p. 716.) If offered to prove the declarant’s state of mind, the statement may be introduced without limitation, subject only to section 352,” if the declarant’s state of mind has been placed in issue. (People v. Ortiz, supra, 38 Cal.App.4th at p. 389.)
“In contrast, a statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay. It is not received for the truth of the matter stated, but rather whether the statement is true or not, the fact such statement was made is relevant to a determination of the declarant’s state of mind. (See 1 Witkin, [Cal. Evidence, supra, The Hearsay Rule, § 735,] at p. 716.) Again, such evidence must be relevant to be admissible—the declarant’s state of mind must be in issue. ([Evid. Code,] § 210.) A limiting instruction is required with declarations used as circumstantial evidence of the declarant’s mental state; that is, the declaration is not received for the truth of the matter stated and can only be used for the limited purpose for which it is offered. ([Evid. Code,] § 355.)” (People v. Ortiz, supra, 38 Cal.App.4th at p. 389.)
Treadaway’s purpose in seeking admission of the statement Logue related was to prove that he did notgo to Jason’s house with an intent to commit robbery, but only with an intent to recover property he owned. As evidence that Treadaway in fact believed what the statement said he believed, the statement was hearsay, admissible if made in trustworthy circumstances. (Evid. Code, §§ 1250, 1252.) Treadaway’s attempt to portray the circumstances here as trustworthy is not convincing: While he argues the statement was made to an accomplice in advance of the crime, Logue related the statement as part of her description of Treadaway forcing her to participate in his endeavor. In that context, Treadaway would have had reason to downplay his reasons for going to Jason’s house so as to minimize Logue’s resistance to accompanying him. As the trial court noted, the statement was self-serving. Treadaway was not entitled to rely on a defense he could present only through hearsay evidence. “ ‘A defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.’ ” (People v. Edwards (1991) 54 Cal.3d 787, 820, quoting People v. Harris (1984) 36 Cal.3d 36, 69.)
In any event, any error in limiting the evidence to Logue would have been harmless, even assuming it rose to the level of constitutional error—removal of a theory of defense—as Treadaway urges. It borders on the incredible to assume that a rational jury would have entertained a reasonable doubt as to Treadaway’s intent based on Logue’s testimony. The statement Logue related did not specify what “thing” Treadaway sought to recover from Jason and no other evidence in the case suggested what it might have been. The only suggestion of a connection between Treadaway and Jason suggested by the evidence was their mutual involvement with drugs: According to Young, both had been at his house on occasion. If the “thing” Treadaway wanted back from Jason related to illegal drug use, the claim of right defense would not be available. The defense “is not available where the claim of right to the property is founded in a ‘notoriously illegal’ transaction. (People v. Hendricks (1988) 44 Cal.3d 635, 642 [fee collection for prostitution services]; People v. Gates (1987) 43 Cal.3d 1168, 1182 [distribution of proceeds from forgery ring]; see also People v. Johnson (1991) 233 Cal.App.3d 425, 457-458 [payment for a drug deal].)” (People v. Tufunga, supra, 21 Cal.4th at pp. 953-954, fn. 5.) More fundamentally, the only evidence that Treadaway believed he had a right to recover property from Jason was Logue’s testimony that he made this statement. The jury completely rejected Logue’s testimony that she was not a willing participant in Treadaway’s offenses. There is simply no rational basis upon which the jury could have disbelieved Logue’s defense in its entirety, yet believed that Treadaway made this statement to her.
VII.
Treadaway next argues the trial court erred in instructing the jury on circumstantial evidence pursuant to CALJIC No. 2.01, because the case hinged on assessment of direct evidence. The jury was instructed that a finding of guilt can be based on circumstantial evidence only if the circumstances “cannot be reconciled with any other rational conclusion,” that “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt,” that “if the circumstantial evidence permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his or her innocence, you must adopt that interpretation that points to the defendant’s innocence” but, if “one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (CALJIC No. 2.01.)
The full instruction was given as follows: “[A] finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the defendant is guilty of the crime, but two, cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his or her innocence, you must adopt that interpretation that points to the defendant’s innocence and reject that interpretation that points to his or her guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (CALJIC No. 2.01.)
Treadaway argues that this instruction should not have been given because the case was based mainly on direct evidence and that the instruction tended to prejudice the defense, which depended on the jury accepting as believable “a scenario in which a masked man enters a house, point[s] and waves a .38 revolver at the occupants, yet does not intend to kill in the ensuing struggle when the occupants assail the assailant.”
CALJIC No. 2.01 is necessary when “the prosecution substantially relies on circumstantial evidence to prove its case. . . . [W]here circumstantial inference is not the primary means by which the prosecution seeks to establish that the defendant engaged in criminal conduct, the instruction may confuse and mislead, and thus should not be given.” (People v. Anderson (2001) 25 Cal.4th 543, 582.) Here, while the prosecution presented direct evidence of the circumstances of the shooting, none of the eyewitnesses were able to identify the masked man. Indeed, as indicated above, Jason initially suspected a different individual was the perpetrator of the offenses. The prosecution’s case sought to prove Treadaway’s involvement solely through circumstantial evidence, including Young’s testimony that Treadaway and Logue left together in his car; that the gun used in the shooting was found in that car, along with the mask and sweatshirt the shooter was wearing, with blood consistent with Jason’s DNA profile on the sweatshirt and saliva consistent with Treadaway’s genetic profile on the mask; and that Walton identified Treadaway from a photographic lineup as the person he saw with Young’s car at the Niles Canyon parking lot. The direct evidence of Treadaway’s involvement came only from Logue, when she presented her case after the prosecution rested. In fact, in closing argument, the prosecutor told the jury Logue was not a credible witness and Treadaway’s identification as the shooter was “proved overwhelmingly absent Chelsea Logue.” And, of course, the prosecution relied on circumstantial evidence to prove the specific intent required for the various offenses charged against both defendants. Thus, the premise of Treadaway’s argument is false: The trial court did not err in instructing the jury in accordance with CALJIC No. 2.01—as, in fact, both the prosecution and Treadaway’s counsel requested.
In People v. Wilson (1992) 3 Cal.4th 926, 942-943, the California Supreme Court rejected an argument that CALJIC No. 2.01 “allows the jury to convict merely by finding the prosecution’s theory of the case ‘reasonable’ and the defense theory of the case ‘unreasonable,’ thus compelling the jury to reject a defense theory which is unreasonable but also true.” Wilson explained: “ ‘ “It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ (People v. Crandell (1988) 46 Cal.3d 833, 874, quoting People v. Burgener (1986) 41 Cal.3d 505, 538; see People v. Magana (1990) 218 Cal.App.3d 951, 956.) Here, CALJIC No. 2.01 makes clear that circumstantial evidence is sufficient to prove guilt only if it ‘cannot be reconciled with any other rational conclusion.’ The words ‘rational’ and ‘reasonable’ in the context of CALJIC No. 2.01 must be read in conjunction with the instruction on reasonable doubt (CALJIC No. 2.90). (See People v. Magana, supra, 218 Cal.App.3d at p. 956.) That instruction informs the jurors that in the event they harbor a reasonable doubt concerning guilt, they are required to acquit. Reasonable doubt is that state of the case where consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. (§ 1096.)
“Therefore, a reasonable juror would understand that, taken in context, the relevant language of CALJIC No. 2.01 (and the corresponding language of CALJIC Nos. 8.83 and 8.83.1) must be considered in conjunction with the ‘reasonable doubt’ standard. Thus, the jury properly can find the prosecution’s theory as to the interpretation of the circumstantial evidence ‘reasonable’ and alternate theories favorable to the defense ‘unreasonable,’ within the meaning of these instructions, only if the jury is convinced beyond a reasonable doubt of the accuracy of the prosecution’s theory. (People v. Magana, supra, 218 Cal.App.3d at p. 956.) The paragraph criticized by defendant therefore ‘does not tell the jury to reject interpretations of circumstantial evidence favorable to the defense simply because they are unusual or bizarre, [but] merely tells them to reject interpretations of circumstantial evidence that are so incredible or so devoid of logic that they can, beyond a reasonable doubt, be rejected.’ (Ibid.)” (People v. Wilson, supra, 3 Cal.4th at p. 943.)
Treadaway suggests that because the prosecution’s case in Wilson was heavily circumstantial, the case did not involve the danger of creating confusion by “intimat[ing] to the jury that the prosecution was relying for a conviction upon circumstantial evidence.” (People v. Lapara (1919) 181 Cal. 66, 70.) We are not persuaded that this danger existed in the present case. The prosecution did rely on circumstantial evidence, and the jury was instructed on the difference between direct and circumstantial evidence, so there was no reason for jurors to mistakenly believe the instruction on circumstantial evidence applied to the direct evidence presented.
VIII.
Treadaway’s sentence of 114 years eight months to life included, as the base term, an upper term of nine years for the attempted murder of Jason Rossi and consecutive terms for the attempted murder of Derry, the burglary, the attempted robbery of O’Callaghan, the attempted robbery of Erick Rossi, and the possession of firearm by a felon. In imposing the upper term sentence, the court stated, “I do find that the circumstances and [sic] aggravation outweigh the mitigating, so I impose the upper term of nine years in the state prison for count 2.”
Treadaway contends the trial court violated his constitutional rights to notice, proof beyond a reasonable doubt, and jury trial, by imposing the upper term and consecutive sentences because no aggravating factors were charged in the information, the jury did not make findings on aggravating factors and the judge, under law controlling at the time of the sentencing hearing, was required to utilize only a preponderance of the evidence standard of proof.
In Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 826] (Cunningham), the United States Supreme Court concluded that California’s determinate sentencing law “violates a defendant’s right to jury trial because ‘under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 863-864].) In its seminal decision in Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490, the high court held that ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ In Blakely [v. Washington (2004) 542 U.S. 296 (Blakely)], the court clarified that the prescribed ‘ “statutory maximum” ’ for purposes of the right to a jury trial is not necessarily the maximum penalty stated in statute for the crime; rather, it is ‘the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ (Blakely, supra, 542 U.S. at p. 303.)” (People v. Black (2007) 41 Cal.4th 799, 809.) Cunningham held that the statutory maximum under California’s DSL is the middle term, and that the DSL violates the Sixth Amendment because it “ ‘allocates to judges sole authority to find facts permitting the imposition of an upper term sentence.’ ” (People v. Black, supra, 41 Cal.4th at pp. 809-810, quoting Cunningham, supra, 127 S.Ct. at p. 870.)
People v. Black, which was decided after Treadaway filed his opening brief on this appeal, went on to hold that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. ‘Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.’ (Harris v. United States (2002) 536 U.S. 545, 558.) . . . [¶] The facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ (Blakely, supra, 542 U.S. at p. 309.) Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (People v. Black, supra, 41 Cal.4th at p. 813.)
Treadaway’s probation report listed seven aggravating factors, including three related to his past criminal history: That his “prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2) ), that he had served three prior prison terms (rule 4.421(b)(3)), and that his prior performance on probation and parole was unsatisfactory (rule 4.421(b)(5)). The parties stipulated during the trial, for purposes of the charge of possession of a firearm by a felon, that appellant had suffered a prior felony conviction.
All references to rules will be to the California Rules of Court.
People v. Black, supra, 41 Cal.4th 799, reaffirmed that “the right to a jury trial does not apply to the fact of a prior conviction” or to the “determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness.’ ” (Id. at pp. 818-820, quoting rule 4.421(b)(2).) The same is true for the fact that a defendant has served a prior prison term. (People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.)
Treadaway urges the sentencing decision cannot be justified by reference to his past convictions because the trial court did not invoke this basis for the decision. As indicated above, the trial court stated it was imposing the upper term because the aggravating factors outweighed the mitigating factors, but did not specify the particular factors upon which it was relying.
Treadaway’s reliance upon People v. Cardenas (2007) 155 Cal.App.4th 1468 in this regard is unavailing. In that case, the defendant’s criminal record consisted of a few misdemeanor convictions, and these were neither proposed by the prosecution nor relied on by the court as grounds for imposing an upper term. (Id. at p. 1480.) The prosecution asked the court to impose the upper term because the defendant induced others to participate in the commission of the crime and occupied a position of leadership in its commission, because the crime was committed in a manner indicating planning and sophistication. The court found the first of these reasons unpersuasive, but found that the offense involved planning and sophistication. (Id. at pp. 1479-1480.) Cardenas held that the factors the trial court considered, and the one it relied upon, were “constitutionally deficient under Cunningham and its predecessors,” and that the upper-term sentence could not be saved by reliance on a minimal record of misdemeanor convictions that the prosecution did not even urge as a basis for the sentence. (Id. at pp. 1480-1481.)
Here, the prosecution did urge reliance on the facts relating to Treadaway’s criminal history, which was extensive. The probation report reflects that Treadaway suffered four juvenile adjudications between 1980 and 1985, with two commitments to the California Youth Authority. As an adult, between November 1985 and July 2000, he was convicted of seven misdemeanors and six felonies, and he was sentenced to state prison in 1987, 1992 and 1997. According to the probation report, Treadaway was ultimately discharged from parole as of July 31, 2003; the present offenses were committed on July 28, 2004. The probation report, after stating that Treadaway’s current offenses rendered him statutorily ineligible for probation, stated: “Despite the previous court intervention by the courts, probation and parole, he continues to re-offend. He has chosen his path in life, and it is not a good one. Essentially, the defendant has continued to prove himself a threat to the community safety based upon his past failures to comply with the law. The undersigned, law enforcement and the community in general, feel the defendant should be sentenced accordingly.” The prosecutor asked the court to impose aggravated terms as the “only just result” because the “aggravating factors clearly outweigh the mitigating factors and taking into consideration all of the facts and circumstances surrounding the case.” The court’s remarks do not suggest it relied exclusively on factors other than appellant’s criminal history and, given the extent of that history and fact that it was highlighted for the court, there is simply no ground for assuming the court disregarded it.
Even if we entertain the possibility that the trial court placed no reliance on Treadaway’s criminal history, the failure to have the jury determine the facts underlying the aggravating factors based on the current offenses would not be fatal to the sentence. People v. Sandoval (2007) 41 Cal.4th 825, 839, explained that “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” That is the case here.
The first aggravating factor listed by the prosecutor and the probation officer was that the “crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” (Rule 4.421(a)(1).) In Sandoval, the Supreme Court had “no doubt” that the crime—a shooting in which two victims were killed and one hospitalized for two weeks—involved “great violence.” (Sandoval, supra, 41 Cal.4th at p. 842.) Nevertheless, the Court could not find the aggravating factor true beyond a reasonable doubt: The defendant was not the actual shooter and the jury’s verdict, finding her guilty of manslaughter rather than murder, indicated it rejected the prosecution’s theory that she recruited others with the premeditated intent to ambush and kill, or at least assault, the victim. Accordingly, had the question been submitted to it, the “jury reasonably could have concluded that this factor did not apply to defendant because, although the crime involved great violence on the part of others, that violence did not evidence a ‘high degree of cruelty, viciousness, or callousness’ ([rule 4.421(a)(1)]) on defendant’s part.” (Sandoval, at p. 843.)
In the present case, by contrast, it was Treadaway himself who used “great violence” and inflicted “great bodily harm” upon some of his victims and threatened others with the same. It is clear beyond a reasonable doubt that the jury would have found true, beyond a reasonable doubt, at least the aggravating factor under rule 4.421(a)(1).
Treadaway’s contention that his constitutional rights were violated by the court’s imposition of consecutive sentences was rejected by People v. Black, supra, 41 Cal.4th at page 806: “[N]either Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms.”
IX.
Finally, Treadaway contends the section 12022.53, subdivision (d), life-term enhancements imposed on counts 4 and 6 must be stayed under section 654, because the trial court imposed these enhancements on counts 2 and 3, involving the same victims. Counts 4 and 6 charged the attempted robbery of Jason Rossi and Marcus Derry, respectively. Counts 2 and 3 charged the attempted murder of Jason Rossi and of Marcus Derry, respectively.
The reporter’s transcript and abstract of judgment demonstrate that the trial court did, in fact, stay the section 12022.53, subdivision (d), enhancements on counts 4 and 6. Thus, there is no basis for Treadaway’s claim of error in this regard.
The judgment is affirmed. Logue’s petition for writ of habeas corpus is denied.
We concur: Lambden, J., Richman, J.
Shortly prior to this point, outside the presence of the jury, the court referred to Logue’s attorney having previously indicated he wanted to move for a mistrial. The ensuing discussion concerned the admissibility of identity theft evidence. Logue’s counsel argued that the trial was getting “one sided,” with the court admitting evidence as to her but not Treadaway. The court denied a mistrial or severance.
In arguing Logue’s motion for a new trial, her attorney noted that he and Treadaway’s counsel had each made motions for severance and for mistrial, and discussed the exclusion of testimony that Treadaway raped Logue as one of the ways in which he believed Logue had been denied a fair trial.