Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD215231, Kerry Wells, Judge.
HALLER, Acting P. J.
Khary Watson appeals from a judgment convicting him of murder. He argues the judgment must be reversed because (1) the admission of his recorded conversations with an accomplice violated his constitutional rights; (2) hearsay testimony was improperly admitted under the prior consistent statement exception to the hearsay rule; and (3) an instruction given to the jury violated the constitutional proscription against ex post facto laws. We reject these contentions of reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 1994, Patricia Lopez was fatally shot during a street robbery. The murder remained unsolved until after 2006, when the police received an anonymous phone call which led them to information concerning the persons involved in the crimes. The authorities identified the suspects as two males (defendant and Tyrone Katrel Lynch) and a female (Komoa Greene). Lynch eventually identified defendant as the shooter, entered into a plea agreement, and agreed to testify.
In addition to Lynch, several eyewitnesses to the shooting testified at trial, including Lopez's friend (Barbara Nickerson) and Nickerson's son (Paul). Nickerson was with Lopez at the time of the shooting. At about 10:00 p.m. on October 1, 1994, the two women were walking to Lopez's apartment when a man came out of the bushes, pointed a gun at Nickerson, and told Nickerson to remove her fanny pack. Nickerson unbuckled and dropped her fanny pack, and the man picked it up from the ground. Nickerson called out to Paul (who was at Lopez's apartment), and Paul came outside. Meanwhile, Lopez was running towards her apartment. The man ran after Lopez, grabbed her, and shot her. While this was occurring, another man was standing in the street waiting for the man with the gun. After Lopez was shot, the other man said, " 'Come on, man. We have to go.' " The two men ran off together. Lopez died at the scene.
After receiving the anonymous phone call and commencing their investigation, the authorities made contact with Lynch, who was living in Albuquerque, New Mexico. Beginning in February 2008, the police and Lynch had several phone conversations and in-person interviews to discuss the incident. In August 2008, Lynch was arrested for the murder. On August 7, 2008, Lynch was placed in a holding cell with defendant, and while in the cell for several hours Lynch tried to convince defendant to tell the truth about the shooting. Unbeknownst to Lynch and defendant, the conversations were recorded. At one point during the conversations, Lynch, lamenting that he was being charged with murder, asked defendant, "Why couldn't you just shoot her in the leg or something man." Defendant did not respond to this statement.
In May 2009, Lynch reached a plea agreement with the prosecution, pleading guilty to voluntary manslaughter, robbery, and attempted robbery.
Testifying on behalf of the prosecution at trial, Lynch stated that on the night of the shooting he and defendant (with Greene acting as the driver) committed two street robberies. They committed the first robbery in an alley. Greene then drove them to another location, where defendant and Lynch got out of the car and approached two women (Nickerson and Lopez). Defendant was carrying a gun owned by Greene. When Lynch saw defendant grab one of the women, he got nervous and started looking around. Lynch saw a woman on a balcony, and he kept his eye on her to make sure she did not run into the house to call the police. Lynch heard someone screaming, " 'Stop. Leave me alone. No, ' " and then heard a gunshot. Lynch looked back and saw defendant bent towards the ground. Lynch told defendant to "come on" and they ran back to the car. When they were back in the car, defendant stated that "he got the shell casing." Greene asked defendant, " 'Why did you shoot?, ' " and defendant responded, " Because the bitch bit me.' "
Dominic Holmes, a friend of defendant and Lynch, testified that defendant talked to him about the shooting. Holmes testified that defendant stated that he, Lynch, and Greene were "out taking purses" and that he shot "[s]ome bitch."
Jury Verdict and Sentence
The jury found defendant guilty of first degree murder with personal use of a firearm and with the special circumstance of murder during the commission or attempted commission of robbery. He was sentenced to life without the possibility of parole.
DISCUSSION
I. Admission of Recorded Conversations
Defendant argues his recorded conversations with Lynch (1) were erroneously admitted in violation of his constitutional rights because Lynch was acting as a police agent, and (2) should not have been submitted to the jury for consideration as adoptive admissions. To the extent his counsel did not preserve these issues for appellate review, he asserts he was provided ineffective assistance of counsel.
A. Background
On August 7, 2008, FBI Agent Allan Vitkosky installed a recording device in a holding cell at the police headquarters where defendant and Lynch were to be placed following their arrests. Defendant and Lynch were in the cell together for about four hours, and their recorded conversations were played for the jury. Lynch and defendant did not know about the recording device in the cell, and the authorities did not instruct Lynch to attempt to obtain information from defendant about the shooting.
At one point while defendant was temporarily out of the cell, Lynch told Sergeant Anthony Johnson that he was frustrated because he was trying to get defendant to confess and he did not want to "go down" for the crime. At another point while defendant was removed from the cell, Lynch implored Agent Vitkosky to help him so he would not be charged with murder, and told Vitkosky he was willing to do "[a]nything" to prevent this.
This conversation occurred when Sergeant Johnson came to the cell and asked Lynch if everything was going "alright." Lynch responded "It's alright, " but then continued, "I'm irritated though. I want this dude to confess. He's gonna piss me the fuck off, I'm serious!" Johnson asked, "Was he talking?" Lynch answered, "Yeah he was a little bit but I'm tryin' to get him to confess, 'cause I don't want to go down with this shit. He needs to confess." Johnson told Lynch, "I'll be back."
This conversation occurred when Agent Vitkosky came to the cell, offered Lynch some food, and told him to "[h]ang in there." Lynch asked Vitkosky how he ended up with a murder charge, and Vitkosky told him everybody was being charged as an accomplice. Lynch asked if he would face the same prison time as defendant, and Vitkosky answered yes, but he could not keep talking to him because Lynch wanted a lawyer. Lynch implored Vitkosky not to let this happen to him, and Vitkosky told Lynch he should talk to his lawyer. Lynch again begged Vitkosky to try to help him, and stated that he was willing to do anything. Vitkosky said "[o]kay" and told Lynch to "hang tight in there...."
While in the cell with defendant, Lynch engaged in repeated and lengthy lamentations, telling defendant that the shooter should do the right thing and confess, and that it was not right that he (Lynch) should be in this situation for a crime that he did not commit. In response, defendant made various comments, including that the police had read him the statements that Lynch and Greene had made to the police; it was wrong of Greene to incriminate them; and they were being charged as accessories to murder no matter who did it. At one point when Lynch said that he did not think everyone had to "go down for this, " defendant responded that it was too late because the police had already read the statement to him and told him everything. Lynch disagreed, stating it was not too late and that "[s]omebody needs to just tell the fuckin' truth and confess to that shit, for real."
For example, Lynch stated: "If I did this shit man I would've fuckin' confessed.... I would've did the time for the shit. Niggas' is brought up on some shit that motherfuckers ain't got nothin' to do with.... [¶]... [¶]... Motherfucker willing to do what they gotta do, you gotta be willing to accept your shit, dog.... You don't just put you whole family in jeopardy like that.... I don't think everybody need to go down for this shit, for reals.... [¶]... [¶]... I'm not tryin' to come way back out here and be in the pen for the rest of my motherfuckin' life for some shit I didn't do, nigga.... This shit is pissing me off. I'm ready to fuckin' go wild, man. [¶]... [¶]... I didn't anticipate in no fuckin' murder, nigga. That's what I didn't do. Nigga goin' down regardless, dog. A motherfucker needs to just keep it real. Nigga might as well keep it real, dog. Set everybody else straight, man.... It ain't cool to watch all your loved ones go somewhere for shit like that, dog... when they ain't the ones that did that shit.... [¶].... I went on a fuckin' purse snatch, not no motherfuckin' homicide, nigga. Bitch bring my name up. Every motherfucker's talking about, I did this, I did that. I ain't did shit."
During his discourse with defendant, Lynch at times referenced facts of the crime. For example, Lynch stated the gun was in Greene's name, Greene gave the gun to defendant, Greene was the driver, and Greene was "tryin' to get herself out of this shit...." In his responses, defendant also referred to the facts of the crime, agreeing the gun was in Greene's name, and stating she was older than them and was the "mastermind." Defendant told Lynch that he thought the case would result in a hung jury, because he never saw the gun and he did not "know [Greene] like that" and had never been on "missions" with her.
Towards the end of their time in the cell at the police headquarters, defendant stated to Lynch, "[t]hat whole shit was supposed to been buried" and again complained about Greene incriminating them. Lynch repeated his complaints, stating, "This is some fucked up shit man. My fuckin' life gone for some faggot shit man! Why couldn't you just shoot her in the leg or something man. Fuck." Defendant did not respond to this latter comment.
Defendant and Lynch were transported together in a patrol car from the police headquarters holding cell to the jail. The police surreptitiously installed a recording device in the patrol car, and their recorded conversations in the car were also played for the jury. When they were first taken out to the car, Lynch asked to be placed in a different car, but was told none was available. While in the car, Lynch continued his laments, stating that he did not want to talk about it; all he knew was that he was "in here for some shit" he did not do; and in a situation like this "motherfucker should have told the truth." Defendant responded that he told them his "side of the story." Lynch reiterated, "Motherfuckers should a told the truth man, I'm sitting up here going down for some bullshit. Motherfuckers knew what the fuck they did, you know what I'm saying on the real... I ain't trying to be taking nobody else's dirt."
Defendant commented to Lynch that the police put them "in this motherfucker to see if we gonna talk." Lynch repeated his complaint that "something's gotta give"; he did not want to "do time" for "nobody else's dirt"; and that he "didn't do shit." Defendant answered, "That's not what [Greene] is saying." Lynch said, "Don't... play with me dude, for real." Defendant told Lynch that he knew they had to "figure out something." Lynch continued his comments in the same vein as before, saying he did not want to "do life" for someone else; "Fuckers do some shit want to take everybody down with him and shit"; "Motherfuckers need to man up and take they own shit dawg"; and "I'm not fittin' to go down for life man, I'm telling you." Defendant made no responses to these comments.
B. Analysis
1. Constitutional Issues Based on Claim that Police Used Lynch as an Agent
Watson does not dispute that the police could properly place a recording device in the cell and patrol vehicle. (See Kuhlmann v. Wilson (1986) 477 U.S. 436, 459 [no violation of right to counsel when government merely engages in listening]; People v. Champion (1995) 9 Cal.4th 879, 909-911 [no violation of right to counsel when government intentionally transported defendants together and recorded their conversations].) However, he contends his constitutional rights were violated because Lynch was acting as an agent of the police when questioning defendant. He asserts the police had an understanding with Lynch that Lynch would try to elicit incriminating statements from him, and his conversations with Lynch were obtained in violation of his Sixth Amendment right to counsel and Fifth Amendment right to remain silent.
Disapproved on another point in People v. Combs (2004) 34 Cal.4th 821, 860.
Defendant focuses his appellate challenge on the conversations in the holding cell, not the conversations in the patrol vehicle. In any event, our analysis concerning the cell conversations applies equally to the patrol vehicle conversations.
The Attorney General argues that this issue has been forfeited because defense counsel did not object to admission of the recorded conversations. The record shows that defense counsel did not object to admission of the recorded conversations per se, but did argue that the jury should not be instructed on adoptive admissions based on defendant's failure to deny Lynch's accusations because defendant had a right to remain silent. The trial court rejected counsel's argument, stating that Lynch was not an agent of the authorities because there was no evidence that the authorities told Lynch to accuse defendant so they could obtain his statements in response.
To preserve a challenge to the admissibility of evidence for appellate review, the defendant must make an objection " 'in such a way as to alert the trial court to... the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.' " (People v. Partida (2005) 37 Cal.4th 428, 435.) Defendant argues that his counsel preserved constitutional challenges to the admission of the recorded conversations because the claim that he had the right to remain silent encompassed a claim that Lynch was a police agent.
Assuming arguendo that constitutional challenges based on Lynch's agency status have been adequately preserved for appellate review, we conclude the contentions fail on their merits.
a. Sixth Amendment Claim
Under the rule set forth in Massiah v. United States (1964) 377 U.S. 201, "once a judicial proceeding has been initiated against an accused and the Sixth Amendment right to counsel has attached, any statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against the defendant." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 66-67.) To prevail on a Massiah claim involving use of a government informant, the defendant must show that both the government and the informant took some action, beyond mere listening, that was designed deliberately to elicit incriminating remarks. (Id. at p. 67.) To show the informant's status as a government agent, the evidence must establish that the informant was acting " 'under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage.' " (Ibid.) The preexisting arrangement need not be explicit or formal, but may be inferred from evidence of the parties' behavior indicative of such an agreement. (Ibid.)
However, agency does not exist when "law enforcement officials 'merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement or guidance.' " (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 67.) The "accused's rights are not infringed by the government's mere acceptance of information gathered by an inmate on his own initiative, even if the authorities have a general policy of encouraging inmates to listen and report." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1240.) When the " 'police simply [make] use of [the informant's] own motivation to inform on defendant, [the] technique [is not] a knowing subversion of the defendant's right to counsel....' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1249.)
On appeal, we defer to the trial court's factual findings on the issue of agency if reasonably supported by the record. (People v. Fairbank, supra, 16 Cal.4th at pp. 1247-1249; see also Kuhlmann v. Wilson, supra, 477 U.S. at p. 460; People v. Tate (2010) 49 Cal.4th 635, 686.)
The record supports the trial court's conclusion that there was no agreement between Lynch and the authorities that Lynch would try to elicit incriminating information from defendant. According to prosecution witnesses (including Agent Vitkosky and Lynch), Lynch did not know that recording devices had been installed in the holding cell and patrol vehicle; there was no "live feed" allowing the authorities to monitor the conversations in the cell as they were occurring; and the authorities had not told Lynch to try to elicit information from defendant. The trial court was entitled to credit this testimony. The court could reasonably infer that Lynch, unaware of the wires, was not trying to elicit recorded incriminating statements pursuant to an agreement with law enforcement, but rather, on his own initiative, was trying to convince defendant to confess to the authorities so they would view Lynch as having a lesser level of culpability and treat him more leniently. Consistent with this, in Lynch's lengthy diatribes to defendant, he did not adopt a tactic of making repeated express accusations to give defendant a clear opportunity to incriminate himself by admission or failure to deny. Instead, the focus of Lynch's statements to defendant consisted of appeals to his sense of honor and sympathy for Lynch; i.e., that defendant should "man up" and tell the truth and not make others suffer for what he had done. There was no suggestion that the police were guiding Lynch as to what he should say to defendant; to the contrary, the fact that there was no "live feed" supports that Lynch was speaking to defendant on his own without input from the authorities.
Further, the court's finding of no agency is supported by the fact that while Lynch was in the holding cell he told the authorities about his frustrated attempts to get defendant to confess and begged the authorities to help him avoid a murder charge. The court could reasonably deduce that if Lynch had an agreement with the authorities, he would not be imploring them for help in avoiding the murder charge. This inference is further buttressed by the fact that Lynch did not reach a plea agreement with the prosecution until May 2009, which was nine months after the August 2008 recorded conversations.
Defendant also argues there was an implied agreement because Lynch was cooperating with the police, and the police intentionally placed Lynch with defendant in the same specially-wired holding cell and patrol car. These factors could support a finding of agency; however, an agency conclusion is not compelled as a matter of law. Although the placement of the two defendants together and the installation of the recording devices suggests the authorities hoped to acquire incriminating information, this action, standing alone, did not necessitate a finding that they had an agreement or understanding with Lynch that he would try to elicit incriminatory information. Given the absence of any evidence that the authorities told Lynch to interact with defendant in any particular manner, or even to interact with him at all, the trial court was not required to conclude that the authorities had an understanding with Lynch that he would try to elicit incriminating statements. (People v. Fairbank, supra, 16 Cal.4th at pp. 1246-1249 [no violation of right to counsel when informant-inmate provided police information and requested lenient treatment; although authorities hoped informant would obtain more information and took steps to keep him at same jail, police did not instruct him to elicit more information and made no promises or suggestions of lenient treatment; see also People v. Tate, supra, 49 Cal.4th at p. 686 [record supports finding of no agency based on showing that although informant told police she would speak to defendant, police did not order informant to act on their behalf and did not provide guidelines for the conversation].)
Defendant argues that after Lynch expressed his frustration to Sergeant Johnson about not getting a confession, Johnson "encouraged him to keep trying." The record shows that after Lynch stated that he was irritated and he wanted defendant to confess, Johnson asked Lynch if defendant was talking, and when Lynch stated he was talking a "little bit, " Johnson merely stated he would be back. (See fn. 1, ante.) When Lynch had this conversation with Johnson, Lynch had already been trying to get defendant to confess. The trial court could reasonably conclude that the conversation reflected that Johnson was learning about Lynch's efforts for the first time, and that, although Johnson may have wanted Lynch to continue in these efforts, this was activity being conducted by Lynch on his own without official involvement. The trial court was not required to construe the conversation between Lynch and Johnson as establishing an implied agreement that Lynch would try to get a confession.
Because the record supports the court's finding that Lynch was not a police agent, the admission of defendant's recorded conversations with Lynch did not violate his right to counsel.
b. Fifth Amendment Claim
Defendant also argues that the recorded conversations were admitted in violation of his Fifth Amendment rights because he was not advised of, and did not knowingly waive, his right to remain silent under Miranda. The contention fails based on the trial court's finding that Lynch was not a police agent, and because the requirement of Miranda warnings attaches only to an interrogation that a suspect knows is being conducted by the police. (Illinois v. Perkins (1990) 496 U.S. 292, 297, 300 [no Miranda warnings required when undercover agent posing as inmate questioned defendant; "Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner"]; People v. Tate, supra, 49 Cal.4th at pp. 685-686; People v. Williams (1988) 44 Cal.3d 1127, 1141-1142.) As explained in Williams, when a person talks to a fellow inmate, friend, or colleague, the coercive atmosphere of custodial police interrogation is absent, and the person cannot make an involuntary statement when the person is not aware that he is in the presence of a police interrogator. (People v. Williams, supra, 44 Cal.3d at p. 1142; accord Illinois v. Perkins, supra, 496 U.S. at pp. 296-297.)
Miranda v. Arizona (1966) 384 U.S. 436.
In his reply brief, defendant additionally argues the questioning by Lynch was "as coercive as any police interrogation" and therefore violated the Fifth Amendment. The claim fails based on the finding that Lynch was not a police agent; in any event, the recorded conversations do not reflect that Lynch was acting in a coercive manner.
2. Adoptive Admissions
The jury may consider whether a person has made an adoptive admission if the person is directly or indirectly accused of having committed a crime, and the person fails to deny the accusation or responds evasively or equivocally, under circumstances where an innocent person would be expected to respond with a prompt denial. (People v. Riel (2000) 22 Cal.4th 1153, 1189; People v. Simmons (1946) 28 Cal.2d 699, 712; Evid. Code § 1221.) If there is evidence that supports a reasonable inference that an accusatory statement was made under circumstances affording an opportunity to deny the accusation, the trial court should submit the issue to the jury to decide whether the defendant's conduct actually constituted an adoptive admission. (People v. Riel, supra, at pp. 1189-1190.) We review the trial court's rulings on admissibility of evidence under the abuse of discretion standard. (People v. Dixon (2007) 153 Cal.App.4th 985, 997.)
The circumstances must also be such that there is no suggestion that the person was relying on the constitutional right to remain silent. (People v. Riel, supra, 22 Cal.4th at p. 1189.)
The trial court instructed the jury that if it found that Lynch made accusatory statements to defendant that defendant would have been expected to, but did not, deny, the jury could conclude that defendant admitted the truth of the statements. Defendant argues the issue of adoptive admissions should not have been submitted to the jury because he indicated to Lynch that he did not want to discuss the offenses, and thus the circumstances did not show that he would have been expected to deny any accusations.
The trial court instructed the jury with a modified version of CALCRIM No. 357, stating: "If you conclude that Tyrone Katrel Lynch made statements outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny them, you must decide whether each of the following is true: One, the statements were made to the defendant or made in his presence; two, the defendant heard and understood the statements; three, the defendant would, under all the circumstances, naturally have denied the statements if he thought they were not true; and four, the defendant could have denied them but did not. [¶] If you decide all these requirements have been met, you may conclude that the defendant admitted the statements were true. These are called adoptive admissions. [¶] If you decide that any of these requirements have not been met, you should not consider the statements or the defendant's responses for any purpose other than evaluating the credibility of Tyrone Katrel Lynch, or to give context to any statements made by the defendant."
The Attorney General asserts the issue has been forfeited on appeal due to defense counsel's failure to object on the grounds defendant now raises on appeal. Defense counsel objected to an instruction on adoptive admissions on the basis that defendant had a constitutional right to remain silent. However, defense counsel did not assert that defendant would not have been expected to deny any accusations because he told Lynch he did not want to talk. Accordingly, the claim now raised on appeal has not been preserved for appellate review. (People v. Partida, supra, 37 Cal.4th at p. 435.)
In any event, even if we reach the issue on its merits or on grounds of ineffective assistance of counsel, defendant's contention fails because the record does not show that defendant indicated to Lynch that he did not want to discuss the crime. To support his claim, defendant cites an early portion of the recorded conversations where he told Lynch that the police had read him Lynch's statement to the police; Lynch commented to him that he (Lynch) would confess if he had committed the crime; and defendant responded that "Mother fuckers know the rules of the game." Defendant argues that this exchange shows that "he was reminding Lynch that 'the rules of the game' were that people didn't talk about such things."
This exchange was as follows. Lynch: "If I did this shit man I would've fuckin' confessed.... I would a did the time for the shit. Niggas' is brought up on some shit that mother fuckers ain't got nothin' to do with. That shit should've never fuckin' happened man. This is faggot shit.... Now everybody here and a mother fucker's life is in jeopardy." Defendant: "Mother fuckers know the rules of the game, man. How long this shit been goin' on, they been fuckin' with you for a while? [Greene] sent them on you too?" Lynch: "I don't even fuck around man. Mother fuckers know that shit. This is bullshit. I don't know what the fuck to say man, for reals. I don't know what the fuck to think." Defendant: "They're thinkin' death penalties." (Italics added.)
Assuming this is a correct interpretation of what was said, defendant's statement could merely mean that he did not want to confess to the police, not that he did not want to talk to Lynch. During the remainder of the recorded conversations in the holding cell, defendant did not say anything suggesting he did not want to talk to Lynch about the offenses. To the contrary, defendant made ongoing comments concerning the offenses in response to Lynch's pleas that the shooter should confess. For example, defendant berated Greene for incriminating them, stated his understanding of the charges against them, and gave his opinion about how the case would be resolved by a jury. There is nothing in the record that compels a finding that defendant would not have been expected to deny Lynch's accusations if he were innocent.
Defendant also cites his statement to Lynch while in the patrol car, indicating that defendant thought the police put them together on purpose to see if they would talk, which suggested defendant knew they were being recorded. If defendant thought they were being recorded, he would have had a greater, not lesser, incentive to deny any implication that he was the shooter. The evidence was properly submitted to the jury for consideration as adoptive admissions.
Defendant further argues that the trial court erred because it admitted "his denials as adoptive admissions." The contention is unavailing. The instruction to the jury stated that it could consider accusations as adoptive admissions if the "defendant could have denied them but did not." (Fn. 8, ante.) To the extent defendant made any denials during the recorded conversations, the trial court did not allow the jury to consider them as adoptive admissions.
During the recorded conversations, defendant at one point stated he did not know anything about the two robberies that the police were saying they committed, and at another point stated he never saw Greene's gun.
II. Prior Consistent Statements
Defendant argues the trial court erred in admitting, over defense objection, hearsay statements made by two witnesses (Holmes and Agent Vitkosky) under the prior consistent statement exception to the hearsay rule.
Evidence Code section 791 (section 791) sets forth two prongs defining the prior consistent statement exception to the hearsay exclusionary rule. Section 791, subdivision (a) permits admission of a witness's prior statement that is consistent with his or her trial testimony, if the witness has been impeached at trial with a prior inconsistent statement and the prior consistent statement was made before the inconsistent statement. Section 791, subdivision (b), permits admission of a witness's prior consistent statement if there is an express or implied charge that the witness's trial testimony is recently fabricated or influenced by an improper motive, and the prior consistent statement was made before the witness developed the motive to fabricate or other improper motive. As we shall explain, the record shows no abuse of discretion in the admission of the challenged portions of Holmes's and Agent Vitkosky's testimony.
Section 791 states: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Holmes testified that in October 1994 Lynch told him that he, defendant, and Greene were out "snatchin' purses" and that defendant shot a "lady." The record shows that before Holmes testified, Lynch provided testimony on direct examination indicating that he witnessed various facts tying defendant to the shooting. Thereafter, on cross-examination, defense counsel sought to impeach Lynch's testimony by presenting his pretrial statements to the police in which he claimed that he did not witness these events. That is, on cross-examination Lynch acknowledged that when he spoke to the police during initial interviews in February 2008, he told them he did not see or hear Greene give defendant her gun; he did not hear the victim screaming or running; he did not witness the robbery or the shooting; he ran before he heard the gunshot; and there was no conversation after he and defendant got back in the car. Given the impeachment of Lynch with his February 2008 prior inconsistent statements disclaiming knowledge of facts that connected defendant to the shooting, the prosecutor was entitled to rehabilitate Lynch with his earlier October 1994 consistent statement to Holmes that defendant committed the shooting. Accordingly, the evidence was admissible under the prior consistent statement exception set forth in the first prong of section 791, applicable when a prior inconsistent statement used for impeachment was preceded by a prior consistent statement.
Defendant asserts the prior consistent exception cannot be applied to Lynch's statement to Holmes because Lynch, as defendant's accomplice, had a motive to lie when he spoke to Holmes after the commission of the offense. (See People v. Gentry (1969) 270 Cal.App.2d 462, 473 [accomplice normally has motive to lie from outset of offense].) The contention is unavailing with respect to the first prong of section 791, which permits use of a prior consistent statement that preceded a prior inconsistent statement without inquiry into motive to fabricate. (People v. Manson (1976) 61 Cal.App.3d 102, 144.)
Turning to the evidence of the second statement by Lynch challenged by defendant as inadmissible hearsay, Agent Vitkosky testified that in a March 2008 conversation with Lynch, Lynch told him that when defendant returned to Greene's car, defendant stated, " 'Don't worry. I picked up the shell casing.' " Vitkosky testified that this was the first time Lynch mentioned this statement by defendant. In response to defense counsel's objection to this testimony, the prosecutor stated he was eliciting the testimony because the timing of Lynch's statement had been questioned. The trial court admitted the testimony to "clarify the timing of when the statement was made."
The record shows that on cross-examination, defense counsel asked Lynch if the first time he disclosed defendant's shell casing statement to the police was during a phone conversation in May 2008, and Lynch responded that he could not recall. Because this cross-examination called into question when Lynch first told the authorities about the shell casing admission, the trial court reasonably admitted Agent Vitkosky's testimony to clarify this point. The date of Lynch's statement to the authorities was not an out-of-court hearsay statement, but rather was an in-court nonhearsay statement by Vitkosky concerning a matter within his personal knowledge. (See People v. Kraft (2000) 23 Cal.4th 978, 1052.) There was no abuse of discretion in the trial court's evidentiary ruling on this point.
Alternatively, to the extent the jury might have considered Agent Vitkosky's testimony for the truth of Lynch's statement that defendant made an admission in the car with respect to the shell casing, Vitkosky's testimony (as well as Holmes's testimony) was admissible under the second prong of section 791 because on cross-examination of Lynch, defense counsel inferred that Lynch had a motive to fabricate his trial testimony because he had reached a plea agreement with the prosecution. Based on this impeachment, the prosecutor could properly present Lynch's 1994 statements to Holmes and March 2008 statements to Vitkosky (made prior to the May 2009 plea agreement), which were consistent with his trial testimony that defendant committed the shooting. Although Lynch's accomplice status may have given him a motive to fabricate from the inception of the offense, impeachment of an accomplice with a plea agreement permits rehabilitation with a prior consistent statement made before the plea agreement, even if the accomplice is charged with having an additional motive to lie at the time of the prior consistent statement. (People v. Jones (2003) 30 Cal.4th 1084, 1106-1107; People v. Hillhouse (2002) 27 Cal.4th 469, 492 ["A prior consistent statement logically bolsters a witness's credibility whenever it predates any motive to lie, not just when it predates all possible motives."])
Defense counsel elicited testimony from Lynch that under the plea agreement a murder charge was dismissed, Lynch pleaded guilty to voluntary manslaughter, and Lynch was able to obtain a determinate, rather than life, sentence.
The trial court did not abuse its discretion in admitting Lynch's statements to Holmes and Agent Vitkosky.
III. Ex Post Facto Challenge
Defendant argues the trial court violated the constitutional proscription against ex post facto laws by using, over defense objection, the CALCRIM version, rather than a former CALJIC version, of the instruction telling the jury how to evaluate accomplice testimony. He argues that the CALCRIM instruction given by the trial court (CALCRIM No. 335) is less favorable to the defense than the CALJIC version existing at the time of the offense. He cites the fact that the CALJIC version in existence in 1994 instructed the jury to view the accomplice's testimony with distrust, and (with respect to corroboration) to assume the accomplice testimony has been removed from the case and then determine whether there was remaining evidence connecting the defendant to the crime. (See CALJIC Nos. 3.18, 3.15 (5th ed. 1988).) In contrast, the CALCRIM instruction tells the jury to view the accomplice's testimony that tends to incriminate the defendant with caution, and (with respect to corroboration) states the accomplice testimony must be supported by other evidence that is independent of the accomplice's testimony and that connects the defendant to the crime. (See CALCRIM No. 335; People v. Guiuan (1998) 18 Cal.4th 558, 569 [holding that the jury should be told to specially scrutinize accomplice testimony only to the extent it incriminates the defendant, and that the phrase "care and caution, " rather than "distrust, " better articulates the proper approach for evaluating accomplice testimony].)
In Guiuan, the defendant was contending that the former version of the CALJIC instruction was erroneous because it broadly told the jury to view the accomplice testimony with distrust, without advising the jury that this cautionary instruction did not apply to accomplice testimony that was favorable to the defendant. (People v. Guiuan, supra, 18 Cal.4th at pp. 560, 563.)
This ex post facto contention is misplaced. In People v. Brown (2004) 33 Cal.4th 382, 391-392, our high court held that because the standard jury instructions merely state (but do not create) the law, the instructions themselves do not come within the purview of the ex post facto prohibition. Defendant contends the CALCRIM instruction lowered the prosecution's burden of proof and "substantively changed the responsibility of the jury in assessing and testing the testimony of an accomplice." An instruction cannot effectuate this change; an instruction can only reflect changes in the law that have been made by the Legislature or the courts. (See People v. Brown, supra, at pp. 391-392.) Absent a change in the law governing accomplice testimony since the time of the offense, the mere alteration in language between the CALCRIM version and a former CALJIC version does not implicate ex post facto principles. (People v. Brown, supra, at pp. 391-392.)
Even if we construe defendant's argument as a contention that there has been a change in the legal standards governing accomplice testimony, there is no reversible error arising from the trial court's use of the CALCRIM version. Arguably, the change enunciated in Guiuan, resulting in the use of the term "caution" instead of "distrust, " was a change in the relevant legal standard. Guiuan disapproved a Supreme Court case (People v. Hamilton (1948) 33 Cal.2d 45), which had characterized the two terms as significantly different and which had concluded that an instruction using the "caution" standard did not substantially comply with a required instruction using the "distrust" standard. (See People v. Guiuan, supra, 18 Cal.4th at p. 569, fn. 4, disapproving People v. Hamilton, supra, at p. 51; see also People v. Guiuan, supra, at pp. 573-574 (conc. opn. of Kennard, J.) [based on Hamilton and other authority, term "distrust" should be used instead of term "caution"].)
The substitution of "caution" for "distrust" is the only arguable substantive change in the law reflected in the CALCRIM instruction. Defendant has not cited any authority suggesting a change in the law underlying CALCRIM No. 335's manner of describing the requirement that the corroboration be independent of the accomplice's testimony.
To the extent the substitution of the term "caution" for the term "distrust" erroneously instructed the jury on the controlling law at the time of the 1994 offense, the instructional error was harmless even under the harmless beyond a reasonable doubt standard for federal constitutional error. (See People v. Farley (1996) 45 Cal.App.4th 1697, 1710; People v. Edwards (1989) 212 Cal.App.3d 1091, 1093.) The jury was instructed to view the incriminating accomplice testimony with caution, and when evaluating credibility to consider whether a witness's testimony was influenced by a factor such as bias or prejudice and whether a witness had been promised leniency in exchange for his testimony. (See CALCRIM Nos. 335, 226.) The jury knew that Lynch had been charged with murder for the shooting and that he had reached a plea bargain dismissing the murder charge. We have no doubt the jury fully understood that Lynch had a motive to place the blame on defendant so that he would not be implicated as the shooter, and thus the jury had to carefully scrutinize Lynch's credibility. There is no reasonable possibility the jury's verdict was affected merely by the use of the term "caution" instead of "distrust."
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.