Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA300425, Drew E. Edwards, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang, and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
William Eldridge Tyler appeals his conviction for first degree murder and second degree attempted robbery. He argues that the prosecutor committed prejudicial misconduct; the trial court erred in giving jury instructions on consciousness of guilt and flight, and that the trial court erred in imposing concurrent sentences for the convictions. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On the night of January 17, 2006, Tony Ellison was shot and killed in an alleyway between 70th Street and 71st Street in Los Angeles. Moments before the shooting, Ellison encountered an acquaintance, Victor Sandoval, on 70th and 71st Street near the alleyway. Sandoval, who was outside waiting for a friend, exchanged greetings with Ellison and then saw him turn left on 70th Street into the alleyway. Seconds later, Sandoval heard gunshots and saw appellant, who was wearing dark clothing and a black skullcap, run through the alley towards 71st Street. Sandoval recognized appellant from the neighborhood. Sandoval walked into the alleyway and saw Ellison lying on the ground. Over the following week, Sandoval saw appellant twice in the neighborhood. He later identified appellant from a photographic six-pack.
On the night of the shooting, Sonshara Brown was driving near 70th and 71st Street, with her son and a friend, Teresita Trapp. Around 10:00 p.m., Brown pulled into a driveway to drop Trapp off. As the two women talked in the car, Brown saw Ellison and another male standing near an alleyway. Brown then heard a gunshot, turned around and observed Ellison fall down. Brown, whose vision was obstructed by another car, saw the second male extend his arm towards the ground. She heard two more shots and then saw the shooter run down the alley. Brown described the shooter as a slim male wearing dark clothing and something on his head. She could not identify appellant from a photographic lineup.
Paramedics found several rocks of cocaine and $459 on Ellison’s person. The police recovered a video of the shooting captured by a security camera from a nearby residence. On February 22, 2006, Los Angeles Police Officers Gilberto Gaxiola and Jesse Reyes observed appellant near a home on 74th Street with known members of the Crips gang. The officers spoke with appellant concerning an unrelated matter and appellant admitted he was a member of the 7-Trey Gangster Crips (7-Trey Gangsters), a subset of the Crips. At a later point, Officer Reyes viewed the security camera footage from the Ellison shooting and identified appellant as the shooter. Officers Gaxiola and Reyes arrested appellant on March 29, 2006 for the Ellison shooting. He was 16 years old at the time.
Following his arrest, appellant was interviewed by Los Angeles Police Detectives Johnny Villa and Miguel Terrazas. Appellant stated he knew Ellison as a member of the 66 East Coast Crips (East Coast Crips). After initially denying his involvement, appellant admitted shooting Ellison three times after attempting to rob him of drugs and money. Appellant left the room for a break. He returned shortly and detectives resumed the interrogation, which was being recorded. Appellant renewed his denials, offering several different explanations for Ellison’s death. Appellant claimed he ran into Ellison in the alleyway, said hello and turned to leave the other way as someone came up and shot Ellison. Appellant ran home after the shots were fired, and later heard that the shooter was a member of a rival gang, the Swans. He changed his story once more. Appellant stated that he pulled out his gun to rob Ellison, but Ellison reached for it, and as they struggled, Ellison accidentally shot himself. The gun accidentally discharged two more shots into Ellison.
The first portion of the interview, prior to the break, was not recorded. Detective Villa testified as to what transpired.
Appellant was charged with first degree murder with special circumstances and attempted second degree robbery. It was alleged that appellant was at least 14 years-old when he personally killed the victim, and that he was at least 16 year-old when he committed the offense. It also was alleged that appellant personally used, intentionally discharged, and proximately caused death with a firearm. Finally, it was alleged that both crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang. Appellant was found guilty on both counts. The jury found all special allegations to be true, except for the gang enhancement as to the murder conviction. The court sentenced appellant to state prison for 25 years to life for the murder conviction, plus 25 years to life for the firearms allegation. The court imposed a concurrent two-year sentence for the attempted robbery conviction. This timely appeal followed.
DISCUSSION
I
Appellant claims the prosecution committed two acts of misconduct, violating his constitutional right to due process. A prosecutor’s misconduct violates the Fourteenth Amendment of the United State Constitution when it “infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) Conduct that does not result in an unfair trial may still constitute prosecutorial misconduct under California law if it involves “the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (Ibid.)
Respondent argues that appellant forfeited both claims of prosecutorial misconduct because he did not request an admonition at either time. The defense forfeits a claim of prosecutorial misconduct unless it makes a timely objection at trial and requests an admonition. (People v. Clair (1992) 2 Cal.4th 629, 662.) Otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (Ibid.) However, the defendant need only request an admonition if practicable. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) Accordingly, failure to make a request for admonition does not forfeit the claim if the party made a timely objection but was immediately overruled. (Ibid.) Here, appellant’s trial counsel made timely objections to both acts of alleged misconduct. The court promptly overruled both objections, and appellant’s counsel did not request an admonition. Thus, because both objections were overruled, counsel’s “failure to request a curative admonition seems justified.” (People v. Stitely (2005) 35 Cal.4th 514, 559-560, fn. 21.)
Appellant argues the prosecution made an improper argument as to lack of remorse. During closing argument, the prosecution argued that appellant appeared unremorseful of his crimes because, after the incident, he was seen in the area of the shooting, leisurely spending time with friends and gang members. Appellant’s trial counsel objected but the objection was overruled. The prosecutor continued, stating appellant went on “[l]iving life normally before he was arrested on this matter. He had no remorse for what he did. He was proud of his gang... [and] of what he did. And in this case both the attempted robbery and the murder were done for the benefit of the gang.”
Appellant concedes that the prosecution is permitted to speak to his lack of remorse. (See People v. Turner (2004) 34 Cal.4th 406, 435-436.) But, he argues that in this case, the argument was improper because it interjected the prosecutor’s personal opinion as to appellant’s guilt. A prosecutor cannot interject a personal opinion or belief on the defendant’s guilt if there is a substantial danger that the jury will believe the comments are based on evidence or knowledge not introduced at trial. (People v. Lopez (2008) 42 Cal.4th 960, 971.) Not all expressions of personal belief are improper; rather, the comments must be evaluated in the context in which they were made to determine whether there is a substantial risk that the jury would consider the comments to be based on evidence not presented at trial. (Ibid.; see also People v. Mayfield (1997)14 Cal.4th 668, 782 [expressions of personal belief are not improper if it is clear from context that the belief is based on the evidence presented to the jury].)
Here, the prosecutor presented evidence of appellant’s visible presence in the community after the shooting as circumstantial evidence of appellant’s gang affiliation and motivation. Her conclusions as to appellant’s lack of remorse directly followed a recitation of established facts. Thus, there was no risk that the jury could view these comments as based on evidence not presented at trial. In this context, it was not deceptive or reprehensible to argue that appellant seemed willing to remain visible in the community with other gang members after the shooting. Rather, the prosecutor exercised her “right to fully state [her] views as to what the evidence shows and to urge whatever conclusions [she] deems proper.” (People v. Lewis (1990) 50 Cal.3d 262, 283.)
Appellant next argues the prosecutor improperly attacked his trial counsel’s credibility by ridiculing counsel’s closing argument. During closing argument, appellant’s trial counsel argued that appellant was coerced into giving a false confession, because he was tired, young, and much smaller than the interrogating detectives. On rebuttal, the prosecutor stated that appellant was “not your normal 16-year-old, ” but a gangster who knew how to talk to police and was not intimidated by the detectives. The prosecutor conceded Detective Villa had a loud voice but then asked the jury if the detective’s loud voice would prompt them to confess to murder. Appellant’s counsel objected but was overruled. The prosecutor called the coercion argument “ridiculous.” Defense counsel did not object to the use of that word.
Appellant seems to argue that calling his coercion defense “ridiculous” necessarily implicated his trial counsel’s integrity. We find no authority to support this argument. Personal attacks on the integrity of opposing counsel are included within the deceptive or reprehensible methods constituting prosecutorial misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) However, the prosecutor may make fair comments about the evidence presented by the defense. (People v. Hernandez (1962) 209 Cal.App.2d 33, 36-37.) For instance, “[a]n argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47; see also People v. Breaux (1991) 1 Cal.4th 281, 305.) Moreover, a prosecutor enjoys greater latitude when responding to the defense’s argument and “otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, do not constitute misconduct.” (People v. McDaniel (1976) 16 Cal.3d 156, 177.)
In People v. Breaux, supra, 1 Cal.4th at page 305, the prosecutor compared defense counsel’s closing argument to law school trial tactics where students are taught “‘that if you don’t have the law on your side, argue the facts. If you don’t have the facts on your side, argue the law. If you don’t have either one of those things on your side, try to create some sort of a confusion with regard to the case because any confusion at all is to the benefit of the defense.’” (Ibid.)The Supreme Court held the comment did not improperly impugn defense counsel’s integrity. Rather, “in context, the prosecutor could only have been understood as cautioning the jury to rely on the evidence introduced at trial....” (Id. at p. 306.) Here, the prosecutor did not make any comments directed toward appellant’s trial counsel or in reference to his overarching strategy. The prosecutor’s characterization went to the plausibility of one argument. When read in context, the comments do not suggest that appellant or appellant’s counsel was attempting to deceive the jury. And while appellant objects to the particular use of the word “ridiculous, ” that language falls short of reprehensible methods constituting prosecutorial misconduct. (See People v. Stitely, supra, 35 Cal.4th at pp. 559-560 [not improper for the prosecutor to warn the jury not to “fall[] for” defense counsel’s “‘ridiculous’” efforts to let the defendant “‘walk’” free; nor was it improper to describe counsel’s attack of victim as “‘outrageous’”]; see also People v. Dykes (2009) 46 Cal.4th 731, 771-772 [prosecutor’s comment during closing argument that he was “‘shocked’” that someone of defense counsel’s reputation would interject race into the trial was not prejudicial misconduct].)
II
Appellant argues the court’s instruction on consciousness of guilt was unconstitutional on its face and as applied. At trial, the court gave CALCRIM No. 362, stating: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show that he was aware of his guilt of the crime and you may consider it in determining guilt.... However, evidence that the defendant made such a statement cannot prove guilt by itself.”
Appellant first argues the trial court violated his due process rights because there was insufficient evidence to support the instruction. An instruction on consciousness of guilt is properly given when evidence supports a rational inference that prior to trial, the defendant made false statements concerning the charged offense. (People v. Barnwell (2007) 41 Cal.4th 1038, 1057.) Here, appellant gave police at least three conflicting accounts of the shooting. Each described a different level of involvement in the shooting and was inconsistent with the others. In light of these discrepancies, there was an ample basis to support the inference that appellant made false statements with the knowledge of their falsity. (See People v. Howard (2008) 42 Cal.4th 1000, 1024-1025 [court properly gave consciousness of guilt instructions when evidence showed defendant made five inconsistent statements to police].) Appellant contends the instruction was unnecessary because he ultimately retracted the statements and confessed to the killing. Yet, this argument is undermined by appellant’s own contention that he was coerced into making a false confession. In addition, after confessing to the shooting, the appellant reverted to denying or limiting his culpability.
Appellant also argues that CALCRIM No. 362, on its face, violates his due process rights because it is not reciprocated by an opposite instruction on an inference of innocence. Courts have repeatedly rejected arguments attacking the constitutionality of this instruction (People v. Howard, supra, 42 Cal.4th at p. 1025; see also People v. Kipp (1998) 18 Cal.4th 349, 375, and cases cited), and we do so here. Under appellant’s argument, due process requires that any instruction which permits an inference of guilt must be mirrored by an instruction of innocence in the opposite factual situation, and whenever there is no evidence to support a particular inference, the jury must be instructed not to draw it. Not only is this requirement practically infeasible, as it would require an almost infinite number of instructions in every case, it is also unsupported by the law. Appellant cites Wardius v. Oregon (1973) 412 U.S. 470, 474, footnote 6, which held that nonreciprocal discovery laws benefiting the prosecution violated the defendant’s right to due process. We find no authority that extends reciprocal discovery to jury instructions.
We reject respondent’s argument that appellant forfeited his constitutional claim by not specifically raising it at trial. Appellant’s trial counsel objected to CALCRIM No. 362, stating that it unfairly pinpointed appellant’s conduct. We may review any jury instruction that affects a defendant’s substantial rights even if no objection was made at trial. (Pen. Code, § 1259.) Because appellant contends the instruction unfairly restricted his right to due process and to be presumed innocent, his failure to object does not bar review of the instruction. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1132.)
The California Supreme Court in People v. Cowan (2010) 50 Cal.4th 401, 473-474, rejected this exact argument in relation to consciousness of guilt evidence. In that case, the defendant challenged the trial court’s refusal to allow him to present evidence of his offer to talk to police as proof of innocence. Citing Wardius v. Oregon, supra, 412 U.S. 470, the defendant argued that the disparate treatment afforded consciousness of guilt and consciousness of innocence evidence under California law violated his due process rights. The Supreme Court rejected the argument, noting that there are already constitutional limits to the prosecution’s ability to use the defendant’s lack of cooperation with police as evidence of guilt. (Id. at p. 474.) Similarly, due process is already protected by the requirement that all jury instructions must be supported by sufficient evidence. (See People v. Smith (1956) 142 Cal.App.2d 287, 294 [“The court properly performs its constitutional functions when it instructs the jury upon any material question upon which any substantial evidence has been introduced....”]; see also People v. Eid (2010) 187 Cal.App.4th 859, 879 [doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused].)
Appellant cites People v. Moore (1954) 43 Cal.2d 517, 526-527, for the proposition that jury instruction should be impartial between the prosecution and the defense. That case dealt with the language of jury instructions, not the reciprocity between instructions. CALCRIM No.362 is impartially written. The instruction merely articulates what evidence the jury may consider when determining guilt and expressly warns that evidence of false or misleading statements cannot alone prove guilt.
III
Appellant next claims the trial court should not have given instructions on flight because he advanced a misidentification defense.
Penal Code section 1127c requires an instruction where there is evidence of flight: “In any criminal trial... where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.” (See also People v. Mendoza (2000) 24 Cal.4th 130, 179.) Thus, a flight instruction is proper if evidence shows that the defendant departed the crime scene under circumstances that could lead to a reasonable inference that the flight was motivated by a consciousness of guilt. (People v. Avila (2009) 46 Cal.4th 680, 710; see also People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
All statutory references are to the Penal Code, unless otherwise indicated.
In People v. Mason (1991) 52 Cal.3d 909, 943, the California Supreme Court summarily rejected the argument that a flight instruction is improper when the identity of the perpetrator is at issue. The court held that “[i]f there is evidence identifying the person who fled as the defendant, and if such evidence ‘is relied upon as tending to show guilt, ’ then it is proper to instruct on flight.” (Ibid.) Appellant argues the instruction did not assist the jury because there was no physical evidence connecting him to the murder, and because he denied guilt. But the instruction does not pertain to whether the perpetrator fled the scene of the crime, but rather, permits an inference of guilt if the jury finds the defendant fled the scene of the crime. When the identity of the fleer is at issue, the instruction only requires the jury to “‘proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issue bearing on guilt.’” (Ibid., quoting People v. London (1988) 206 Cal.App.3d 896, 903.)
Here, there was evidence that appellant fled the scene of the shooting and that the circumstances of the flight suggested a consciousness of guilt. Sandoval witnessed Ellison walk through the alleyway between 70th and 71st Street. After hearing gunshots, Sandoval saw appellant run out of the alleyway. Appellant asserts that this testimony is not credible due to suggestive identification procedures used by the police officers. But that argument goes to the weight of Sandoval’s testimony. It does not preclude the court from instructing the jury it was permitted to infer consciousness of guilt if it decided appellant fled the scene.
Appellant’s trial counsel argued that the five other pictures in the six-pack were of noticeably older men and that appellant’s picture was from two years prior, further accentuating the age difference.
IV
Finally, appellant argues section 654 prohibited the trial court from imposing concurrent sentences for murder and attempted robbery.
Section 654, subdivision (a) states, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 applies to a single act or indivisible transaction. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.) Whether a transaction is indivisible depends on the defendant’s intent and objective. (Ibid.) If the multiple offenses were merely incidental to, or were the means of accomplishing, a single objective, the defendant may be found to have harbored a single intent and may only be punished once. (People v. Harrison (1989) 48 Cal.3d 321, 335; see also People v. Boyd (1990) 222 Cal.App.3d 541, 575-576 [robbery sentence stayed under section 654 where robbery was the underlying offense for first degree felony murder conviction].)
However, if it is shown that the defendant harbored multiple criminal objectives that were independent of each other, he or she may be punished for each statutory violation “‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison, supra, 48 Cal.3d at p. 335.) The multiple objectives may be formed simultaneously or consecutively. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1657.) Accordingly, the fact that one crime is completed before the other is commenced does not itself make the criminal acts divisible. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 817.) The defendant’s intent is a factual question determined by the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Thus, multiple punishments are permitted if there is evidence to support a finding that the defendant formed separate intents or objectives for each offense. (Ibid.)
Appellant argues that all of his actions were taken pursuant to a single intent and objective, to rob Ellison. Respondent asserts that appellant shot Ellison after he refused to hand over the drugs and money. In People v. Sandoval (1994) 30 Cal.App.4th 1288, the defendant held up a convenience store, then shot the store clerk after he refused to hand over the money. Defendant left the store without taking any money, and the store clerk survived. (Id. at pp. 1295-1296.) Defendant was convicted and sentenced for attempted robbery and attempted murder. The appellate court affirmed the multiple punishments. (Id. at p. 1299.) The court held that the attempted robbery was completed once the defendant demanded the money and the store clerk refused his demand, and thus, the purpose of the shooting was “to punish [the store clerk], or to assuage [defendant’s] own thwarted desires by seeking other and different gratification....” (Id. at pp. 1299-1300.)
Alternatively, appellant argues that the attempted robbery was committed during the commission of premeditated murder. On these facts, it is unreasonable to conclude that appellant attempted to rob Ellison for the ultimate objective of murdering him.
Unlike People v. Sandoval, the factual details of the shooting here are unclear. The prosecution advanced two theories for the first degree murder conviction; premeditated murder and felony-murder in connection with the attempted robbery. The jury did not disclose which factual theory it applied, and Brown, the lone witness to the shooting, did not see the circumstances leading up to the first fired shot. We are left with appellant’s conflicting statements to police. Detective Villa testified that appellant confessed to pulling a gun on Ellison in order to rob him of drugs and money. After failing to do so, he fired at Ellison. At that point, appellant gave no other details of the shooting. However, he later claimed that Ellison accidentally shot himself after the two struggled for the gun, and that the gun accidentally fired two more shots. The prosecution presented ample evidence to discredit this version. An autopsy concluded Ellison sustained gunshot wounds in the back of the head, the side shoulder, and the back. Detective Villa testified the wounds were inconsistent with an accident. In addition, after examining the shell casings, a firearms examiner concluded it was unlikely the gun malfunctioned. Finally, Brown testified that after seeing Ellison fall to the ground, she saw the shooter extend his arm downward at Ellison and heard two more shots.
The prosecution also presented expert gang testimony that supports an inference that the shooting was by appellant and was the result of a confrontation during the attempted robbery. Officer Reyes, who had 10 years of experience dealing with the 7-Trey Gangsters, testified that the gang had an agreement with the East Coast Crips, allowing them to sell narcotics in 7-Trey Gangsters territory. In return, the East Coast Crips gave them a portion of the profit and allowed them to do the same in East Coast territory. Reyes further testified that an East Coast Crip’s refusal to hand over the proceeds could result in violent retaliation. Thus, as in People v. Sandoval, supra, 30 Cal.App.4th at pages 1299-1300, there was a basis to conclude that the shooting occurred after the attempted robbery was completed and served an independent purpose.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.