Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County No. SCS191128, Esteban Hernandez, Judge.
HUFFMAN, Acting P. J.
Thomas T. Zingsheim, Robert J. Maxwell, and Michael J. Murphy, along with Tuesdae Ditmars and Evan Baltsas, were charged with various crimes stemming out of two residential burglaries. After Ditmars and Baltsas pled guilty, a bifurcated jury trial proceeded on a consolidated amended information as to Zingsheim, Maxwell and Murphy. The jury found the three defendants guilty of the following offenses committed at the residence of Ryan Guerrero on January 29, 2005: count 1, first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)); count 2, assault with a semiautomatic firearm, a handgun (§ 245, subd. (b)); count 3, assault with a semiautomatic firearm, a rifle (§ 245, subd. (b)); count 4, residential burglary (§§ 459, 460); count 5, false imprisonment by violence or menace (§§ 236, 237, subd. (a)); count 6, grand theft of personal property (§ 487, subd. (a)); count 7, intimidating a witness by malicious use of force or violence (§ 136.1, subd. (c)(1)); and counts 9, 10, 11 and 12, tampering with electric, telephone and cable television lines (§ 591). Maxwell alone was found guilty of count 8 for tampering with an electrical line connected to an alarm system.
All statutory references are to the Penal Code unless otherwise specified.
The jury further found true allegations that Murphy and Maxwell each had personally used a firearm in the commission of counts 1 through 6 (§ 12022.5, subd. (a)); that Maxwell and Murphy also had personally used a firearm within the meaning of section 12022.53, subdivision (b) in the commission of the count 1 robbery; that Murphy had personally used a firearm in the commission of the count 7 intimidation of a witness (§ 12022.5, subd. (a)); that Zingsheim and Maxwell were vicariously armed with a firearm for count 7 (§ 12022, subd. (a)(1)); that Zingsheim was further vicariously armed with a firearm for counts 1, 4, 5 and 6 (§ 12022, subd. (a)(1)); and that all three defendants committed the burglary while another person other than an accomplice was present in the residence.
The jury additionally found Zingsheim guilty of the December 2004 burglary of John and Dani Leombrone's residence (§§ 259, 260; count 13), and found true that he had taken, damaged and destroyed property in excess of $50,000 during that crime. (§ 12022.6, subd. (a)(1).)
At a bifurcated court proceeding, after Maxwell admitted he had previously suffered a serious felony conviction, which qualified as a strike under the Three Strikes law, the court found true allegations under section 667, subdivision (a)(1) and the three strikes law. (§§ 667, subds. (b)-(i); 1170.12) After granting Maxwell's motion to dismiss his strike for sentencing purposes, the court sentenced Maxwell to a total prison term of 21 years, which included imposition of the upper term for the count 1 residential robbery. The court then sentenced Zingsheim to a total prison term of 10 years, eight months and Murphy to a total of 16 years in prison. Each sentence also included the imposition of an upper term for count 1.
The record reflects that Maxwell's 1995 prior serious felony conviction for shooting at an inhabited dwelling house (§ 246) was reduced to a misdemeanor on May 27, 1999, under section 17, subdivision (b)(3). Because Maxwell's prior conviction was reduced to a misdemeanor for all purposes, the conviction cannot qualify as an enhancing prior serious felony conviction for purposes of section 667, subdivision (a) and therefore the imposition of the five-year enhancement under that section was improper and constituted an unauthorized sentence. (People v. Marshall (1991) 227 Cal.App.3d 502, 505.) Such an unauthorized sentence is subject to correction on review. (People v. Menius (1994) 25 Cal.App.4th 1290, 1295.) We thus strike the true finding and enhancement imposed for Maxwell's serious felony prior conviction under section 667, subdivision (a)(1). (§ 1260.)
With regard to the Leombrone burglary, the court ordered Zingsheim to pay, jointly and severally with Ditmars and Baltsas, victim restitution of $58,000. As for the Guerrero residence crimes, the court imposed a general order for victim restitution to be paid jointly and severally between Maxwell, Murphy, Zingsheim and Ditmars in an amount to be determined at a later date, setting the matter for hearing on September 29, 2006. At the Guerrero restitution hearing, the court ordered victim restitution in the stipulated amount of $6,103.33 in medical expenses to be paid jointly and severally by Murphy, Maxwell and Zingsheim. The court also issued a general order for additional victim restitution to Guerrero in the event the prosecutor was able to present reliable information in support of such restitution at a future hearing.
Each defendant has separately appealed and has joined in the arguments of each other to the extent such is applicable and beneficial. (Cal. Rules of Ct., rule 8.200(a)(5).) Essentially, the contentions before this court are (1) whether the trial court had a sua sponte duty to give a cautionary instruction regarding witnesses testifying pursuant to a plea agreement; (2) whether six claims of prosecutorial error were forfeited, had any merit, or constituted cumulative error; (3) whether the prosecutor prejudicially violated Maxwell's constitutional rights under Griffin v. California (1965) 380 U.S. 609 (Griffin) and Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) by cross-examining him about his not testifying at the preliminary hearing and about his refusal to give a postarrest statement; (4) whether the trial court abused its discretion or violated California Rules of Court regarding uniformity of sentencing when it imposed a lengthier prison term for Zingsheim than it imposed for Ditmars who pled guilty instead of going to trial; (5) whether the trial court violated each defendant's constitutional rights as expressed in Cunningham v. California (2007) 549 U.S. 270 [126 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) when it imposed the upper term sentence for the count 1 residential robbery; (6) whether the victim restitution award to Guerrero also violated the respective defendant's constitutional rights as expressed in Cunningham, Blakely and Apprendi; (7) whether the omission of Ditmars from the Guerrero victim restitution award entitles the defendants to relief; and (8) whether Murphy's abstract of judgment should be corrected to reflect the sentence that was orally imposed by the court, i.e., concurrent low term sentences for counts 2 and 3.
Although conceding that Murphy's abstract of judgment should be modified and that the Guerrero restitution order for medical bills inadvertently omitted Ditmars from the order, the People submit that no other contention has merit and that the restitution matter should be remanded to the trial court for purposes of holding another hearing to resolve any and all issues related to victim restitution that must be paid to Guerrero.
We shall affirm each of the defendant's convictions and reverse the sentences imposed, including the Guerrero victim restitution orders imposed, and remand the matter with directions for resentencing and a new restitution hearing for determining victim restitution to Guerrero consistent with the views expressed in this opinion.
FACTUAL BACKGROUND
Because the defendants do not challenge the sufficiency of the evidence and many of the facts pertinent to each issue on appeal are recited in the discussion, we summarize the facts presented at trial regarding the Guerrero and Leombrone crimes involved in this case.
Essentially, on January 29, 2005, after Guerrero was robbed and beaten by defendants in his summer home at the Coronado Cays in Coronado, he went to a neighbor's house and called 911, giving the dispatcher as much information about the home invasion and the assailants as Guerrero could recall. The responding Coronado police officer first contacted Guerrero at the neighbor's before going over to Guerrero's house, where an initial search for any suspects revealed a bullet hole in a window in the master bedroom, drawers pulled out and clothes strewn all over the house. The officer then obtained some additional information from Guerrero and relayed it over the police radio as well as calling for an ambulance because Guerrero was bleeding from his hand and back of his head.
Guerrero subsequently provided the officer more information, including some of the suspects' names, "Tuesdae Mars" (Ditmars) and "Mike" (Murphy), the fact that two males had guns, one a machine gun and the other a handgun (Murphy had the handgun), and that the suspects had been in the house, drinking beer, smoking cigarettes and eating pizza.
While Guerrero was transported to a hospital emergency room where he received six staples for a cut on the top of his head and then to the Coronado police station where he was interviewed, another Coronado police officer, who had learned that some suspects were in an older model gray Volvo sedan, conducted a "hot stop" of a Volvo fitting that description near Glorietta Bay and Tenth Street, ordering the male driver, identified as Zingsheim, and the passenger, identified as Ditmars, out of the car. The back seat of the Volvo was piled high with property, including plasma televisions, a framed poster, a fishing pole, liquor bottles and figurines. Zingsheim and Ditmars were arrested and transported to the Coronado police station.
There, Coronado Police Detective Joe Oliver, who was in charge of the investigation, interviewed Ditmars about the home invasion robbery at Guerrero's residence. Ditmars basically told Oliver that she had been "hanging out," drinking, and watching television at Guerrero's home as he worked on it because she was missing her boyfriend, Baltsas. The next morning she woke up in bed with Guerrero and they were both naked. Although she recalled doing something with her shirt and thought she had flashed Guerrero, she could not remember flirting or making out with him. She got up, dressed and called Baltsas to come pick her up.
Right before Baltsas arrived with Zingsheim, Ditmars smoked some methamphetamine (meth). After she told Baltsas what had happened, she saw Zingsheim enter Guerrero's house with socks on his hands. As she put her things in the Volvo, she heard the engine of Guerrero's Lincoln Navigator in the garage start up. She then saw Baltsas drive the Navigator out of the garage with Zingsheim, who got out of the Navigator and into the Volvo with her. As they drove away from Guerrero's, Zingsheim realized that he had left one of his bags there, so he turned around with Ditmars and returned to the house to retrieve the bag while Baltsas continued driving away in the Navigator without them. When they left Guerrero's house again, rather than try to contact Baltsas, Ditmars had Zingsheim drive to Maxwell's house in Imperial Beach because he had previously had a fight with Guerrero over some incident involving her old boyfriend Jesse Valdez through whom she had met Maxwell. When Ditmars told Zingsheim during the drive about waking up next to Guerrero, Zingsheim said something to the effect of, "this fool needs to get rolled up hard."
After arriving at Maxwell's place, Ditmars told him and Murphy who was there about what had happened. The gist of their conversation was that Guerrero was "fucking" with Ditmars, Maxwell was going to go back to Guerrero's house because he had not "beat his ass hard enough the first time," and the four agreed that they would go to the house to take Guerrero's property that Ditmars had talked about and that Guerrero would "get his ass beat." Ditmars rode with Maxwell, who had a long gun underneath his jacket, in his Toyota 4Runner, while Murphy rode with Zingsheim in the Volvo. Maxwell specifically asked Ditmars whether there was anything in particular that she wanted from Guerrero's home.
When Ditmars and the others arrived at the residence, Maxwell cut the wires outside the house and pulled out telephone lines inside before Ditmars went upstairs and woke up Guerrero as she grabbed his cellular phone next to him. Maxwell and Murphy were in the bedroom with guns pointed at Guerrero when Ditmars left the room because she did not want to be there when they beat up Guerrero. She joined Zingsheim downstairs as he was pillaging through things, and at some point she heard a gun shot and the sound of a window breaking. Murphy called her back upstairs to help find an empty shell casing, which she found and gave to him after Zingsheim, who had followed her, confirmed it was really a shell. At that time, Murphy was in the upstairs living room holding a gun as Guerrero sat nearby with blood on his hands. Murphy indicated to Ditmars that Guerrero had told him that she "came on to him" and that they "did it" two times before he went and got a pizza and once more after he returned.
Ditmars told Oliver that Zingsheim removed two televisions from the house, Maxwell was both upstairs and downstairs "looking through drawers and stuff," and that Maxwell had told her to unplug Guerrero's stereo so he could "grab it." Ditmars also told Oliver and a female detective that she did not feel she had been raped or assaulted by Guerrero, that she felt safe with him, and that she felt what had happened between her and Guerrero had been consensual.
During the course of her interview, Ditmars also informed Oliver where Baltsas was living in the downtown San Diego area, and told him that she had gone with Baltsas and Zingsheim one time to an apartment downtown where they had stolen various items, including a Van Gogh picture.
As part of the investigation, on January 30, 2005, Oliver placed Maxwell's house under surveillance. At some point that day, Maxwell's Toyota 4Runner was seen leaving the house and was found about five minutes later parked and unoccupied a short distance away. The next day, a San Diego police detective who was investigating the unsolved December 2004 burglary at the Leombrone residence, learned about the information Ditmars had given Oliver regarding the suspects in that burglary and went with other law enforcement officers to the hotel where Baltsas was staying. Guerrero's Navigator was found in a parking lot nearby and in executing a search warrant obtained for a storage unit that was rented by Baltsas, officers found property taken from the Leombrone residence. The detective interviewed Zingsheim on February 7, 2005, learning from him that Baltsas had borrowed the Volvo used in the Guerrero crimes from a friend, that Baltsas had taken a Honda Accord from the Leombrone residence before going there again with Ditmars and Zingsheim to take additional property, including a Van Gogh painting. Zingsheim told the detective he also visited the Leombrone residence with Baltsas another time and they took a television from the home. At some point, the detective also recovered additional property from the Leombrone burglary at the friend's house.
Meanwhile, on February 4, 2005, Maxwell was apprehended in El Cajon by the fugitive task force and turned over to the Coronado police. During the drive to the Coronado police station, Maxwell commented, "You don't know the half of it. That's what happens when you help a girlfriend help a boyfriend." Then, on April 4, 2005, Murphy was apprehended by the fugitive task force and brought to the Coronado police station where Oliver interviewed him.
During the interview, Murphy said he was with Maxwell when Ditmars arrived and told them that Guerrero had gotten her intoxicated and had raped her. Murphy had agreed to go to Guerrero's house, but only to scare him even though Ditmars wanted to take more property from his house. Murphy denied taking anything from Guerrero, but admitted he had kicked and punched Guerrero as well as hitting him with the butt of his gun that accidently fired, shooting a hole in the window. Murphy said he had Guerrero put on his pajama bottoms before taking him downstairs to the living room where he talked with him after putting away his gun, which was a nine millimeter Norinco that belonged to his grandfather. Murphy said he had tossed the gun in the ocean after the incident because he was scared. He said he knew he had "screwed up."
On June 14, 2005, Oliver and another detective went to the home of one of Murphy's neighbors after they received information that the gun used by Murphy might be found there. When the detectives informed the neighbor why they were there, he indicated he knew about the home invasion robbery at Guerrero's residence and that he had the gun. Murphy had dropped off the gun in a backpack and the neighbor had placed it in his garage for safekeeping.
As noted earlier, Ditmars and Baltsas pled guilty to various charges before the trial, at which the jury was presented with the above evidence. In addition, with regard to the Leombrone residential burglary, the jury heard testimony from John Leombrone about discovering his Honda Accord and many items of property, including a Van Gogh print and several televisions, missing from his home upon returning to San Diego from a trip to New York with his wife during the December 2004 holiday season. The jury also heard stipulations read about the property and its value taken from the Leombrones that was located later at various places.
With regard to the home invasion robbery at the Guerrero residence, the jury further heard testimony from, among other people, Guerrero, an acquaintance of Maxwell's, and Ditmars, who was declared a hostile witness. After noting that he visited his family's Coronado home about once a month from Arizona and helped his father with the family stucco and plastering company, Guerrero testified about his relationship with the various defendants. He had met Ditmars about three months before the January 29, 2005 incident through her former boyfriend Valdez who had worked for the family company. Guerrero had also met Murphy through Valdez a month before the incident and had met Maxwell once before that time when Valdez brought him to Guerrero's house. At that time, Guerrero and Maxwell had a fight in the garage after Maxwell punched him for purportedly upsetting Valdez by spending time with Ditmars, whom Guerrero said was just a friend. Guerrero had met Zingsheim at a party and then again at the home of a mutual friend before January 29, 2005.
Guerrero said he was in town the week before the incident with a construction crew from Arizona working on the Coronado house, repairing the roof and two exterior walls. Two days before the incident, Ditmars began staying at the house with him, sleeping in a downstairs bedroom. After the construction crew left San Diego on January 28, 2005, Guerrero continued to work on the house while Ditmars drank alcoholic beverages and wandered around. After completing work that day, Guerrero went inside and started talking to her and they ended up kissing. Ditmars then lifted up her shirt and gave Guerrero a flash, showing him her breasts. After flashing him again, they went to the master bedroom upstairs and had sex. Afterwards, Guerrero went out to get a pizza and some cigarettes for Ditmars. When he returned, he set up a plasma television in the master bedroom and turned on the fireplace. He and Ditmars had sex again before they fell asleep.
Guerrero testified that when he woke up on January 29, 2005, Murphy and Maxwell were standing there with guns; Maxwell with an assault rifle and Murphy with a handgun. When he jumped out of bed and confronted them, Maxwell rushed toward him while Murphy jumped on the bed and tried to kick him in the head. As he grabbed the barrel of Maxwell's rifle to push it away, Maxwell tried to hit him with the butt of the rifle. The two men continued to hit and kick him until Murphy hit him on the head with the handgun and a bullet discharged, hitting the window and shattering the glass. Murphy and Maxwell then backed away. When Guerrero asked them why they were there, they replied that Guerrero was going to learn his lesson for "doing more with a girl than she wants to do" and that he "just shouldn't do that to a female." Guerrero said he tried to reason with the men, telling them they were "a little old to be just taking some girl's word that she got raped." As Maxwell left the room commenting that "[s]he better not have been fucking lying to us," Ditmars entered the room and helped Murphy look for the bullet casing.
When Guerrero then told Ditmars, "This is because of you, you fucking bitch," Ditmars looked at him, saying, "All I know, I passed out, and when I woke up, I felt weird, and I was naked." Murphy then let Guerrero put on a pair of pajama bottoms and ordered him at gunpoint to walk downstairs to the living room/kitchen area where he directed him to sit on the couch. As Murphy sat at the bar in the same area watching Guerrero, Murphy ate some pizza and drank a few bottles of beer. During this time, Guerrero heard Murphy, Maxwell and Zingsheim talk about disabling the home alarm and telephone systems and saw Zingsheim, who was wearing long socks over his hands and arms, removing property and telephones from the house. He also saw Ditmars carrying items out of the house.
As Ditmars, Zingsheim, Murphy and Maxwell were leaving, Murphy warned Guerrero not to call the police, telling him something like, "If you call the cops, they may catch all of us, but they are not going to catch one, and the one they don't catch is going to kill your ass, so don't call the fucking cops." When they left the house, Guerrero ran downstairs, opened the door, and saw Murphy and Maxwell walking out to the street while Ditmars and Zingsheim got into a gray Volvo that was parked in the garage and drove off. Guerrero also noticed that his Navigator was missing from the garage. After the four were out of sight, Guerrero hit a button on the house alarm system, but it did not sound off. As soon as he saw Murphy and Maxwell get into what he believed was a Toyota Land Cruiser parked out on the cul-de-sac, he went to his neighbor's house to call the police.
Guerrero further testified about the numerous items taken from his house that were recovered in the Navigator and the Volvo, i.e., a camera, a toolbox, telephone jack components, drill sets, golf clubs, a gasoline can, an iron pipe, speakers, bottles of liquor, a battery for electric tools, a Lego set, flasks for liquor, shot glasses, electronics, a box for surround sound, jars of paint pellets for a paint ball gun, a fish finder/radar, DVD's, a fishing pole, remote controls for electronics, cordless telephones, Xbox video games, pillows, two plasma televisions, framed and autographed photographs of two sports figures (Oscar de la Hoya and Sugar Shane Mosely), a transducer for a fish finder/radar, and a drill. Guerrero also noted that two bicycles were missing from his garage and that he last saw his cellular phone clipped to Ditmars's skirt.
An acquaintance of Maxwell's testified in the prosecution case that when he stopped by Maxwell's house on the morning of January 29, 2005 to check on whether his radio control car that Maxwell was repairing for him was done, Maxwell told him the car was done, but asked if the car could be picked up later because he had to take care of some business, explaining that a woman had been raped and he was going to "kick his ass."
When Ditmars testified at trial, she apprised the jury that she was in custody and admitted that she had been convicted of two burglaries at the Guerrero and Leombrone residences respectively and that she had been "vicariously armed with a firearm" during the Guerrero robbery/burglary. Although she conceded she had gone to the Leombrones' apartment with Baltsas and Zingsheim, and that she and Baltsas were stealing items, she said she did not see Zingsheim taking things because she was only paying attention to what she was doing. She initially did not remember telling anyone that Zingsheim had taken property from that home, but later said that all of them took CD's, purses, clothes and household items from the Leombrone apartment before they left.
Ditmars's trial testimony concerning the events leading up to the Guerrero home invasion robbery was similar to her postarrest statements to Oliver. She had been staying at Guerrero's home several days before the incident, had been drinking whiskey and smoking meth with Guerrero the day before, and then woke up in bed with him and neither was wearing any clothes. After she got up, leaving Guerrero to sleep, she dressed, ate some pizza, drank a soda and called Baltsas to pick her up because she missed him, felt she had been taken advantage of and wanted to leave.
Ditmars's testimony about the subsequent events after Baltsas arrived in the Volvo with Zingsheim to pick her up from Guerrero's house differed slightly from her interview statements. When they arrived, they parked down the street and walked into the garage where she first greeted them and then found them putting items in Guerrero's Navigator when she returned with her belongings to put them in the Volvo. When she could not start the Volvo to leave, Zingsheim, who had gotten in the Navigator with Baltsas, got out and started the Volvo. Ditmars became angry when Baltsas drove off in the Navigator without them, feeling he had abandoned her and Zingsheim. Driving away from Guerrero's home with Zingsheim, Ditmars talked with him about "jacking," i.e., robbing, Guerrero to get even with him for taking advantage of her intoxication.
Ditmars's versions of the events also changed slightly depending on whether she was being questioned by the prosecutor or one of the defense counsel.
When Ditmars and Zingsheim arrived at Maxwell's, whom she remembered had previously fought with Guerrero and might come to her rescue, Ditmars told him and Murphy what had happened and that she was "going back and rolling on" Guerrero. Ditmars saw two guns in the garage, said the four had some crystal meth and talked about stealing items from Guerrero, and that Maxwell talked about going to "kick his ass." On the way to Guerrero's, Ditmars rode with Maxwell, telling him the things she wanted to take from the residence.
After they arrived, Ditmars went to Guerrero's bedroom and took his cellular phone so he could not use it and as she left, Maxwell and Murphy entered the bedroom with guns. Downstairs, Ditmars unplugged some stereo equipment and heard a noise like a window breaking and glass falling. Although she initially denied hearing a gunshot or telling police that she had, she later said she did hear the gunshot. She conceded that she picked up a shell casing in the bedroom from the floor at one point. She then saw the others taking property and Guerrero sitting on a couch in the living room area unable to move freely with Murphy in the kitchen area watching him. At that time there was a gun on a kitchen counter, but Murphy did not have a gun.
Ditmars' affirmative answers about Maxwell and Murphy having guns when they entered Guerrero's bedroom came only after repeated questioning. She initially replied that she did not remember and that she was reluctant to answer. In addition, most of her statements were the result of repeated questioning after she first could not recall something or could not remember making the statement in her postarrest interview.
Ditmars admitted she went through the kitchen area, closets and drawers of all the bedrooms, removed a television off the master bedroom wall, and carried out of the house a stereo, clothes, bottles of wine and a framed poster. She also saw the other defendants carry out some of the items that ended up in the Volvo in which she was later stopped. She denied, however, pulling out any of the phone lines or knowing who had cut them or the alarm system.
The Defense Evidence
1. Maxwell's Defense
In addition to testifying in his own defense, Maxwell presented the testimony of a friend and neighbor who basically said that Maxwell had shown his honesty in a prior incident when he returned to the neighbor "a chop saw" he had bought from an unidentified party after discovering it had been stolen from the neighbor's garage. The neighbor also testified that on the day of the Guerrero home invasion robbery he was supposed to lend some tools to Maxwell for a landscaping job, but when he saw Maxwell early that morning, Maxwell told him that although he still needed the tools he first had to go to Coronado. Several hours later, Maxwell backed his Toyota 4Runner into the neighbor's driveway with a passenger and opened the rear hatch so the neighbor could put the tools into the back of the vehicle. At that time there was nothing in the back of Maxwell's vehicle. The neighbor admitted on cross-examination that he had three prior felony convictions and that he did not know whether anyone had been in Maxwell's vehicle earlier that morning.
When Maxwell testified, he denied he owned an assault weapon but said he had previously tried to help a friend sell a semiautomatic rifle to first Valdez and then to Guerrero, describing the rifle to both over the telephone. He also noted that his mother had sold all the weapons that had been in the house because he had been in trouble with the law in 1994 and told by the court to sell them. Maxwell conceded he had a fight previously with Guerrero before January 29, 2005, but said that it had been Guerrero who had swung at him first when he had gone with Valdez to pick up Ditmars from Guerrero's house.
As for the events of January 29, 2005, Maxwell had gone early in the morning with Murphy to hit golf balls before returning to Maxwell's house where Ditmars stopped by with Zingsheim, crying and telling them that she had been raped by Guerrero, and wanted to get her property from his house. Maxwell convinced her she needed to go to the hospital. Ditmars wanted Maxwell with her because she was afraid Guerrero would not let her leave and asked Maxwell for a ride back to Guerrero's house. Maxwell denied that that there was any talk with Ditmars about stealing property from Guerrero or about "kick[ing] his ass," or that there was an agreement with Zingsheim and Murphy to rob Guerrero with weapons. Maxwell denied he took any weapons other than his golf club in the vehicle he drove to Guerrero's.
When Maxwell arrived at Guerrero's house, he dropped off Ditmars and then parked down the street before entering the house with her and Murphy, putting his car keys on the bar and going up to the bedroom where Guerrero was sleeping. When Ditmars woke up Guerrero, telling him she was going to the hospital to be checked because she had awakened nude next to him and felt violated, he became upset and lunged at her. Maxwell intervened, pushing Guerrero back. Murphy began arguing with Guerrero when Maxwell did not want to hear Guerrero's explanations. As Maxwell left the room to go downstairs, he saw that everything in the other bedrooms was askew and Ditmars carrying items that did not belong to her. Before leaving the house, Maxwell told Ditmars he did not know what was "going on" and did not want any part of it. He came back inside the house when he discovered he did not have his car keys. After grabbing them off the bar, Maxwell told Murphy as they walked to his car that "[t]his bitch got us into a bunch of fucking mess now."
On the way back to his house, Maxwell stopped at his neighbor's house to pick up some tools before proceeding to Murphy's house to work on some landscaping there. Later, when he returned to his own house, Maxwell heard the police there and decided to stay at a friend's house and contact a lawyer who was a family friend. Maxwell was subsequently apprehended before he could turn himself in to the police.
Maxwell denied that he had cut the alarm, phone or cable wires at Guerrero's house, or that he had stolen any of Guerrero's property. He also denied hearing any gunshot while he was at Guerrero's residence or seeing Murphy at the residence with a gun. Maxwell admitted he had previously been convicted in 2003 for possession of stolen property and in 1995 for a felony crime of violence that was "reduced to a misdemeanor in 199[9]."
2. Murphy's Defense
In Murphy's defense, his counsel read into the record a portion of Guerrero's preliminary hearing testimony to stress that Guerrero had not seen Murphy take any property from his house, or cut any telephone or alarm wires, and did not hear him tell anyone else to do so. Counsel also read a portion of Murphy's postarrest interview with Oliver, where Murphy stated he had put his gun away in his pants pocket when he brought Guerrero downstairs so Guerrero could have a drink during the incident.
To impeach Ditmars, Murphy's counsel also called Ditmars's attorney to the stand to testify that she had given Ditmars a copy of her postarrest interview and had reviewed it with her several times, along with showing her the DVD of the interview, while she was in county jail.
3. Zingsheim's Defense
Zingsheim presented testimony of an expert in his defense who talked about the effects of meth on a person's memory. The expert specifically testified that a meth user's memory could be based on distorted information and that it was possible for a person who used meth in the morning after having an alcoholic blackout the night before to become delusional about what had happened the night before.
Rebuttal
In rebuttal, Oliver testified that in attempting to locate Murphy and Maxwell after the incident, he drove by Murphy's house once or twice before January 31, 2005, and also served a search warrant on the house the morning of January 31, 2005, and did not notice any landscaping work being done at the house. Another detective, who was in charge of searching the back yard of Murphy's home, however, testified that it appeared that some landscaping was being done in the back yard even though it was "full of stuff everywhere," containing at least a dozen bicycles, yard equipment, tools and furniture.
DISCUSSION
I
NO SUA SPONTE DUTY FOR CAUTIONARY INSTRUCTION
During jury instructions discussions, when the trial court went over the list of facts under CALCRIM No. 226 for impermissible bias or prejudice of witnesses and asked whether anything else needed to be added, no party indicated that any other cautionary language needed to be inserted. After further discussion, however, all parties agreed that language regarding any promise of immunity or leniency in exchange for testimony should be deleted from the instruction as no such promises had been made to Ditmars or any other witness. The court also indicated it would include the factor of, " 'What is the witness's character for truthfulness?' " in the instructions, but would delete the statement, " 'If the evidence establishes that a witness's character for truthfulness has not been discussed among people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good.' " Finally, the court noted it would include the language stating, " 'If you do not believe a witness's testimony that he or she no longer remembers something, [that testimony is inconsistent with the witness's earlier statement on that subject.]' " and " 'If you decide a witness deliberately lied about something significant [in this case, you should consider not believing anything that witness says, or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]' "
Without objection, the court summarized the changes to CALCRIM No. 226, as follows: "There was a blank there about other impermissible bias, that was deleted as not appropriate. And also the line about witness being promised immunity, that was deleted, as well as the bracket, '[i]f evidence establishes that a witness' character for truthfulness has not been discussed,' that was deleted."
The court then discussed what modifications needed to be made to CALCRIM No. 335 regarding accomplice testimony where there is no dispute whether the witness is an accomplice, which applied solely to Ditmars. All parties agreed that the instruction should begin by stating, " 'If the crimes were committed.' " The court noted there were no objections to the giving of CALCRIM No. 335 with regard to Ditmars as to counts 1 through 13.
The court subsequently instructed the jury under CALCRIM Nos. 226 and 335 consistent with the modifications at the jury instruction conference.
The court specifically instructed the jury with CALCRIM No. 226 as follows: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. [¶] The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have including any based on the witness's gender, [race], religion, or national origin. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the facts that you may consider are: [¶] How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [¶] How well was the witness able to remember and describe what happened? [¶] What was the witness's behavior while testifying? [¶] Did the witness understand the questions and answer them directly. [¶] Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [¶] What was the witness's attitude about the case or about testifying? [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] How reasonable is the testimony when you consider all the other evidence in the case? [¶] Did other evidence prove or disprove any fact about which the witness testified? [¶] Did the witness admit to being untruthful? [¶] What is the witness's character for truthfulness? [¶] Has the witness been convicted of a felony? [¶] Has the witness engaged in other conduct that reflects on his or her believability? [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. [¶] If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject. [¶] If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest."
The court instructed the jury with CALCRIM No. 335 as follows: "If the crimes charged in Counts 1 through 13 were committed, then Tuesdae Ditmars was an accomplice to those crimes. [¶] You may not convict the defendant of Counts 1 through 13 based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if: One, the accomplice's statement or testimony is supported by other evidence that you believe; two, that supporting evidence is independent of the accomplice's statement or testimony; and three, that supporting evidence tends to connect the defendant to the commission of the crimes. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact mentioned by the accomplice in the statement or about which the witness testified. [¶] On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice. [¶] Any statement or testimony of an accomplice which tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence."
On appeal, Murphy, joined by the other defendants, complain that the pattern jury instructions in California "suffer from a vacuum" because they do not contain a special cautionary instruction regarding the testimony of a witness who testifies as part of a negotiated plea agreement and that the trial court thus prejudicially erred in failing to sua sponte instruct the jury that Ditmars's testimony had to be viewed with greater caution because she pled guilty and her plea agreement had to be considered in the evaluation of her testimony. Defendants assert that neither a request for such cautionary instruction nor an objection was required to preserve the issue for appeal because it is similar in nature to accomplice instructions. Defendants additionally claim the court's failure to give such cautionary instruction violated their federal constitutional rights to a jury trial and to due process. We find the defendants' arguments to be without merit.
First, the premise upon which the defendants base these claims is faulty as Ditmars's plea agreement did not require her to testify against any defendant. She testified on direct and under cross-examination to the fact that she had made no deals with the prosecution regarding her testimony, and the parties agreed during the jury instructions conference that neither Ditmars or anyone else had been given the promise of immunity or leniency for their testimony at trial. There is simply no evidence in this record to support the defendants' speculation that Ditmars testified as a condition of her guilty plea.
Second, the defendants have cited no binding authority, and we are not aware of any, that supports their claim that the trial court has a sua sponte duty to give a cautionary instruction regarding witnesses testifying pursuant to a plea agreement. In the analogous situation of where a defendant has testified under an agreement granting immunity, our Supreme Court has consistently held there was no sua sponte duty to instruct about the relationship between immunity and credibility. (People v. Freeman (1994) 8 Cal.4th 450, 508; People v. Daniels (1991) 52 Cal.3d 815, 867, fn. 20; People v. Hunter (1989) 49 Cal.3d 957, 977-978 (Hunter); People v. Leach (1985) 41 Cal.3d 92, 106.) The defendants' reliance on Banks v. Dretke (2004) 540 U.S. 668, 701-702 and On Lee v. United States (1952) 343 U.S. 747, 757 is misplaced because neither case imposed a sua sponte obligation on a trial court to give a cautionary instruction regarding witnesses testifying under a plea agreement.
Moreover, even in cases where a request for a separate cautionary instruction has been rejected regarding the credibility of a person granted immunity or who was given benefits as an informant, the courts have generally found no error when such fact could be considered under a modified general witness credibility standard jury instruction or, if relevant, under the general instruction coupled with an accomplice instruction. (See People v. Garceau (1993) 6 Cal.4th 140, 190-191; Hunter, supra, 49 Cal.3d at pp. 976-978; People v. Hampton (1999) 73 Cal.App.4th 710, 721-724; People v. Echevarria (1992) 11 Cal.App.4th 444, 449-451.) However, none of those cases remotely suggested or held that a trial court has a duty to either modify the general instructions on credibility of witnesses or to give a special additional instruction on the matter without a defense request.
Third, CALCRIM No. 226 and CALCRIM No. 335 adequately conveyed the point that Ditmars's testimony and statements must be considered with care and caution because she was an accomplice and her testimony might be colored by her own self-interest. Although the defendants claim that CALCRIM No. 335 was "no substitute for fuller instruction based on Ditmars's status as [a] criminal informant benefitting from a plea," as noted above, there was no evidence in the record that Ditmars was an "informant benefitting from a plea" or that there was a request for a "fuller" instruction regarding her testimony and statements due to her plea agreement. If there had been such an objection to the adequacy of the instructions to cover her plea agreement, the court could have then considered whether to add that to the list of circumstances the jury should consider when viewing the credibility of a witness under CALCRIM No. 226 or whether to give an additional pinpoint instruction regarding the relationship between Ditmars's plea agreement and her credibility. Not having done so, the defendants have technically forfeited this issue on appeal. (People v. Guiuan (1998) 18 Cal.4th 558, 570.)
In sum, the trial court had no sua sponte duty to give a cautionary instruction regarding a witness testifying pursuant to a plea agreement. Nor have the defendants shown any due process violation in this regard.
II
CLAIMS OF PROSECUTORIAL ERROR
Maxwell, joined by the other defendants, next contends the prosecutor specifically committed six acts of misconduct, which individually and cumulatively denied them a fair trial. The People counter that the claims of prosecutorial misconduct, also referred to as "prosecutorial error" (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill)), have been forfeited by the failure of the defendants to object to the various alleged acts of misconduct on that same ground or to request that the jury be admonished to disregard the alleged respective impropriety. After setting forth the pertinent law, we address each of the defendants' assertions of prosecutorial misconduct.
A. Applicable Legal Principles
"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44.)
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447.) Therefore, to avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553.) However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for an admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1201 (Cole).)
Specifically, a prosecutor commits misconduct when he or she intentionally elicits inadmissible evidence or testimony. (People v. Chatman (2006) 38 Cal.4th 344, 379-380.) However, evidence presented that a witness is afraid to testify or is fearful of retaliation for testifying, including that of the witness's demeanor, is relevant and admissible to the credibility of the witness and does not constitute misconduct even if intentionally elicited. (Evid. Code, §§ 210, 351, 780, subd. (a); People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450 (Sanchez).) Further, use of leading questions, those that suggest to the witness the desired answer, is not prejudicial misconduct in the absence of a showing that such examination, if not excused in the interests of justice, had the effect of deliberately producing inadmissible evidence or calling for inadmissible or prejudicial evidence. (Evid. Code, §§ 764, 765, 767; People v. Augustin (2003) 112 Cal.App.4th 444, 449; People v. Hayes (1971) 19 Cal.App.3d 459, 470.)
In addition, although a prosecutor may not give a personal opinion or belief as to a defendant's guilt if it will suggest to the jury that the prosecutor has information bearing on guilt that was not disclosed at trial, the prosecutor may offer an opinion on the state of the evidence as long as it amounts to fair comment, which includes reasonable inferences and deductions drawn from the evidence. (People v. Frye (1998) 18 Cal.4th 894, 975-976 (Frye); Hill, supra, 17 Cal.4th at p. 819.) In such situations, the prosecutor's statements must be viewed in the context of the arguments as a whole and the defendant, to prevail on a claim of misconduct based on those statements, must show a reasonable likelihood that the jury understood or applied them in an improper or erroneous manner. (Frye, supra, 18 Cal.4th at p. 970.) Moreover, " '[i]t is improper for the prosecutor to misstate the law generally . . . and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (Hill, supra, 17 Cal.4th at p. 829.)
"When a defendant makes a timely objection to prosecutorial [error or argument, or such objection is excused], the reviewing court must determine first whether misconduct has occurred. . . . [Citation.] Second, if misconduct had occurred, we determine whether it is 'reasonably probable that a result more favorable to the defendant would have occurred' absent the misconduct." (People v. Welch (1999) 20 Cal.4th 701, 752-753.)
With these rules in mind, we turn to the defendants' claims of prosecutorial misconduct on appeal.
B. Failure to Disclose Conversation With a Witness
The defendants specifically complain that the prosecutor committed prosecutorial misconduct when he failed to disclose to the defense a conversation between the prosecutor, the investigating officer Oliver and the then-testifying witness Bruce Langdon, Murphy's neighbor and friend. As we explain, defendants have forfeited this claim of prosecutorial misconduct.
When Langdon was answering questions on direct examination about the backpack he had given Oliver that Murphy had dropped off at his house after the Coronado crimes, Langdon mentioned he had talked to the prosecutor and Oliver sometime during the week while he waited to testify about whether he remembered two guns being in the backpack. Langdon testified that, after thinking some more about what Oliver had said to him previously about a revolver in the backpack, he realized he never knew a revolver was there and thus could not have been the one who told Oliver that a revolver was in the backpack. Defense counsel immediately requested a sidebar, noting that the defense did not have any report of the conversation.
At sidebar, when the court asked the prosecutor whether he had informed the defense about the conversation and its contents, the prosecutor stated he had not, explaining that "[Langdon] was waiting to testify about the backpack and the guns. And I said: You remember that? [¶] And he goes: Well, I asked him about guns in the backpack. [¶] And he said: I don't remember. [¶] I said: Well, did you tell Oliver? [¶] He said: No. I remember Oliver said now he remembers. [¶] That wasn't exculpatory. I don't have to tell [the defense] about every time I talk to a witness. [Langdon] said he remembered, as he acknowledged, then he went home. I haven't talked to him about it since. He's backing up what he said." When the court then asked why "as an issue of discovery" it should allow the prosecutor to continue questioning about the conversation that had not been disclosed to the defense, the prosecutor responded that "[i]t's consistent with what [Langdon] said [and t]here is nothing exculpatory about it."
Defense counsel essentially asked the court for an order directing the prosecutor to give the defense any additional information obtained from conversations with witnesses and in preparation for their testimony so that they would be able to properly cross-examine the witnesses. The court agreed, sustaining the objection and directing the prosecutor to turn over any other statements that the prosecutor intended to explore with his witnesses and, with specific regard to Langdon, not to go any further into that recent conversation. After the sidebar, the prosecutor asked Langdon two questions about whether Murphy had referred to an incident in Coronado when he gave Langdon the backpack, but did not inquire further about the conversation.
As the record shows, none of the defendants made a specific objection on the ground of prosecutorial misconduct regarding the prosecutor's failure to disclose the subject conversation, or request that the court admonish the jury about the matter in any way. Rather, the court ruled upon the defense discovery objection and made an appropriate order based on the defendants' counsel's request. Because the defendants cannot show under these circumstances that a timely objection or request for an admonition would have been futile or would not have cured any error, this claim of prosecutorial misconduct is waived. (Cole, supra, 33 Cal.4th at p. 1201.)
C. Inquiry About Photograph of a Gun
The defendants next claim that the prosecutor committed prejudicial misconduct, when he cross-examined Maxwell about whether he had taken a photograph of a weapon that a friend asked him to help sell. Defendants argue that asking the question of Maxwell was in violation of an in limine ruling precluding the questioning of Maxwell about a photograph of a rifle that had been obtained by police during a search of Maxwell's residence. Again, the defendants have forfeited the issue by failing to specifically request an appropriate admonition regarding the objected to inquiry which would have cured any conceivable error. We explain.
In limine, Maxwell had filed a motion to exclude as evidence a photograph of an assault weapon that had been provided to police by Maxwell's mother after they asked if she had any guns in the house during a search of the home. Believing that the prosecutor would use the photo to suggest it was the weapon Maxwell had used during the Guerrero home invasion robbery, defense counsel argued there was no foundation for its admission because no witness had seen the photographed weapon in Maxwell's possession or home, and the admission of the photograph would be more prejudicial than probative under Evidence Code section 352. The court granted the motion.
Maxwell's mother had died shortly before trial.
At trial, Maxwell testified on direct examination that he had never owned a semi-automatic rifle that looked like an assault weapon. He admitted, however, that he had tried in the past to help a friend sell one. On cross-examination, the prosecutor asked Maxwell if he were certain that he did not have any assault weapons. When Maxwell said he was certain, the prosecutor asked whether he had ever taken a picture of the gun that he tried to help his friend sell. Maxwell's counsel immediately objected and asked for a sidebar conference.
At the conference, the trial court informed the prosecutor that it was uncertain whether the prosecutor was "going to that area that was previously discussed about the photograph of the gun" when he questioned Maxwell about having taken a picture of a gun. When the prosecutor said he was only laying a foundation "to get there," Maxwell's counsel argued that the matter regarding the photo had been covered in the in limine motion and that Maxwell had only testified that he had seen the friend's gun that was for sale in the trunk of the friend's car and had made no mention of a photograph. Counsel expressed his irritation with the prosecutor who appeared to be attempting to go around the court's in limine ruling to get to the excluded photograph of the gun given to the police by Maxwell's mother. The court agreed, commenting that the door for the photograph had not been opened.
The prosecutor persisted, stating he was simply asking Maxwell whether he had a photo of the gun he tried to help his friend sell because he had described it as an AR-15, an M16, which is the same type of gun depicted in the photo that had been produced by his mother. The prosecutor argued, "[a]nd, potentially, depending on the answer, even I'd submit that as far as the gun was pictured, had he ever seen this photo before. Depending on his answers, then, how it came into police possession may be relevant, which was the subject of the motion, but not his total denials of having the gun. That gun could be showed to him now, based on his description: Is this the gun you are describing? And there is no violation of any in limine order."
Other defense counsel joined in the objection, noting that the prosecutor could have sought clarification of the in limine matter before asking Maxwell about the photo of a gun before the jury and that there would be no way to impeach Maxwell with the photo if he denied ever taking a picture of the gun or seeing a picture of the gun for sale.
The court sustained the objection, explaining its concern that the prosecutor had asked the question without seeking an advance ruling in light of the in limine ruling before going in the direction toward asking about the photo of the gun provided the police by Maxwell's mother which had been excluded. The court, however, commented that although the prosecutor could not ask about nor mention the photo of the weapon, he could ask Maxwell what was the basis for his description of the gun that he had tried to help his friend sell.
Not satisfied with this ruling, the prosecutor continued to argue that Maxwell had opened the door to the inquiry because he had testified there were no rifles or guns in his home and that Maxwell's mother had provided the photo to police after she was asked whether there were any guns in the home. After further argument and discussion about whether the photo depicted a rifle with a scope and whether there was any date stamp on the photo to indicate when it was taken, the court ruled the photograph was inadmissible under Evidence Code section 352.
After yet additional discussion and argument about the scope of the gun depicted in the excluded photograph, including Zingsheim's counsel's comments that he would ask for a mistrial in front of the jury if the prosecutor started "getting into anything having to do with scopes or photographs," the court concluded that any inquiry regarding the scope of the weapon depicted in the photograph also came within the in limine ruling and would be excluded under Evidence Code section 352. After the conference, the prosecutor asked no other questions about either a picture of a gun or about the scope of a gun.
Although none of the defendants specifically used the words of prosecutorial misconduct when making their objections to the prosecutor's question about whether Maxwell had taken a photo of the gun he was going to try to sell for his friend, it is clear from the record that they were complaining about the prosecutor's conduct in allegedly trying to elicit evidence in violation of an in limine ruling. However, no defense counsel asked that the prosecutor's question to Maxwell be stricken or requested any admonition, which could have cured any perceived error in the posing of the question. Because the defendants again cannot show on this record that a request for an admonition would have been futile or would not have cured any possible error, this claim of prosecutorial misconduct is also technically waived. (Cole, supra, 33 Cal.4th at p. 1202.) In addition, because the photograph was never admitted and the defendants essentially obtained the relief they sought by their objections to the prosecutor's photo question which was never answered, and the jury was instructed that questions to witnesses are not evidence, it is difficult to perceive any harm from the prosecutor's conduct in this regard.
D. Inquiries as to Whether Ditmars was Glancing at Maxwell During Her Testimony
The defendants further contend the prosecutor committed prejudicial error when he referred twice to Ditmars looking at Maxwell while she was on the witness stand testifying. As we explain, this claim is forfeited as well as having no merit.
After Ditmars testified on redirect examination that she could not remember telling the police that she and Zingsheim were going to have Guerrero "rolled" and that her reading of her police interview transcript did not refresh her memory, the prosecutor asked her to explain her answer. When Ditmars said she forgot what she was going to say, the prosecutor asked her whether she ever looked at Maxwell while she was testifying. Maxwell's counsel's objection on grounds of relevance was overruled by the court. Maxwell's counsel again objected on relevance grounds when the prosecutor asked Ditmars why she was looking at Maxwell after she had affirmatively responded to the earlier question. When the court again overruled the objection, Ditmars replied, "Because I can."
The prosecutor then asked Ditmars if she had attempted to mouth a word to Maxwell. She said she had not, adding that she did not want to be a "snitch" or have a "snitch jacket." When the prosecutor asked whether it was important for her to know that the defendants did not think she was testifying on her own accord, Maxwell's counsel objected on grounds of speculation and being argumentative, which were sustained by the court. The prosecutor then proceeded to ask Ditmars a series of questions about her fears in testifying and several times about her belief that she would be in danger if the defendants thought she were testifying voluntarily. After various objections by all counsel on grounds of relevance, vagueness, speculation, compound question, argumentative, some which were sustained, the court advised the prosecutor to address the issue with respect to each individual defendant, instead of all together.
When he did so, Ditmars essentially said she was not there voluntarily and did not want any of the defendants to think otherwise. The court decided to hold a sidebar conference after the defendants' counsel continued to object on various grounds to the prosecutor's line of questioning Ditmars about her fear of retaliation if it became know that she were there voluntarily.
At sidebar, the prosecutor argued that his inquiries went directly to Ditmars's willingness to tell the truth because she had brought up the issue of the "snitch jacket." After further discussion as to whether the objected-to questions were prejudicial, argumentative and designed to incite Ditmars and to have the jury draw the inference that the defendants had threatened her, the court suggested that the prosecutor lay the foundation by asking whether Ditmars had lied to the jury about not remembering. Afterwards, when the prosecutor asked Ditmars whether she had lied to the jury at any time during her testimony, she replied that she did not know and expressed concern about getting a "snitch jacket," which she did not want.
The next day, when the prosecutor continued to question Ditmars, she denied she remembered whether she had told Maxwell that she was going to steal from Guerrero. When the prosecutor asked her, "You remembered yesterday, right, or was that just the transcript?," Maxwell's counsel objected to the question as argumentative. When the court overruled the objection, the prosecutor told Ditmars, "I am asking which one it was. You keep looking over there." When Ditmars blurted out that she could look wherever she wanted, the prosecutor asked if there was a reason she was looking at Maxwell. Ditmars then denied that she could see Maxwell from where she was sitting. At this point, Murphy's counsel asked that the record reflect that Ditmars was looking at him, Maxwell's counsel indicated the record should reflect that "the court reporter [was] sitting directly in the line of sight, plus from that angle . . . the court's bench [was] also covering her line of sight over to Mr. Zingsheim and Mr. Maxwell," and Zingsheim's counsel added that it was the jury's duty to watch the demeanor of a witness, not that of the prosecutor to comment upon. Stating that it had no way of knowing who Ditmars was looking at, the court directed the prosecutor to "move on."
As pointed out by the People in their respondent's brief on appeal, Maxwell's counsel did not make a specific objection on the ground of prosecutorial misconduct to either of the questions asking Ditmars about looking at Maxwell, nor did he or the other defendants ask for any admonishment to the jury about the prosecutor's above line of questioning of Ditmars generally about her demeanor and credibility. Although the defendants are correct that the demeanor and credibility of a witness are solely the province of the jury to determine, as we have noted above, evidence of a witness's fear of testifying, fear of retaliation for testifying, as well as evidence about the witness's demeanor in testifying are relevant and admissible as to the credibility of a witness and do not constitute misconduct even if intentionally elicited by the prosecutor. (Evid. Code, §§ 210, 351, 780, subd. (a); Sanchez, supra, 58 Cal.App.4th at pp. 1449-1450.) The defendants' claim of prosecutorial error based on the prosecutor's inquiries as to whether Ditmars was glancing at Maxwell during trial are therefore technically waived and without merit.
E. Comments on Aiding and Abetting
The defendants also claim the prosecutor committed prejudicial misconduct by misrepresenting the law on aiding and abetting during jury voir dire and during closing rebuttal argument. Again, we conclude the claims are waived and without merit.
1. Jury Voir Dire
During jury voir dire, the prosecutor explained the concept of aiding and abetting to the prospective jurors by providing them an example of a bank robbery where both men could be guilty of murder under aiding and abetting and conspiracy theories even though only one man entered the bank to commit a robbery and shot the teller while the other man waited outside in the car to drive them away because both were engaged in the same enterprise. The prosecutor further explained that "[e]ven though it wasn't a robbery, when you go and rob somebody, you can expect them to fight back; right? Even though you don't intend to shoot somebody, you can expect there will be resistance. And what's foreseeable? Some people get hurt; right?"
The prosecutor then asked a prospective juror if she could follow the law and apply it as he had just indicated. After receiving an affirmative response, he asked another prospective juror how she felt, adding, "I didn't pull the trigger." The prospective juror responded that the prosecutor would still be guilty since he was "part of it." When that prospective juror then questioned whether the person who did not pull the trigger would be guilty of a lesser crime than murder and the prosecutor responded by asking, "[w]hat if the instruction said they are equally guilty," all three defense counsel objected to the question as misstating the law even though the prosecutor noted that "that's what the instruction says." After the court overruled the objection, defense counsel objected to the paraphrasing of the law on aiding and abetting, complaining that the prosecutor was giving only selective portions of the law, which basically misstated and trivialized the burden of proof. The court again overruled the objections, stating that defense counsel could voir dire on the subject matter as well.
2. The Prosecutor's Closing Rebuttal Argument
During his closing rebuttal argument, the prosecutor reminded the jury that he had objected the day before to the law on aiding and abetting as represented by the defense. After he then told the jury that "[Murphy's counsel] read you the law, sort of. Aiding and abetting. You have to show that the perpetrator did the crime; that the aider and abetter knew that he intended to commit the crime. There is no requirement that he shared the intent to commit the crime," all three defense counsel objected that the prosecutor was misstating the law. The court directed the jurors to the instruction that it was going to give them, stating that the "instructions are what control."
The prosecutor then explained that all he had to show was "that [the aider and abetter] knew the person was going to commit a crime and he intended to aid or facilitate that crime." When the prosecutor then provided an example to the jury, Murphy's counsel objected that such misstated the law and the court again reminded the jurors that they were controlled by its instructions. The prosecutor concluded his thoughts by saying that the person in his example was an aider and abetter because "[he] intended--with the knowledge that he's going to commit that crime, [he] intended to aid him. [¶] When you [the jury] get that instruction, read it. You will see that this is what it says."
The prosecutor specifically stated, "Let me give you an example. You are at home, you are in your living room, and you've got guns. Your best friend who lives down the street is going to kill somebody who's done him wrong, and he comes over, and he says, 'I am going to go kill Joe. Give me one of your guns.' [¶] All right. I ain't got a gun. I need a gun to go kill Joe, and Joe is not around, but you say to him, 'Don't do that, man. You could spend the rest of your life in prison. Are you going to give me the gun or aren't you?' [¶] And you go get your gun and you give it to him. You are an aider and abetter . . . ."
After the prosecutor completed his closing rebuttal argument and the court instructed the jury on the applicable law, all three defense counsel requested the court indicate to the jury that an aider and abetter must share the intent of the perpetrator pursuant to People v. Beeman (1984) 35 Cal.3d 547, 560, arguing that the CALCRIM and CALJIC instructions on aiding and abetting were in error because neither included the word "share" as required by Beeman. After reviewing the language of CALCRIM No. 401 given the jury, the court denied the request and overruled the objections, finding that
the intent required for aiding and abetting was sufficiently covered in the instruction given.
CALCRIM NO. 401 as given the jury provided in pertinent part that: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: One, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and, four, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abetter."
3. Analysis
Even assuming the defendants' various objections of misrepresentation of the law by the prosecutor's paraphrasing of the instruction on aiding and abetting during jury voir dire and his statements during closing rebuttal argument were sufficiently specific claims of prosecutorial misconduct, none of the defendants requested the court to admonish the jury on the alleged misrepresentations, which clearly could have cured any purported error. Although the defendants asked the court to modify CALCRIM No. 401 on aiding and abetting to include the requirement of "sharing" the specific intent of the perpetrator to commit a crime, such request is not the same as asking for an admonishment regarding the prosecutor's alleged misrepresentations of the law. Moreover, the court advised the jury several times that it was required to follow its instructions to the extent the jury believed the attorneys' comments on the law conflicted with the instructions. We presume the jury understood and followed the court's instructions. (People v. Jablonski (2006) 37 Cal.4th 774, 834 (Jablonski).)
Interestingly, the defendants do not challenge on appeal the correctness of the CALCRIM instructions given the jury in this case.
In addition, it is well established that " '[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' [Citations.] Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) In other words, "[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (CALCRIM No. 400.) Thus contrary to the defendants' assertion, the prosecutor did not misrepresent the law by telling the jury during voir dire that the two individuals attempting to rob a bank in his example would be "equally guilty" of murder even though only one of the individuals pulled the trigger.)
Similarly, because the law specifies that " '[a] person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime' [citations]" (Hill, supra, 17 Cal.4th at p. 851), the prosecutor did not misrepresent or misstate the law during rebuttal closing argument. Although an aider and abetter may share the perpetrator's specific intent to commit the crime, an aider and abetter need not do so; an aider and abettor need only act with knowledge of the unlawful purpose and with the intent to commit, encourage, promote, or facilitate the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) No prosecutorial error in this regard is shown.
F. Comment on the Evidence During Closing Argument
During rebuttal closing argument, the prosecutor in responding to arguments of defense counsel, stated, "You [the jurors] will get lesser included offenses, all right. Let me explain to you how the lesser included offenses work. Let me start out with robbery. Okay? That's another thing. You know, I think it was [Murphy's counsel who] got up and said: Was there even a robbery in this case? [¶] I didn't do my job right if you don't believe, as you sit there, there was a robbery in this case, okay?" Murphy's counsel immediately objected on grounds of "improper argument," which the court sustained. The prosecutor then argued that "there is a lot of evidence to suggest -- to prove beyond any doubt there was a robbery in this case," and proceeded to go through the verdict form for robbery, including the lesser offenses for that charge.
The defendants assert the prosecutor's comment that he "didn't do [his] job right if you don't believe, as you sit there, there was a robbery in this case," constituted prejudicial prosecutorial misconduct. Again, even construing the prosecutor's remark as an improper personal belief as to the defendants' guilt rather than an offhand comment on the state of the evidence, the defendants did not request the jury be admonished about such remarks, which would have cured any harm, and, therefore, the issue is waived on appeal. (Cole, supra, 33 Cal.4th at p. 1201.)
Further, even assuming the defendants had not forfeited this claim of error, they cannot prevail as they have not shown a reasonable likelihood on this record that the jury understood or applied the prosecutor's comments in an improper or erroneous manner (see Frye, supra, 18 Cal.4th at p. 970), and we presume the jury followed the court's instructions, which included the advisement that the attorneys' remarks during closing argument were not evidence. (Jablonski, supra, 37 Cal.4th at p. 834.) Additionally, any perceived error in the prosecutor's brief remark is harmless on this record, which included overwhelming evidence that the defendants planned to steal property from Guerrero before driving to his home in two separate vehicles, disabling his telephone and alarm systems before entering and confronting him with guns, and then taking a large quantity of his property away from his home in the vehicles.
G. Use of Leading Questions
During Guerrero's direct examination, the prosecutor showed him numerous photographs, asking him whether he recognized the items depicted in each photograph. When the prosecutor showed Guerrero a photograph marked exhibit number 49 and asked him if he recognized the item in the photo, Guerrero said the item was a decorative flask that he kept on a table on the first floor of his home. When Guerrero did not know if the item had sat on something that was taken from his home, the prosecutor asked, "Can you tell what the item is under it? Does that appear to be like a duffel bag? Some kind of bag?" The court sustained Murphy's counsel's immediate objection to the question as leading. Although the prosecutor then rephrased the question, all three defense counsel asked for a sidebar regarding the prosecutor's line of questioning.
At sidebar, Murphy's counsel, joined by Zingsheim's counsel, complained about the prosecutor's intentional use of leading questions to his witnesses "over and over and over again." The defense counsel found it objectionable that the prosecutor was "priming his witnesses and giving them answers" so they could give him the answers he wanted when he asked questions properly after the court sustained objections for leading the witness.
After the court acknowledged that it had noticed "a lot of leading" and instructed the prosecutor not to do so, the prosecutor conceded he had done so, but commented that:
"Nobody objected because they wanted me to get through some of these areas. [¶] And I don't necessarily find it to be leading when you know I'll use an example as a hypothetical. You have some speakers that are obviously speakers: Hey, do you see those speakers there? That's not really leading. It's what everybody can see and know. [¶] They have some objections, and some of them might be proper. They kind of pick and choose when they want to object on the leading. A lot of times they wanted me to use leading questions to get through, and then they draw a line."
Although Maxwell's counsel conceded that the court had asked the prosecutor to "cut corners instead of [questioning on] all the cumulative photographs," he objected that he had not heard any defense counsel or the court tell the prosecutor to just lead the witness. Zingsheim's counsel added that the defense did not appreciate being placed in a position to continually interpose objections for leading questions and feared such could create an atmosphere where the jury thought the defense was trying to hide something.
The court reiterated that there were "a lot of leading questions," acknowledged that the prosecutor was trying to save time, but suggested the "need to do things the correct way," advising the prosecutor to "proceed with that understanding." Afterwards, the prosecutor resumed with his questioning of Guerrero regarding the photographs with only one additional sustained objection for leading.
On appeal, the defendants contend the continual use of leading questions by the prosecutor during the direct examination of his witnesses constituted error, which denied them their constitutional rights to a fair trial and to due process of law. Once again, the defendants' claim of prosecutorial error based on this line of leading questions is forfeited on appeal by the failure to ask that the jury be specifically admonished about such, which would have cured any harm. Although the prosecutor admitted he had used leading questions when he reviewed numerous photographs of stolen property with Guerrero, because the prosecutor was seeking purely factual, noncontroversial, admissible information that was depicted in the photographs, the use of the leading questions, even if inappropriate on direct examination, was not prejudicial misconduct in the absence of a showing that such had the effect of deliberately producing inadmissible or prejudicial evidence. (Evid. Code, § 764; see People v. Hayes (1971) 19 Cal.App.3d 459, 470.) No such showing has been made.
To the extent the defendants are claiming misconduct based on the general practice of the prosecutor to use leading questions with all of his witnesses in this case, the assertion fails because the defendants have not identified the specific other instances of leading questions to other witnesses that were objected to on prosecutorial misconduct grounds and for which admonishments were sought. In other words, we decline to scour the record to find support for defendants' generalized claim in this regard.
H. Cumulative Prosecutorial Error
Finally, the defendants contend that the cumulative effect of all the incidents of prosecutorial misconduct constituted reversible error. Defendants essentially argue that "the sheer number of instances of prosecutorial misconduct . . . raises the strong possibility the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone" (Hill, supra, 17 Cal.4th at p. 845), and that the combined effect of the prosecutor's antics irreparably prejudiced their constitutional rights to a fair trial and to due process. We disagree.
Because we have found no prejudicial error in any of the defendants' claimed instances of prosecutorial misconduct, they cannot show cumulative error, or that they were denied due process or a fair trial. (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)
III
NO PREJUDICIAL GRIFFIN OR DOYLE ERROR
During his direct examination, Maxwell testified that after the incident at Guerrero's home, his mother's house was raided by a police SWAT team. In shock, Maxwell placed an emergency call to a family friend and lawyer named Jack Phillips. Because Phillips was not in, Maxwell waited until the next Monday and called him again, making an appointment to see him. After the appointment with Phillips, Maxwell stayed at a friend's house with the intent of turning himself in on the Monday after the Super Bowl and after he had retained counsel. Before he could do so, Maxwell was apprehended in El Cajon, California, at gunpoint by the fugitive task force.
Maxwell stated that when the police arrested him, ordering him out of his car, they pushed him to the ground, stomped on him, pulled his arms behind his back and zip-tied his hands, before getting him up and putting him in the back of an El Cajon police car. Maxwell denied making any statements, having any conversation with anyone in the car, or telling the police, "This is what I get for doing this, helping a girlfriend." He maintained that he said absolutely nothing to anybody in that police car because he had been told by "Phillips not to say anything or talk to anybody about the case if [he were] apprehended before [he] turned [himself] in."
Maxwell did, however, concede he had made a statement after he was transferred to a Coronado police car, but asserted the statement was different than the one the detective had testified he had said. In response to the detective commenting that the news crews were not following him anymore, Maxwell said, "This is what you get for helping a girl get away from an estranged guy."
On cross-examination, in response to a question of whether he ever returned home between the day of the Guerrero crimes and the day of his arrest, Maxwell said "no," because he was on probation, knew he might be in violation of his probation, and wanted to speak with Phillips before talking to the police. After several other areas of cross-examination, the following colloquy occurred between Maxwell and the prosecutor:
"[Prosecutor:] Now, sir, you told us, did you not, that your attorney Jack Phillips told you not to talk to the police; right? [¶] Didn't you tell us -- that's what you testified on direct?
[Maxwell:] He told me I should invoke my Fifth Amendment and tell them I retained counsel."
[Prosecutor:] And you followed his instructions; right?
[Maxwell:] Yes.
[Prosecutor:] Based on his instructions, you didn't give a statement to the police?
[Maxwell's counsel:] Objection. Misstates the evidence.
The Court: Sustained.
[Prosecutor:] Well, did you give a statement to the police then?
[Maxwell:] I didn't think it was a statement. It was more of a comment.
[Prosecutor:] Other than the comment that we are talking about with [the detective], you didn't provide a statement, right?
[Maxwell:] No.
[Prosecutor:] Okay. You didn't testify at the preliminary hearing in your case, did you?
[Zingsheim's counsel:] Your Honor, I object to this line of inquiry. It's a violation of his constitutional rights.
The Court: Sustained.
[Prosecutor:] Well, you were in court for your preliminary hearing, right?
[Maxwell:] Correct.
[Prosecutor:] And you were--you have been in court for all your hearings, right?
[Maxwell:] Yes.
[Prosecutor:] And you've reviewed all the -- you've heard the witnesses testify at your various hearings, right?
[Maxwell:] Yes.
[Prosecutor:] And you went through the discovery in your case; right? [¶] In other words, you had a chance to review the reports and things?
[Maxwell:] Yes.
[Prosecutor:] You went over that with your attorney prior to testifying here, right?
[Maxwell:] Yes.
[Prosecutor:] And now you are telling your story to this jury, right?
[Maxwell:] I am not telling a story, I am testifying to the facts.
[Prosecutor:] I understand. [¶] But this has been your opportunity to tell your story, right?
[Zingsheim's counsel:] Objection. Argumentative.
The Court: Sustained.
[Prosecutor:] This is the first time you've told the facts, right?
[Murphy's counsel:] Speculation, your Honor. Lack of foundation.
The Court: Sustained.
[Prosecutor:] As far as it relates to court or law enforcement, right? [¶] This is the first time, right?
[Maxwell's counsel:] Judge, I believe it's going to get into, again, what [Zingsheim's counsel] previously made the same objection to.
The Court: Sustained.
[Prosecutor:] I'll withdraw the question."
After further cross-examination by the prosecutor and the codefendants' counsel, the court discussed jury instructions with counsel before adjourning for the weekend. The next court day before the jury was brought in, Maxwell's counsel complained that the prosecutor had continued to question Maxwell over objection "after he stated and gave his reason why he entered a Fifth Amendment right when he was arrested." Counsel argued such was "clear Griffin error, and because of that error, [he] would be requesting a new trial or a mistrial in this case."
When the prosecutor countered that he did not believe it was Griffin error because all his questions, except for one about testifying at a preliminary hearing, which was withdrawn when objected to, were only follow-up questions to what Maxwell had testified about on direct examination, the court asked Maxwell's counsel to clarify whether he was "referring to the cross-exam questions regarding why [Maxwell] did not testify at the prelim." Counsel responded, "Why he didn't testify. Why he didn't give a statement to the police." Counsel explained that the only live questioning of Maxwell had been about one statement made during his transport regarding "helping out a girlfriend from an estranged guy" and that there had been no questioning about Maxwell's "prior court appearances, [his] testifying or refusing to testify in a prelim or any previous hearing, or at any time refusing to testify to a police officer or give a statement. [¶] And that's where [the prosecutor] crossed the line, is by inquiring into that, when he knew, not only did I object, [Zingsheim's counsel] objected . . . two times. And, again, I said: Judge, enough of this. How many times do we have to object? I believe the court said: Move on."
Zingsheim's counsel then added her "two cents" that the line of questioning by the prosecutor was improper because it was "designed to have the jury consider why it was that Mr. Maxwell waited until his trial was in session before he made any statements to anybody," and that such was intentional because the prosecutor knew that most criminal defendant's do not testify at their own preliminary hearings. Zingsheim's counsel asked for a mistrial for all defendants because the Griffin issue made the trial unfair for everyone.
Although the court recalled that there had been some initial questioning regarding Maxwell's presence at the preliminary hearing, it noted that the question inquiring whether he had testified at that hearing had been withdrawn. The court denied Maxwell's motion for a mistrial without prejudice to "reraise it with a copy of the relevant portion of the transcript and any case law analyzing" the issue, and also stated that Zingsheim's counsel could "reraise the issue with the relevant motion with the transcript and case law analysis" as to how the purported Griffin error as to Maxwell would affect Zingsheim.
Subsequently, during a break before closing arguments commenced, the prosecutor advised the court that the transcript of Maxwell's testimony had been completed the night before and that he was seeking a ruling on the defendants' Griffin motion before the jury decided the case. When the court asked defense counsel whether they had prepared any written pleadings on the matter in light of the transcript on which it could rule, Maxwell's and Zingsheim's counsel essentially asked that the matter be continued until after oral argument as they had not had time to read the transcript or prepare written pleadings due to preparing for closing arguments. The court granted the request, saying the matter would be addressed after the jury was sent out.
Later, during a break in the prosecutor's rebuttal closing argument, the court and counsel went over a proposed jury instruction prepared by the prosecutor with regard to the alleged Griffin error. After discussions, the court agreed to give the following instruction as modified upon defense counsel's request: "A defendant in a criminal proceeding can never be compelled to testify. It is unusual and rare that a defendant does testify at a preliminary hearing. Whether a defendant does or does not testify at a preliminary hearing has no relevance to any issue in this case and may not be considered by you."
When the jury left the courtroom to start deliberations, the court turned its attention back to the alleged Griffin error. After Zingsheim's counsel withdrew any joinder in Maxwell's motion because she could not "come up with any research to support an argument on behalf of Mr. Zingsheim stating that the error would apply to him," and Murphy's counsel noted that he had not made any objection on Murphy's behalf regarding the matter, the court asked Maxwell's counsel whether he had any additional argument beyond what he had presented in his motion papers. Counsel replied:
"No, Your Honor. I believe -- having reviewed the transcript, also, I believe that the [prosecutor] started questioning after Mr. Maxwell stated that he had previously talked to his attorney. [¶] His attorney advised him to invoke the Fifth, and then he invoked his Fifth Amendment right, refused to testify based on his constitutional rights at preliminary hearing. [¶] And when the [prosecutor] start[ed] inquiring into that, that is where I believe he stepped beyond the line and started questioning about his reasoning for not testifying at a prelim, and I think that's where he committed the error."
Maxwell's counsel then provided the court with the specific pages in the reporter's transcript of Maxwell's cross-examination, which he claimed were objectionable and for which he agreed with the court that the objections interposed by the various defense counsel had been sustained. When the court inquired whether Maxwell's counsel's position was that there had been Griffin error and that the error deprived Maxwell of a fair trial, counsel responded that he believed such had tainted the jury, reiterating that the prosecutor had "crossed the line" by questioning Maxwell about the invocation of his Fifth Amendment right and had "ended up suggesting to a jury: 'You had a chance to tell your story in the past, you never did, so now you are lying or coming up here and trying to tell a lie to this jury now,' and yet questioning that area, he violated Fifth Amendment privilege and his right not to testify."
The trial judge denied the motion, stating
"Based on your pleadings and your argument, I will deny your motion for a mistrial and find that it was not error. [¶] And even, assuming arguendo, it was error, that it was harmless beyond a reasonable doubt under the totality of the circumstances of the evidence in this case. [¶] And also, based on the fact that a specific instruction was given, that directly went to that and informed the jury that they were not to consider that, and that was the special jury instruction that we all discussed this morning . . . . [¶] So I will presume that . . . the jury followed that instruction and that that would cure any taint."
On appeal, Maxwell contends the trial court abused its discretion in denying his mistrial motion by finding there was no Griffin error and also by finding any assumed Griffin error was harmless beyond a reasonable doubt. Maxwell further claims that the same questioning constituted prejudicial error under Doyle, supra, 426 U.S. 610, which held that a defendant cannot be penalized for invoking his rights under Miranda v. Arizona (1966) 384 U.S. 436. Maxwell argues that both the Griffin and Doyle errors were prejudicial under Chapman v. California (1967) 386 U.S. 18 (Chapman). As we explain, because we conclude that there was no prejudicial error on this record, the trial court did not abuse its discretion in denying Maxwell's mistrial motion.
A. Pertinent Legal Principles
In general, a motion for mistrial is reviewed for an abuse of discretion, "and such a motion should be granted only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283 (Ayala).) In turn, it is well established that under Griffin, a defendant's Fifth Amendment privilege against self-incrimination and to remain silent is violated when the prosecutor comments directly or indirectly upon the defendant's failure to testify in his defense or urges the jury to infer guilt from the defendant's silence. (Griffin, supra, 380 U.S. at p. 615; People v. Hardy (1992) 2 Cal.4th 86, 154; People v. Medina (1995) 11 Cal.4th 694, 755.) In assessing a claim of Griffin error, we view the prosecutor's allegedly offensive comments in the context of which they were made. (People v. Mayfield (1993) 5 Cal.4th 142, 178.) Although the prosecutor may comment on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses, "[w]hen improper comment on a defendant's silence occurs, the error requires reversal of the judgment unless a reviewing court concludes the error was harmless beyond a reasonable doubt. [Citations.]" (Hardy, supra, 2 Cal.4th at p. 157; People v. Vargas (1973) 9 Cal.3d 470, 475.)
However, "when [a defendant] assumes the role of a witness, the rules that generally apply to other witnesses-rules that serve the truth-seeking function of the trial-are generally applicable to him as well." (Perry v. Leeke (1989) 488 U.S. 272, 282.) In other words, "[o]nce a defendant takes the stand, he is ' "subject to cross-examination impeaching his credibility just like any other witness." ' [Citations.]" (Portuondo v. Agard (2000) 529 U.S. 61, 70 (Portuondo).) As explained by the United States Supreme Court in Jenkins v. Anderson (1980) 447 U.S. 231 (Jenkins) when it held that the Fifth Amendment is not violated by the prosecutor's use of prearrest silence to impeach a defendant's credibility, "[o]nce a defendant decides to testify, '[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.' [Citation.]" (Id. at p. 238.)
Nevertheless, in Doyle, supra, 426 U.S. 610, the United States Supreme Court held that "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." (Id. at p. 618.) The high court in Jenkins distinguished this holding in Doyle by the fact that the defendant in Jenkins had not been induced by any governmental action to remain silent before arrest, while the defendant in Doyle had exercised his right to remain silent after being taken into custody and given warnings under Miranda, supra, 384 U.S. 436. (Jenkins, supra, 447 U.S. at pp. 239-240.) Any claim of a constitutional violation under Doyle, however, is forfeited absent a timely and specific objection on such ground at trial. (People v. Huggins (2006) 38 Cal.4th 175, 198.)
B. Analysis
Here, because Maxwell chose to testify and not to remain silent at trial, his claim of Griffin error is technically inapplicable to his situation. (Portuondo, supra, 529 U.S. at p. 70; Jenkins, supra, 447 U.S. at p. 238.) Nonetheless, because the prosecutor's line of questioning Maxwell on cross-examination set forth above attempted to use Maxwell's exercise of his silence to not testify at the preliminary hearing in a similar manner as the use of the defendant's postarrest silence in Doyle, supra, 426 U.S. at p. 618, i.e., to impeach him with the failure to tell someone the story he was now telling the jury, the prosecutor clearly committed Doyle error. Maxwell's counsel, however, only objected that the prosecutor's line of questioning generally violated Maxwell's constitutional rights and misstated the evidence, both of which were sustained by the court. When counsel brought his mistrial motion the next court day, he based it solely on alleged Griffin error and did not raise any objection or ask for a mistrial based on Doyle error. Nor did counsel expand his subsequently filed written motion to include Doyle error. Under these circumstances, Maxwell has technically forfeited any claim of Doyle error on appeal. In any event, we find the error harmless in light of this record.
The People in their respondent's brief assert that Doyle error was not possible based on Maxwell's trial testimony because he stated he never talked to the police at the time of his arrest and they never told him why he was arrested. The record, however, reflects that Maxwell was transferred to other police officers after his initial arrest and taken to the Coronado police station for processing. No evidence was presented regarding whether or when Maxwell was advised of his Miranda rights. We cannot presume as the People have that none were given at any point of the process.
As noted above, the prosecutor's objected-to line of questioning of Maxwell on cross-examination was brief and any impact of the question regarding his not testifying at the preliminary hearing was ameliorated by the court sustaining the objections interposed by defense counsel and it giving the special instruction admonishing the jury not to consider in its deliberations whether Maxwell had testified at a preliminary hearing.
Further, in addition to Maxwell himself initially testifying about talking to an attorney and then invoking his Fifth Amendment right not to talk with the police because of that advisement, there was overwhelming evidence of his guilt. Despite Maxwell's claim that he did not have knowledge that the others were going to steal items from Guerrero's home and beat him up, testimony from Ditmars and Guerrero, as well as Ditmars' postarrest statement to the police show otherwise. The evidence showed that Maxwell, armed with a gun, drove Ditmars to Guerrero's home, discussing on the way there what they were going to do to Guerrero and what Ditmars wanted from the home. Once there, Maxwell cut some outside wires and inside telephone lines and then confronted Guerrero in his bedroom with an assault rifle, rushed him and tried to hit him with the end of the rifle. Maxwell then went through drawers and cabinets and carried items out of the house. He was present when Murphy cautioned Guerrero not to call the police and his conduct of hiding out and contacting an attorney after leaving Guerrero's house manifested his consciousness of guilt. Under the totality of these circumstances, any Doyle error related to the prosecutor's questioning of Maxwell about whether he had testified at his preliminary hearing was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18.)
Having found any constitutional error under Doyle harmless, we conclude the trial court properly denied Maxwell's request for a mistrial on such ground. On this record, Maxwell has not shown that his chance of receiving a fair trial was irreparably harmed by the court's denial. (Ayala, supra, 23 Cal.4th at p. 286.)
IV
SENTENCING ISSUES
A. Cunningham, Blakely and Apprendi
In sentencing each of the defendants, the trial court imposed an upper term for the count 1 residential robbery, citing two factors for doing so: "the victim was particularly vulnerable" and "the crime involved a taking of great monetary value." Each of the defendants separately challenges the court's imposition of the upper term for count 1, basically arguing that because the aggravated term was based on facts not found true by the jury, it violated their federal constitutional rights to a jury trial and to proof beyond a reasonable doubt as expressed in Cunningham, supra, 126 S.Ct. 856, Blakely, supra, 542 U.S. 296 and Apprendi, supra, 530 U.S. 466.
In Cunningham, supra, 126 S.Ct. 856, the United States Supreme Court determined that California's Determinate Sentencing Law (DSL), which permits a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220 (Booker). In so holding, the court in Cunningham overruled People v. Black (2005) 35 Cal.4th 1238 (Black I), stating: "Contrary to the Black [I] court's holding, our decisions from Apprendi to Booker point to the middle term specified in California's statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 127 S.Ct. at p. 871, fn. omitted.) The high court again reaffirmed Apprendi's bright-line rule, that had been reiterated in both Blakely and Booker, that "[e]xcept for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citation.]" (Cunningham, supra, 127 S.Ct. at p. 868.)
During the pendency of this appeal, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), in which it reconsidered its holding in Black I in light of the Cunningham decision, concluding that the existence of "a single aggravating circumstance" renders a defendant eligible for the upper term, thus making the upper term the "statutory maximum" in cases where at least one aggravating fact has been shown in a manner consistent with the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 813.) The court specifically stated that "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.)
In a companion case decided the same day, our Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), found, among other things, that because there were no factors in aggravation cited by the trial court in that case which satisfied the Sixth Amendment right to jury trial established under Blakely, supra, 542 U.S. 296, to make the defendant eligible for the upper term as there had been in Black II, the trial court committed error, which must then be analyzed under the Chapman "harmless beyond a reasonable doubt standard." (Sandoval, supra, 41 Cal.4th at pp. 837-838.) When the court did so in that case, it found the error prejudicial and set out the procedure for resentencing consistent with the Legislature's March 30, 2007 amendment of section 1170. (Sandoval, supra, 41 Cal.4th at pp. 843-852.)
Although the People concede that the two reasons the court used for imposing the upper terms on count 1 were not admitted by any of the defendants or found true by the jury, they assert that this court should reject the defendants' assertions of prejudicial error and affirm their sentences because the record shows that before sentencing, the court considered each defendant's probation report and the prosecutor's respective statement in aggravation which showed that each defendant had a record of numerous prior convictions of increasing seriousness and was on probation at the time of the instant crimes, recognized recidivist exceptions under Almendarez-Torres v. United States (1998)523 U.S. 224 (Almendarez-Torres) to a defendant's Sixth Amendment right to a jury trial on an aggravating fact. The People argue that these facts listed in the prior records of criminal conduct for each defendant cited in the probation report and the prosecutor's statements of aggravation made them eligible for upper terms under Black II. We disagree.
Contrary to the People's position that Black II holds that the mere existence of a prior conviction or other recidivist factor in the presentence report and in the prosecutor's statements in aggravation that the court considered before imposing sentence, renders each defendant eligible for and provides the trial court the authority to impose an upper term sentence even if the court does not rely on such factors to impose the high term, in Black II our Supreme Court was not required to confront such issue because the trial court there had cited along with other factors the defendant's prior criminal record which included both felony and misdemeanor convictions as grounds for imposing the upper term. (Black II, supra, 41 Cal.4th at p. 818.) Moreover, we believe the language in Black II strongly suggests that the trial court must have relied upon the defendant's prior criminal convictions or recidivist record, or other constitutionally firm factor, as one of its reasons for imposing an aggravated term before such renders a defendant "eligible" for an upper term sentence and "authorizes" the court to use that factor along with otherwise constitutionally infirm factors in deciding to do so. Even though the court in Black II emphasized that the right to a jury trial does not apply to the fact of a prior conviction, it did not use the plain fact that the defendant there had a number of prior convictions to conclude he was eligible for the upper term. Rather, the court pointed out several times that the defendant was eligible for an upper term sentence because the trial court had relied on those priors as part of its reasoning for imposing the aggravated term, and that the trial court's reasons for such sentencing choice would be upheld because they were supported by " 'available, appropriate, relevant evidence' [citations]" in the People's brief and in the probation report, whose recitation of the defendant's criminal history had not been challenged. (Black II, supra, 41 Cal.4th at p. 818 & fn. 7.)
Although no prior convictions were involved in Sandoval, in analyzing whether the upper term sentence there satisfied Cunningham, supra, 126 S.Ct. 856, our high court also referred to the specific factors the court cited or relied upon to impose that aggravated term. (Sandoval, supra, 41 Cal.4th at pp. 837-838.)
Here, even though the probation report for each defendant and the prosecutor's statement of aggravation for each contained several factors which the trial court could have used to impose an upper term without violating Cunningham, Blakely or Apprendi because they referred to factors relating to prior convictions (see Almendarez-Torres, supra,523 U.S. 224), the court did not mention or rely upon any of those facts as an aggravating factor for its upper term sentencing choice for count 1 for any of the defendants. We find nothing in Black II to indicate that the fact a constitutionally valid fact for aggravation, such as one or more prior convictions or other recidivist factor, is mentioned in the probation report or prosecutor's statement of aggravation without more is enough to render the defendant "eligible" for an aggravated term within the meaning of that opinion. Instead, the court in Black II stressed that the information in the probation report, as well as the prosecutor's sentencing brief, merely provided evidentiary support for the trial court's determination there that the defendant's prior criminal history constituted one of the aggravating factors, which justified the upper term in that case. As the court in Black II noted, "[o]n appellate review, [it is the] trial court's reasons for its sentencing choice" that the reviewing court examines and the evidence supporting its reasons, not other evidence that could have been used to support the sentencing choice but was not used. (Black II, supra, 41 Cal.4th at p. 818, fn. 7.)
The respective probation reports show that each defendant's prior juvenile and adult convictions are numerous or increasing in seriousness, and that each was either on formal or summary probation when the present offenses were committed.
Furthermore, under section 1170, subdivisions (b) and (c) and California Rule of Court, rule 4.406(a) and (b), in effect at the time of the sentencing in this case, the trial court was required to state on the record its reasons for imposing the upper term. Therefore, if the trial court here had intended to rely on each defendant's numerous prior convictions or other recidivist factors like being on probation at the time of the commission of the crimes to impose the upper term, it needed to state them as reasons for doing so on the record. The sheer fact that the court could have hypothetically imposed an aggravated term based on any one such factor without violating the Sixth Amendment simply does not answer the question of whether the court committed error in imposing the upper term using the reasons it actually did cite or rely upon. To reiterate, it is the reasons the trial court relied upon to impose an upper term sentence that we review on appeal to determine whether those reasons comport with the constitutional requirements under Cunningham, Blakely and Apprendi, and whether they are supported by the evidence. (Black II, supra, 41 Cal.4th at p. 818, fn. 7.) Because the trial court here improperly based its sentencing discretion to impose an upper term for count 1 for each defendant solely on facts not found by the jury, this was clearly error under Cunningham, Blakely and Apprendi. (See accord, People v. Cardenas (2007) 155 Cal.App.4th 1468, 1478-1483.)
Section 1170, subdivision (b) then stated in part that, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. . . . The court shall set forth on the record the facts and reasons for imposing the upper or lower term." Subdivision (c) of section 1170 then mandated that "[t]he court shall state the reasons for its sentence choice on the record at the time of sentencing."
Rule 4.406(a) provided in pertinent part that when the trial court is required to give reasons for a sentencing choice it must "state [on the record] in simple language the primary factor or factors that support the exercise of discretion . . . " Rule 4.406(b)(4) provided that the court is required to provide a statement of reason for "[s]electing a term other than the middle statutory term. . . ."
The question thus becomes whether the error was prejudicial. We may find the error in imposing an upper term harmless if we can say beyond a reasonable doubt that had the jurors been presented with the factors in aggravation that the court relied upon, they would have found at least one of them true beyond a reasonable doubt, thus authorizing the imposition of an upper term regardless of the validity of any of the other factors the court had relied upon to aggravate the term. (See Washington v. Recuenco (2006) 584 U.S. 212, 216-222; Sandoval, supra, 41 Cal.4th 825, 838-839.) In other words, our prejudice inquiry ends if we determine that the jury would have found at least one aggravating circumstance true thereby exposing each of the defendants to the upper term. (Ibid.)
In this case, as already noted, the trial court improperly based its sentencing discretion to impose an upper term strictly on facts not found by the jury; i.e., that the victim was particularly vulnerable and the crime involved the taking of great monetary value. The People argue that even though neither of these cited aggravating circumstances came within the recognized exceptions to a defendant's Sixth and Fourteenth Amendment jury trial rights, i.e., neither was admitted by the respective defendant, established by the jury's verdict, or fell under the Almendarez-Torres recidivist exception, the error is harmless because both factors would have been found true by the jury beyond a reasonable doubt based on uncontested or overwhelming evidence. We again disagree.
Although a jury could have found that Guerrero was "particularly vulnerable" because he was asleep when the defendants entered his house, confronted him and started taking his property, or that the crime involved a taking of "great monetary value" because the defendants took a large quantity of property from his home and garage, we cannot say beyond a reasonable doubt that it would have done so.
Regarding the first factor, particularly vulnerable has been defined as vulnerability that is of "a special or unusual degree, to an extent greater than in other cases." (People v. Smith (1979) 94 Cal.App.3d 433, 436.) In determining vulnerability, both the personal characteristics of the victim and the setting of the crime generally may be considered. (People v. Bennett (1981) 128 Cal.App.3d 354, 357-358.) However, the use of a weapon or a fact used to aggravate a crime may not be relied upon to show vulnerability when such use or fact is the basis for an enhancement or higher punishment in a case. (Id. at p. 358, fn. 1; see also People v. Piceno (1987) 195 Cal.App.3d 1353, 1357.)
Here, even though the prosecutor's statements in aggravation cited Guerrero as being "extremely vulnerable" because he was "unarmed, alone, sleeping and naked when [the defendants] attacked him with guns," and the probation reports stated that Guerrero was particularly vulnerable "in that he was sleeping in his residence and did not expect anyone to invade his home,", the trial court did not express what it found made Guerrero particularly vulnerable for the count 1 residential robbery in this case. Because the facts that Guerrero was in his home alone and that the defendants used firearms during the crime cannot be used to show vulnerability due to gun enhancements and increased punishment for the finding that the robbery was committed in an inhabited dwelling were imposed, we cannot conclude the jury would have found beyond a reasonable doubt that he was particularly vulnerable on this record. Guerrero was a healthy, 27-year old man who worked construction jobs in Arizona and California, knew all of the defendants, and had an ongoing relationship with Ditmars, who appears to have been able to come and go from Guerrero's residence as she pleased. After considering all the conflicting testimony from Guerrero, Ditmars, Maxwell, and others regarding the events that morning, the jury may have concluded that Guerrero was not any more vulnerable than other home invasion robbery victims.
As to the second factor, that the residential robbery involved a taking of "great monetary value," because such phrase has no set definition, and the jury had before it an enhancement allegation of a taking of property exceeding $50,000 within the meaning of section 12022.6, subdivision (a)(1), applicable at that time, with regard to count 13, we cannot say that the jury would have found beyond a reasonable doubt that the defendants took property of "great monetary value" from Guerrero's residence based purely on the quantity of items taken. There was no testimony from Guerrero as to the condition or value of those items like there had been with count 13 regarding the Leombrone residential burglary. Further, even though the jury found the defendants guilty of grand theft in count 6, meaning they found that the property taken from Guerrero's home was valued at more than $400, such finding does not necessarily show the jury would have additionally found that the property taken was of some undefined qualitative amount that constituted "great monetary value" based on the evidence at trial.
Although the probation reports stated that Guerrero had told the probation officer he would be seeking restitution for $15,000 worth of personal property and for property damage over $50,000, there was no evidence presented at trial or at the sentencing hearing to support such hearsay statements. Rather the defendants contested the amounts and asked for a restitution hearing on the value of property taken, which to this date has not occurred.
Under these circumstances, we simply cannot say that the jury would have found either one of the factors the trial court relied on to aggravate each of the defendants' sentences was true beyond a reasonable doubt thereby making the count 1 crime " 'distinctively worse than the ordinary.' [Citation.]" (Black II, supra, 41 Cal.4th at p. 817.)
Accordingly, each defendants' sentence on count 1 must be reversed as violative of Cunningham, Blakely and Apprendi and the matter remanded for resentencing as set forth in Sandoval, supra, 41 Cal.4th at pages 846 to 858. In addition, because there is no way to determine whether the trial court would have imposed the same sentences had it known that the facts it had found in aggravation could not properly be used to impose the upper term on count 1, we vacate the total sentence imposed for each defendant to open up the full array of discretionary choices for resentencing.
In light of our determination that the defendants must be resentenced, we need not address Murphy's additional argument that the court improperly imposed the upper term because its finding of no mitigating factors as to him regarding count 1 was inconsistent with its findings regarding counts 2 and 3 in imposing the lower concurrent terms for him. Moreover, Murphy's assertion and the People's concession that his abstract of judgment must be modified to reflect the oral pronouncement of his sentence on counts 2 and 3 is moot in light of the reversal of his total sentence. We presume the court will properly prepare a new abstract of judgment after the resentencing of each defendant that accurately reflects the new total sentence orally imposed for the respective defendant.
B. Cunningham, Blakely and Apprendi Not Applicable to Guerrero Restitution Awards
In a related contention, Murphy, joined by the other defendants, contends the victim restitution awards regarding Guerrero also violate their Sixth and Fourteenth Amendment rights to a jury trial and due process under Cunningham, Blakely and Apprendi. Although the defendants recognize People v. Harvest (2000) 84 Cal.App.4th 641, 647, 649-650 (Harvest), held that victim restitution is not a penalty but a civil remedy a court is authorized to order in a criminal matter, they argue that Harvest was wrongly decided and that the victim restitution awards are criminal penalties, which in this case were improperly imposed based on the trial court's findings, which increased the awards on facts other than the fact of a prior conviction and on a standard less than beyond a reasonable doubt. The defendants' claims have no merit.
We agree with the reasoning and holding in Harvest that victim restitution is not a criminal penalty, that it is a civil remedy enforceable as a civil judgment, and that it is limited only by the victim's claimed and proven amount of loss. (Harvest, supra, 84 Cal.App.4th at pp. 647, 649-650; § 1202.4, subds. (a)(1), (a)(3)(B), (f), (g); § 1214, subd. (b).) Because victim restitution is thus not a "penalty for a crime," it does not fall under the holdings of Cunningham, Blakely or Apprendi. (See Apprendi, supra, 530 U.S. at p. 490.)
Moreover, because the right to a jury determination of facts beyond a reasonable doubt only applies to a criminal penalty in excess of what a judge could otherwise impose based solely on the facts reflected in the jury's verdict or the defendant's admissions (Booker, supra, 543 U.S. at pp. 232-233), the defendants here could not show any constitutional violation in this case even assuming victim restitution were a criminal penalty. Aside from the fact that the defendants stipulated to the amount of victim restitution set for Guerrero's medical expenses, the only limit on the amount of restitution that a trial court may order upon a conviction is the amount of the victim's loss as section 1202.4 does not fix a maximum amount of victim restitution. In the absence of an upper limit on restitution, the defendants' invocation of Cunningham, Blakely and Apprendi is inapt. (Cf. People v. Urbano (2005) 128 Cal.App.4th 396, 405-406 [imposition of restitution fine within statutory range does not require jury findings beyond a reasonable doubt].) No violation of constitutional rights is shown in this regard.
C. Regarding Zingsheim's Comparative Sentence Claim
Although our reversal of Zingsheim's total sentence technically renders his contention moot that the trial court abused its discretion and violated California Rules of Court, which call for uniformity of sentencing, and the federal and state constitutions, which prohibit disproportionate punishment, when it sentenced him to a lengthier term than Ditmars for exercising his constitutional right to a jury trial, we briefly address several of his arguments for guidance of the trial court on remand for resentencing.
Zingsheim essentially contends that because the evidence reflects he was less culpable than Ditmars and the facts she acknowledged wrongdoing at an early stage of the process, was young and was without a significant criminal record applied equally to him, the trial court necessarily punished him for going to trial by imposing a 10 year, eight month sentence on him as compared to a four year, four month term on Ditmars. However, as the People point out in their respondent's brief, the evidence before the court revealed that Zingsheim was at least equally culpable for both the Leombrone residential burglary and the Guerrero home invasion robbery and burglary as Ditmars, and the discrepancy between their sentences can be explained by Ditmars having voluntarily acknowledged wrongdoing at an early stage of the criminal process by pleading guilty before trial commenced and Zingsheim had not. Such acknowledgement of wrongdoing at an early stage of the criminal proceedings is appropriately considered as a circumstance in mitigation for sentencing purposes. (Cal. Rules of Court, rule 4.423(b)(3).) In addition, Zingsheim's postarrest statement to the police, admitting he had gone with Baltsas the second time to take property from the Leombrones' residence, could be used by the court as a fact showing that he was more culpable than Ditmars regarding that incident.
Contrary to Zingsheim's reliance on People v. Morales (1967) 252 Cal.App.2d 537, 543-544, there is nothing in this record, like in Morales, to show or suggest that the trial court based any part of Zingsheim's sentence on his exercising his right to a jury trial. Rather, this situation is similar to that in People v. Foster (1988) 201 Cal.App.3d 20 (Foster) where the codefendants, although equally culpable of the robbery and false imprisonment crimes in that case, were sentenced to different terms because one defendant pled guilty and testified for the prosecution under an agreement, while the other was found guilty of the charges after a jury trial. (Id. at pp. 23, 26.) The defendant with the lengthier sentence (15 years, 4 months) appealed, arguing he was denied equal protection and due process and should not be sentenced to more than the four-year term his codefendant received in prison. (Id. at pp. 26-27.) The court disagreed, explaining that, "[a] sentencing court considers not only the circumstances of the crime, but circumstances individual to each defendant. [Citations.] The court and prosecution could properly consider [the codefendant's] cooperation. So long as [the defendant's] sentence was justified by [the defendant's] crimes, individual culpability, and record, the sentence received by an accomplice is not relevant." (Id. at p. 27.)
On remand, when the court considers Zingsheim's sentence anew, it should impose terms consistent with the DSL and the California Rules of Court based on the crimes for which Zingsheim was convicted, his individual culpability and the record. As in Foster, supra, 201 Cal.App.3d 20, the sentence received by Ditmars, based on a factor individual to her, is not relevant to a properly imposed sentence on Zingsheim. (Id. at p. 27.)
VI
OMISSION OF DITMARS FROM GUERRERO RESTITUTION ORDER
Finally, the defendants contend, and the People concede, that the omission of Ditmars from the Guerrero victim restitution award entitles the defendants to a new victim restitution order. The People additionally suggest that the matter should be remanded to the trial court for a new restitution hearing rather than merely issue a new order inserting Ditmars to resolve any and all issues related to restitution that must be paid to Guerrero by all defendants who have been found to be jointly and severally liable. We agree.
As the People note, at the time of Ditmars's sentencing, the trial court issued a general restitution order requiring her to pay victim restitution to Guerrero jointly and severally with codefendants Baltsas, Zingsheim, Murphy and Maxwell. When sentencing Zingsheim, Murphy and Maxwell, the court indicated that they were each jointly and severally liable with Ditmars and each other for victim restitution to Guerrero. However, at the actual restitution hearing, the court imposed a victim restitution order in the amount of $6,103.33 of medical expenses for Guerrero to be paid jointly and severally by only Maxwell, Zingsheim and Murphy. Ditmars was not present nor did her attorney appear for that hearing.
Nor has Baltsas's involvement regarding any restitution to Guerrero been clarified. As the facts show, Baltsas and Zingsheim were summoned to Guerrero's initially to pick up Ditmars and then proceeded to take items from Guerrero's garage, including his Navigator, before the second entry of the home by Ditmars, Zingsheim, Murphy and Maxwell. Any claim of property loss by Guerrero for the items taken the first time would necessarily require a separate restitution order involving Zingsheim with Ditmars and Baltsas. For these amounts, and the later takings from Guerrero's home, due process requires that all parties be before the court for such determination, with proper notice of any amount of restitution sought, and that the parties have an opportunity to contest those amounts. (§ 1202.4, subd. (f)(1); People v. Cain (2000) 82 Cal.App.4th 81, 86.)
Therefore, in the interests of justice, the victim restitution orders regarding Guerrero are vacated and the matter is remanded to the trial court to conduct a new restitution hearing to resolve any and all issues related to the restitution that must be paid to Guerrero, in addition to the stipulated amount of $6,103.33 for his medical bills by Zingsheim, Maxwell and Murphy.
DISPOSITION
Each of the defendants' convictions is affirmed. The true finding and enhancement imposed for Maxwell's prior serious felony conviction under section 667, subdivision (a)(1) is stricken. The sentence and victim restitution order regarding Guerrero imposed as to each defendant is reversed. The matter is remanded to the superior court to conduct a new sentencing hearing for each defendant and for a new restitution hearing regarding victim Guerrero consistent with the views expressed in this opinion.
WE CONCUR: HALLER, J., McINTYRE, J.