Opinion
A157486
08-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEON WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR229081)
A jury convicted Michael Leon Williams of first degree murder and found true an allegation he personally and intentionally discharged a firearm during the offense (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d)). The trial court sentenced Williams to 50 years to life in state prison.
Williams appeals. He contends the court failed to adequately investigate juror misconduct and, as a result, the presumption of prejudice was not rebutted. Williams also claims the court erred by denying his request to impeach a prosecution witness and by failing to instruct the jury on third party culpability.
We affirm the judgment of conviction but direct the trial court to amend the abstract of judgment to clarify the sentence imposed.
FACTUAL AND PROCEDURAL BACKGROUND
We provide an overview here, and additional detail in the discussion of Williams's specific claims. We deny Williams's request for judicial notice as unnecessary.
The prosecution charged Williams with murdering Michael Weil, and alleged Williams personally and intentionally discharged a firearm in the commission of the offense (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d)). The information also alleged Williams served one prior prison term (Pen. Code, § 667.5, subd. (b)). Williams's first trial ended in a mistrial after the jury failed to reach a verdict.
Trial
In 2013, Williams was dating several women. He had dreadlocks, often wore a red bandana, and usually carried a .22-caliber gun.
Williams's girlfriend and her sister, Deirdre B., lived on adjoining properties in Vallejo. Charles D. lived in Deirdre's garage and paid her rent. Weil sometimes parked his car in the garage and slept there. Weil did not pay rent. Deirdre did not give Williams permission to collect rent on her behalf.
One evening in early 2013, Williams knocked on the door of the garage. He told Charles he " 'wanted to talk to [him].' " Williams came into the garage. He said Charles " 'was going to pay him rent from then on,' " not Deirdre. As he spoke, Williams grew upset and pulled out "a sawed off shotgun" and brandished it. Charles was afraid of Williams. He "got him to leave" by agreeing to pay him rent. Later, he got into an argument with Weil. Eventually, Williams walked away, saying, " 'I am going to get that old man.' "
In March 2013, Williams was with Elizabeth L., one of the women he was dating. He, Elizabeth, and Kristopher C. smoked methamphetamine, then drove to Deirdre's house. Williams said he needed to collect rent money. Elizabeth waited in the car while Kristopher and Williams walked up to the garage. Elizabeth heard a "loud popping" sound, "like a gunshot." From her living room, Deirdre also heard the gunshot. She looked out the window and saw two men—one of whom was Williams—running from the garage. Williams's hair was in dreadlocks. He wore a tank top and a red bandana and held a "long barrel handgun."
Initially, Elizabeth lied to the police about what happened because she was afraid of Williams. Later, she told the police the truth.
Williams and Kristopher returned to the car at a "fast pace." Williams got into the driver's seat. Williams said, " 'I killed that mother fucker' " and warned Kristopher " 'he better not tell.' " Kristopher was scared, "shaking, trying to keep his composure." Elizabeth was scared, too. Williams "pulled out a bottle of Everclear" and described what happened. He went to the garage to collect rent money and "the guy"—Weil—told Williams "he didn't have any money for him." Williams saw the bottle of Everclear and said he was going to take it. Weil responded, " 'Over my dead body,' " so Williams "pulled out the gun" and shot him "in the forehead." Williams seemed to be "bragg[ing] about" it.
With Elizabeth and Kristopher still in the car, Williams drove to a trailer park to dispose of the gun. Then Williams drove to his mother's house and gave her a bloodstained pair of shoes. Eventually, he drove Elizabeth home. Later that day, Williams threatened to kill Elizabeth if she " 'ever told.' "
Police found Weil in the garage, dead. He had a gunshot wound in his forehead and a .32-caliber bullet inside his skull. That evening, a police officer saw Williams and asked to speak with him. Williams "took off running," discarding a .22-caliber handgun as he ran. The officer eventually apprehended Williams, who had a red bandana. An officer swabbed Williams's clothing for gunshot residue. Williams's pants contained one particle "characteristic" of gunshot residue and several particles "consistent" with gunshot residue. A criminalist determined Williams's pants were "in the vicinity" of a firearm discharge.
Police interviewed Marissa S., another woman Williams dated. On the day of the murder, Williams told Marissa to book a hotel room, and to "take care of the kids and . . . his mom." He said the next time Marissa would see him "would be . . . in prison or behind glass." Williams also said something to the effect of, " '[t]his was number six' " and he "didn't know what was wrong with him." Kristopher told Marissa about the murder. He said Williams went to the garage to get rent money, and that Williams shot an "old man" in the garage because the man "got smart" and suggested Williams would " 'have to shoot [him] for it.' " At trial, Kristopher claimed he was not at the garage on the day of the murder.
Williams offered expert testimony on gunshot residue analysis and the effect of methamphetamine addiction on memory.
Discharge of Juror No. 11
During deliberations, the court dismissed Juror No. 11 for performing outside research and bringing outside information into the jury room. The court conducted an inquiry of the remaining jurors to determine whether they heard Juror No. 11's comments; the court received the jurors' assurances that Juror No. 11's comments would not affect their deliberations or their decisions. The court denied defense counsel's mistrial motions, seated an alternate juror, and admonished the jury not to conduct outside research.
Verdict, New Trial Motion, and Sentence
The jury convicted Williams of first degree murder and found the firearm enhancement allegation true (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d)). The court found the prison prior allegation true (Pen. Code, § 667.5, subd. (b)). Williams moved for a new trial, arguing the court should not have excused Juror No. 11, and that the court's failure to declare a mistrial after discharging the juror was an error of law and a violation of the federal constitution. The court denied the motion.
The court struck the prison prior and sentenced Williams to 50 years to life in state prison, comprised of 25 years to life on the murder conviction, and 25 years to life on the firearm enhancement.
DISCUSSION
I.
The Court's Inquiry into Juror Misconduct Rebutted the
Presumption of Prejudice
Williams contends the court failed to conduct a sufficient inquiry into Juror No. 11's misconduct and, as a result, the presumption of prejudice associated with that misconduct was not rebutted.
A. Factual Background
During deliberations, the foreperson told the bailiff Juror No. 11 had done research on the Internet and "had possibly shared this information with the rest of the panel." With counsel present, the court asked the foreperson what happened. According to the foreperson, Juror No. 11 "said, 'One of my concerns is that when I looked this up, I read that this was a mistrial.' " The foreperson stopped the juror "within 30 seconds," and called the bailiff. The rest of the jurors were "shocked" Juror No. 11 had not followed the court's directions.
The court brought in Juror No. 11. She explained that during deliberations, another juror suggested there had been a mistrial, which prompted Juror No. 11 to look up the case on the Internet. Juror No. 11 read a news story that "there was a hung jury in December and . . . and [it was] a mistrial."
The court directed Juror No. 11 to leave the courtroom and asked counsel whether there was "a problem" with Juror No. 11 and "a problem with the entire panel." The court stated it was "struggling with the idea of keeping" Juror No. 11, noting, "I don't see how we keep someone who . . . doesn't follow our instructions." The prosecutor agreed. Defense counsel, however, said excusing Juror No. 11 would require a mistrial because the other jurors were "tainted by what she told them" about the "hung jury." The prosecutor suggested the court bring "in each juror one by one to tell them to disregard what [Juror No. 11]" said.
The court dismissed Juror No. 11 for not following the admonition regarding outside research. Having already questioned the foreperson, the court individually examined the remaining jurors. Some jurors—Juror Nos. 2, 3, 7, 10, and 12—heard Juror No. 11 say she had looked up the case, but they did not hear what she found.
Other jurors heard more detailed comments. For example, Juror No. 1 heard Juror No. 11 say that "she did look up a previous trial online and . . . found a mistrial." Juror No. 1 also heard Juror No. 11 say "something about [a] [.]22." Juror No. 5 heard Juror No. 11 say she had "researched the case" and found out about a "trial . . . in December." Juror No. 6 heard Juror No. 11 admit she had done "her own investigation about the case and [. . . had] found out that the prior case was a hung jury." Juror No. 8 heard Juror No. 11 say she had looked up the case "online" and learned the case had been "previously tried and that it was a mistrial." Finally, Juror No. 9 heard Juror No. 11 admit she had "looked up an article and saw that there . . . was a mistrial before or previous trial that was a hung jury" and "that they said the gun shot was a [.]22 not a [.]32." Juror No. 9 explained the gun comment would not influence deliberations because there "was a stipulation" that the gun "was a [.]32."
The court instructed the jurors to disregard Juror No. 11's comments and received the jurors' assurances the comments would not interfere with their ability to deliberate, to consider the evidence, or to be fair. When the court concluded its inquiry, defense counsel moved for a mistrial premised on Juror No. 11's comment about the caliber of the gun. The court denied the request. It determined only Juror No. 9 heard the caliber comment and had assured the court it would not affect deliberations. The court also noted it had "received assurances" from all jurors that the "fact would not sway them."
The court was mistaken on this point, as Juror No. 1 had also heard "something about [a] [.]22."
Later, during a lunch break, defense counsel spoke with Juror No. 11, who said " '[jurors] knew . . . this was already tried before' " and that they wanted to avoid " 'another hung jury.' " She texted defense counsel that night and they spoke. Counsel suggested Juror No. 11 said Williams had confessed. As related by counsel, Juror No. 11 said that "in the newspaper," Williams "purportedly said" to Elizabeth "he killed someone." Counsel renewed his mistrial motion and urged the court to "question these jurors again." The court denied the motion and declined counsel's request for a further inquiry. After the verdict, defense counsel moved for a new trial based on the discharge of Juror No. 11. The court denied the motion.
B. The Inquiry Was Adequate and the Presumption of Prejudice Rebutted
The parties agree Juror No. 11 committed misconduct by obtaining outside information and sharing it with other jurors. (People v. Tafoya (2007) 42 Cal.4th 147, 192.) Williams's claim with respect to Juror No. 11 is the court's inquiry into the misconduct was "too general" to rebut the presumption of prejudice. According to Williams, "the court accepted as accurate the claim" that Juror No. 11 referred to his purported "confession" and "failed to make the inquiry needed to determine if those comments had in fact been heard by any of the other jurors."
When a trial court is " 'put "on notice" ' " a juror may have engaged in misconduct, the court has a duty " ' " 'to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and whether the impartiality of the other jurors has been affected.' " ' " (People v. Fuiava (2012) 53 Cal.4th 622, 702.) A trial court has broad discretion as to the mode of investigation of allegations of juror misconduct but it " 'must hold a hearing when it learns of allegations which, if true, would constitute good cause for a juror's discharge.' " (People v. Fayed (2020) 9 Cal.5th 147, 174 (Fayed).) If the inquiry uncovers juror misconduct, " 'prejudice is presumed; the state must then rebut the presumption or lose the verdict.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1178.)
"[W]hether an individual verdict must be overturned for jury misconduct or irregularity ' " 'is resolved by reference to the substantial likelihood test, an objective standard.' " ' [Citations.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant." (In re Hamilton (1999) 20 Cal.4th 273, 296.) The court's inquiry of other jurors regarding the effect of juror misconduct—and the jurors' answers that there was no effect—can rebut the presumption of prejudice. (People v. Foster (2010) 50 Cal.4th 1301, 1342-1343.)
Williams has failed to establish the court's inquiry was inadequate. The court queried the jurors to discover what they heard. It admonished each juror who had heard Juror No. 11's comments to disregard that information. The court also received the jurors' assurance the extraneous information would not affect deliberations. Finally, the court instructed the entire jury to not conduct outside research. The "trial court's questioning was thorough and careful, focusing on the nature and scope of the reported misconduct." (Fayed, supra, 9 Cal.5th at p. 174 [court's inquiry was not inadequate or " 'incomplete' "]; People v. Harrison (2013) 213 Cal.App.4th 1373, 1384 [scope of trial court's inquiry into juror misconduct was proper].)
The court's failure to conduct a further inquiry to rule out the possibility that Juror No. 11 stated that Williams had confessed does not render the court's inquiry inadequate. " 'The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.' " (People v. Manibusan (2013) 58 Cal.4th 40, 52-53 [failure to conduct second inquiry into juror misconduct was not an abuse of discretion].) Moreover, a defendant is not " 'entitled to an evidentiary hearing as a matter of right. Such a hearing should be held only when the court concludes [one] is "necessary to resolve material, disputed issues of fact." [Citation.] "The hearing should not be used as a 'fishing expedition' to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred." ' " (People v. Peoples (2016) 62 Cal.4th 718, 777.)
Also unpersuasive is Williams's claim that the presumption of prejudice from Juror No. 11's comments was not rebutted. As discussed above, the court's inquiry—and the jurors' responses to the court's questions—demonstrated there was "no substantial likelihood that one or more jurors were actually biased against the defendant." (In re Hamilton, supra, 20 Cal.4th at p. 296.) Williams's focus on the possibility that Juror No. 11 may have mentioned a confession does not alter our conclusion. No juror heard Juror No. 11 mention a prior confession. Nor has Williams established Juror No. 11's comment about the caliber of the gun prejudiced him. Only two jurors—Juror Nos. 1 and 9—heard Juror No. 11's comment about the caliber of the gun, and both jurors assured the court the comment would not affect their decision. Moreover, Juror No. 9 noted the irrelevance of the information in light of the stipulation the gun was a .32 caliber.
Williams's reliance on People v. Hem (2019) 31 Cal.App.5th 218 (Hem) is misplaced. In that case, defense counsel alerted the judge that several jurors had been discussing the case outside the deliberation room and pressed the judge to determine the scope of the misconduct. (Id. at pp. 221-222, 228.) Rather than conducting an inquiry, however, the court admonished the jury to deliberate as a group. (Id. at p. 223.) Hem reversed, holding the trial court failed to conduct any "inquiry at all," and as a result, the presumption of prejudice from the undisputed misconduct was unrebutted. (Id. at pp. 226, 229.)
Hem is distinguishable. Here, the court did what the trial court in Hem did not: it queried every juror to determine what each juror had heard, admonished the jurors who had heard Juror No. 11's comments to disregard the information, and ascertained that the jurors could remain fair and impartial toward Williams. Unlike Hem, the court's inquiry rebutted the presumption of prejudice from Juror No. 11's misconduct. (Fayed, supra, 9 Cal.5th at p. 175 [prejudice rebutted where trial court excused jurors and questioned the remaining jurors, all of whom "replied they were able to fulfill their duties as jurors and agreed not to form or express any opinion about the case until the matter was submitted"].)
II.
No Error in Excluding Purported Impeachment Evidence;
Any Assumed Error Was Harmless
Williams complains the court precluded defense counsel from impeaching Elizabeth.
A. Background
In 2004, Elizabeth testified for the prosecution under an immunity agreement in a sexual assault case, People v. Delancy (Super. Ct. Solano County, 2004, No. VCR173633) (Delancy). The agreement provided that in exchange for Elizabeth's truthful testimony, the district attorney would not prosecute her for: (1) "any perjury resulting" from her preliminary hearing testimony "regarding whether . . . she was working as a prostitute" in April 2004; and (2) "prostitution based on her activities" in April 2004.
At Williams's first trial, the court held an Evidence Code section 402 hearing (402 hearing) where Elizabeth denied having engaged in prostitution. At Williams's second trial, defense counsel moved to admit the immunity agreement as impeachment evidence that Elizabeth engaged in prostitution, and as evidence that she perjured herself in Delancy and at the 402 hearing at Williams's first trial. The court noted that at the first trial, it had ruled the "prostitution thing" was "old." It also suggested the immunity agreement was not "affirmative proof" Elizabeth perjured herself. In addition, the court suggested the evidence was more prejudicial than probative under section 352.
Undesignated statutory references are to the Evidence Code.
Defense counsel insisted Elizabeth perjured herself at the Delancy preliminary hearing and at the 402 hearing at Williams's first trial, and that the perjury was admissible as a crime of moral turpitude. In response, the prosecutor informed the court that Elizabeth had a 2005 conviction for prostitution; the prosecutor suggested defense counsel was less concerned with Elizabeth's alleged perjury than with besmirching her character. The court scheduled a 402 hearing.
B. 402 Hearing
The court held a 402 hearing in March 2019. There, Elizabeth recalled testifying at the Delancy preliminary hearing in April 2004, where she denied having engaged in prostitution. Elizabeth could not remember receiving immunity for engaging in prostitution or committing perjury at the Delancy preliminary hearing. Nor did Elizabeth recall signing an immunity agreement. She did not recognize the signature on the immunity agreement and explained she did not sign a letter in her last name "like that."
Elizabeth denied engaging in prostitution in 2004 and denied being arrested for, or convicted of, prostitution. When pressed by the prosecutor, however, she acknowledged being arrested for prostitution. She "got into [a] car with a police officer" and was immediately arrested; she denied trading sex for money. When cross-examined, Elizabeth acknowledged working as a prostitute "once" but denied lying at the Delancy preliminary hearing and said there was no evidence she worked as a prostitute in 2004.
Defense counsel argued Elizabeth lied at the Delancy preliminary hearing and lied about receiving immunity and working as a prostitute. The court responded that the prostitution—and the alleged perjury—were more than 10 years old, and that defense counsel had not offered "proof of perjury," such as a preliminary hearing transcript showing Elizabeth lied. It characterized the probative value of the evidence as "nominal compared to the delay, to the chaos, to the tangential issues" it would generate. As the court explained, the "fact that [Elizabeth] was a prostitute" was irrelevant and prejudicial, and the "deeper dive about whether . . . she lied" was a tangential distraction.
C. No Error in Excluding Purported Impeachment Evidence; Any Assumed Error Was Harmless
Williams claims the court abused its discretion by not allowing him to impeach Elizabeth with evidence that she committed perjury at the 402 hearing at his second trial. According to Williams, Elizabeth perjured herself when she denied engaging in, and being convicted of, prostitution, and when she denied receiving immunity.
In the trial court, Williams argued Elizabeth perjured herself at the Delancy preliminary hearing and at his first trial. On appeal, Williams abandons this argument, instead contending Elizabeth committed perjury at the 402 hearing at his second trial. --------
"The trial court has broad discretion in determining the admissibility of evidence." (People v. Bedolla (2018) 28 Cal.App.5th 535, 555.) A trial court's exclusion of " 'evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (Ibid.) An erroneous evidentiary ruling is harmless if the "record demonstrates 'it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of error.' " (Ibid.)
Impeachment evidence based on conduct falling short of a felony conviction must satisfy two requirements to be admissible. First, it must involve "moral turpitude." (People v. Wheeler (1992) 4 Cal.4th 284, 296; People v. Edwards (2013) 57 Cal.4th 658, 722.) Second, it must pass muster under the balancing test of section 352, which grants the court the discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of prejudice, of confusing the issues, or of misleading the jury. (Wheeler, at pp. 296-297.)
The court's ruling was not an abuse of discretion. Perjury is a moral turpitude offense (People v. Chavez (2000) 84 Cal.App.4th 25, 28), but the court reasonably concluded Williams did not establish Elizabeth committed perjury at the 402 hearing. "The elements of perjury are: 'a "willful statement, under oath, of any material matter which the witness knows to be false." ' " (People v. Garcia (2006) 39 Cal.4th 1070, 1091.) As Williams seems to acknowledge, he did not show Elizabeth's statements regarding her prostitution history were knowingly false—that is, that Elizabeth had the specific intent to testify falsely. (People v. Viniegra (1982) 130 Cal.App.3d 577, 584-585 [perjury requires specific intent to testify falsely].) At the 402 hearing, Elizabeth initially denied having engaged in prostitution. But when presented with the date of her arrest, Elizabeth acknowledged it and admitted engaging in prostitution. Thus, the court could have reasonably concluded Elizabeth did not make a knowingly false statement under oath. (CALCRIM No. 2641 [actual belief the statement is true, even if mistaken, is a defense to perjury].)
The court also reasonably concluded Elizabeth did not make a knowingly false statement about the immunity agreement. At the 402 hearing, Elizabeth did not remember receiving immunity, did not recall signing an immunity agreement, and did not recognize the signature on the immunity agreement. Williams did not establish Elizabeth's failure to remember the immunity agreement, or to recognize the signature on that agreement, 14 years later, was a lie. Even if Williams proved Elizabeth committed perjury at the 402 hearing, the court was within its discretion to exclude the evidence pursuant to section 352. Proving up the conduct giving rise to the alleged perjury would consume an undue amount of time on a collateral issue, an issue with " 'obvious potential for embarrassing or unfairly discrediting [Elizabeth].' " (People v. Phillips (2000) 22 Cal.4th 226, 234 [no error in excluding evidence of witness's prostitution history]; People v. DeSantis (1992) 2 Cal.4th 1198, 1226 [trial court properly excluded perjury evidence pursuant to section 352].)
Assuming for the sake of argument the court erred by excluding the evidence, Williams was not prejudiced. The jury knew Elizabeth used methamphetamine and that methamphetamine use may affect memory. The jury also heard evidence Elizabeth lied during her initial interview with the police. During closing argument, defense counsel assailed Elizabeth's trustworthiness, highlighting her bias against Williams and the fact that she lied in her police interview. Therefore, it is not reasonably probable the jury would have had a significantly different impression of Elizabeth's credibility had it heard evidence she may have lied about engaging in prostitution and receiving immunity 14 years earlier. (People v. Alcala (1992) 4 Cal.4th 742, 789 [excluding impeachment evidence was not prejudicial; defense was not precluded from suggesting the witness was "suspect or unreliable"].)
Williams's undeveloped confrontation clause claim fails. " ' "[N]ot every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. . . . Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" ' [Citation.] Even assuming the trial court had exercised its discretion to allow impeachment of [Elizabeth] [. . .], no significantly different impression of h[er] credibility would have resulted here." (People v. Dalton (2019) 7 Cal.5th 166, 217.)
III.
The Instructional Error Claim Fails
Defense counsel requested the court instruct the jury on third party culpability. In response, the court suggested the evidence did not support such an instruction because Kristopher testified he "wasn't even there." The court, however, asked defense counsel to propose an instruction. Defense counsel did not offer one. The parties implicitly agreed the court would not instruct the jury on third party culpability, but the court assured the defense it could argue Kristopher "did it." Defense counsel responded, "I understand." In closing argument, defense counsel urged the jurors not to convict Williams if they believed Kristopher, or anyone else, pulled the trigger. Counsel suggested it was reasonable for jurors to conclude Kristopher was the shooter.
Williams contends the court erred by failing to instruct the jury on third party culpability. This claim fails for the obvious reason that he did not offer an instruction for the court to deliver: he never "proposed terms that would have been specific to [his] third party liability theory." (People v. Gonzales (2012) 54 Cal.4th 1234, 1277.) Even if we assume the court erred by failing to instruct the jury on third party culpability, the error was not prejudicial because the reasonable doubt instructions (CALCRIM Nos. 220 and 315) provided Williams with " 'ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing whether the prosecution has met its burden of proof.' " (Fayed, supra, 9 Cal.5th at p. 178.)
Defense counsel took advantage of this opportunity: in closing argument, he stressed that the jurors could not convict Williams if they believed someone else—Kristopher—was the shooter. Thus, if the jury believed Kristopher shot Weil and that Williams was "not involved, it had proper instructions upon which to acquit." (People v. Mackey (2015) 233 Cal.App.4th 32, 112 [no prejudicial error in refusing proposed instruction on third party culpability]; People v. Covarrubias (2016) 1 Cal.5th 838, 907-908 [omission of pinpoint instruction on third party culpability not prejudicial].)
DISPOSITION
The judgment of conviction is affirmed. The trial court is directed to prepare an amended abstract of judgment to clarify that the court sentenced Williams to a total of 50 years to life in state prison, comprised of 25 years to life on the murder conviction (count 1, Pen. Code, § 187, subd. (a)), and 25 years to life on the firearm enhancement (Pen. Code, § 12022.53, subd. (d)). The court must send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Simons, J. /s/_________
Needham, J.