Opinion
A127801
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMIE BATISTE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 050805143)
Jamie Batiste was convicted by a jury of the first degree murder of Faith Blevins (Pen. Code, § 187), was found by the jury to have committed the murder by intentionally discharging a firearm (Pen. Code, § 12022.53), and was sentenced to 50 years to life in prison. He argues that evidentiary and instructional errors require reversal of the judgment. His principal contention is that his confession to killing Blevins was involuntary and should have been suppressed. We hold that the confession was properly admitted, reject the remaining arguments, and affirm the judgment of conviction.
I. BACKGROUND
Blevins was found murdered in her bed around 7:00 a.m. on October 16, 2007. She died from six gunshots to her head, fired from a distance of six to 12 inches. One of the shots went through a comforter on the bed before entering Blevins's temple, suggesting that she had the comforter over her head when the shot was fired. There was no evidence of a struggle, or disturbance of any property in the apartment where Blevins lived. Suspicion immediately focused on Batiste.
Blevins and her children Destiny and Isaiah shared an apartment on West 8th Street in Antioch with Patricia Lucia and Lucia's nine-year-old daughter. Blevins had previously lived with Batiste, and Batiste was paid over $13,000 in assistance by the Contra Costa Child Care Council from January to September 2007 for caring for Blevins's children. When Blevins broke up with Batiste, he received no further child care payments after September 25, 2007. Blevins told Lucia that she was afraid of Batiste because they had just gone through a "rough" breakup, and she had seen him in the neighborhood.
Blevins told Lucia the day before she was murdered that a man named Robert had approached her and said that Batiste was threatening to shoot up her house. On the morning before the murder, Blevins sent her friend Dina McMahan a text message stating that Batiste had threatened to shoot up her house with her and the children in it. She sent text messages the day before the murder to the children's father, Junior Gaines, to ask him if he could take the children because she was in danger and feared for her life. She took Isaiah to spend the night with McMahan, and Destiny went to spend the night with Gaines.
Lucia testified that Blevins went into her bedroom and closed the door around 9:00 p.m. Blevins texted Lucia at 9:34 stating, "I'm just going to pretend I left. If anyone comes in the door, tell them I got picked up already." Blevins usually kept her T.V. on, but did not that night. She texted Lucia at 9:35 stating, "it's hard not to make noise, coughing, no air or T.V., LOL, this sucks." Blevins texted McMahan between 9:00 and 10:00 p.m. and said she was laying down by herself with all the lights off. She also texted Gaines, saying, "not sure, just ain't trying to have any problems with this crazy man."
Police interviewed Veronica Stallworth, Blevins's next door neighbor, on the morning of the murder. Stallworth said that Batiste had come by her place between 10:30 and 11:45 that night with a person named Macmelli, that she had not seen Batiste for a long time, and that it was not normal for him to come over so late.
Blevins and Batiste exchanged text messages that night, which are set forth in the margin. At 3:19 a.m., after the last text message in the sequence, Batiste phoned Blevins and talked to her for a little over one minute. He then texted her for a last time at 3:33 a.m., stating, "so we not gone 2 motel 6 i'm gone 2 bed it got the twin."
The timing of the texts and testimony about the texts from Antioch Police Detective Santiago Castillo, one of the investigating officers, are noted in parentheses.
Batiste: "OK yur dude there, ha." (9:21 p.m.)
Blevins: "No I told getn picked up goin to city. Im doin my hair. U aint have the
time so fuk it." (9:23)
Batiste: "U gone yet" (10:00)
Blevins: "What u doing" (1:44 a.m.)
Batiste: "Y u not text back" (1:51)
Blevins: "U havn nice night?" (1:51)
Blevins: "Car" (1:53)
Batiste: "What car?" (1:54)
Blevins: "My friendz" (1:54)
Blevins: "What u doin?" (2:12)
Batiste: "Shit." (2:15)
Blevins: "Where u?" (2:20)
Batiste: "10st y?" (2:21; 10th Street, two blocks from Blevins' apartment)
Blevins: "What's on 10 st?" (2:22)
Batiste: "Tryn 2 get back" (2:23)
Blevins: "Get bak what" (2:25)
Batiste: "My money up" (2:25; referring to making money)
Blevins: "Oh yeah, thats coo" (2:26)
Batiste: "Were u at?" (2:26)
Blevins: "On way home by bart station" (2:27)
Blevins: "Where? Not at house so where at" (2:28)
Batiste: "Where is 4 U" (2:29)
Blevins: "Huh?" (2:30)
Batiste: "We can meet by the water" (2:31; seven or eight blocks from Blevins' apartment)
Batiste: "Where u at now" (2:37)
Blevins: "Its to cold out" (2:38)
Batiste: "Where u at doe" (2:42)
Batiste: "Can i c u" (2:44)
Batiste: "Where u at man" (2:52)
Batiste: "So i can c u ha" (2:58)
Blevins: "House. Where c me at?" (3:01)
Batiste: "Just cum 2 10 and K" (3:01; two blocks from Blevins' apartment)
Batiste: "U gone cum 2 the back" (3:03)
Batiste: "U at the house" (3:04)
Blevins: "Then what?" (3:05)
Batiste: "Can i c u" (3:06)
Blevins: "Where at? You cant b here" (3:07)
Batiste: "Cum 2 7st" (3:07; one block from Blevins' apartment)
Blevins: "Then what?" (3:08)
Blevins: "I dnt wana post up" (3:08; not wanting to hang out)
Batiste: "We not" (3:09)
Blevins: "Where we goin" (3:10)
Batiste: "2 the 6" (3:10; Motel 6)
Batiste: "R u gone" (3:13)
Batiste: "What up man" (3:16)
Batiste: "So that mean u not comn" (3:18)
Between 3:00 and 4:00 a.m., Lucia woke up when she heard a loud bang, followed by five or more gunshots in rapid succession. She thought the shots were fired from outside the apartment, but was too afraid to get up and look out the window to investigate. When she got up at 7:00 a.m. the back door to the apartment and the door to Blevins's bedroom were open. Once she saw what had happened to Blevins she called the police. It appeared to the police that the back door had been kicked in because there was a shoeprint on the door. Lucia gave the police a statement implicating Batiste, and took them to an address on West 18th Street where he had lived with Blevins.
Risa Peoples lived on West 18th across the street from Batiste and Blevins's former residence; Batiste stored belongings in a converted garage in Peoples's backyard, which was like a studio apartment. Peoples testified that Batiste came to the house shortly after 8:00 a.m. on October 16, went to the garage for about 20 minutes, and then sat on the front porch of the home making phone calls. Officers found Batiste there and took him to the police station. Peoples directed the officers to the garage in the backyard, where they found Batiste's identification, photos of Batiste and Blevins, shoes with treads on their soles consistent with the shoeprint on Blevins's apartment door, and the gun used in the murder.
Batiste was interviewed at the police station beginning around 11:45 a.m. All but 10 minutes of the questioning, which continued, with breaks, past 7:00 p.m., was videotaped or audiotaped, and the tapes were played for the jury. During the interrogation, detailed below, Batiste eventually confessed to killing Blevins, but claimed he did so in self-defense. Before confessing, he said that he spent the entire night at the home of his friend Marcos, and got a ride from Marcos's brother Jose to Peoples's place in the morning following the murder.
Police located "Marcos" (Marco Martinez), who told them that Batiste had spent the night in the company of his brother, "Freddy" (Jose Hernandez). Martinez testified that he, Hernandez and Batiste hung out in a parking lot at a housing project before midnight talking and smoking marijuana. Sometime after 11:00 p.m. he went with Hernandez to their mother's place, and then went home to his apartment. Hernandez and Batiste showed up at Martinez's apartment sometime in the early morning. Hernandez asked him if Batiste could spend the night there, and Martinez said that Batiste could stay after his girlfriend left for work at 7:00 a.m. When Martinez went to Hernandez's car to speak with Batiste, Batiste said that he needed a place to stay because he and his girl "got into it." Batiste came over around 7:00 and fell asleep. Hernandez returned and picked Batiste up around 10:30 that morning.
Antioch Police Officer Josh Vincelet spoke with Martinez at his apartment on the day of the murder. At that time, Martinez did not report Batiste saying anything about a quarrel with his girlfriend; Martinez said Batiste told him that he needed money.
Police found Hernandez at his mother's apartment and took him to the police station where he gave a statement. Detective Santiago Castillo, who took the statement, testified that Hernandez said he agreed to give Batiste a ride around 2:00 that morning. Batiste had Hernandez drive him to a house on West 18th Street. Batiste went into the house and returned with something in his pocket. Hernandez asked Batiste what was going on and Batiste said "something to the effect of, don't worry about it, I'm just packing." Hernandez asked Batiste what he was planning and Batiste again said "not to worry about it, he was just going to handle some business." Hernandez dropped Batiste off about 200 yards from Blevins's residence and drove around until he got a call from Batiste. The call was made around 3:30 a.m., after Hernandez heard gunshots. Batiste ran to the car with a gun in his hand and got inside. Hernandez asked Batiste what he had done but Batiste would not say, and Hernandez drove Batiste to Martinez's apartment. When they were near the apartment, Hernandez saw Batiste toss shell casings into a gutter; he later took police to a location where they recovered shell casings fired from the murder weapon in a storm drain.
Phone records showed that Batiste called Hernandez five times on the night of the murder; the first call was placed at 9:22 p.m., the last call at 3:24 a.m.
Batiste's fingerprints were found in Hernandez's car, and the swing arm to the murder weapon was found in the car's glove box. A gunshot residue test on Batiste was negative. But a residue test on Hernandez came back positive. Hernandez was interviewed again by Castillo after the positive test. At that time, Hernandez said that he had touched a couple of guns on the night of the murder when he, Martinez, and Batiste were hanging out in the parking lot. Martinez testified that he did not see guns being passed around, or Hernandez touching a gun, when they were in the parking lot. Hernandez testified that he had touched Batiste's gun when they were in his car on the night of the murder, but he did not mention this during his interviews with Castillo. At trial he testified that he had fired a gun the day before the murder.
Hernandez also testified that he agreed to give Batiste a ride on the night of the murder in exchange for marijuana. Both he and Martinez identified Batiste as their drug dealer. Hernandez stated that Batiste came back to the car with a gun when they stopped at Peoples's home, but Peoples's son, Durrell Anderson, told police that he slept that night in the backyard garage where the gun was found after the murder. Unlike Castillo's account of the information Hernandez provided in his first interview, Hernandez's testimony did not provide a coherent time line of events on the night of the murder. For example, he testified at trial that he saw Batiste shortly after he heard gunshots, but he testified at the preliminary hearing that he waited in the car for Batiste for one-half hour or an hour after the shots were fired.
Hernandez was given use immunity for his trial testimony. He admitted having been a Sureno gang member, and that he was arrested for discharging a firearm in a gang-related incident. He denied killing Blevins.
Blevins's ten-year-old daughter, Destiny, testified that Batiste once had a gun on a table in the backyard; Batiste's friend Mike was there at the time. Antioch Police Officer Blair Benzler testified that when she spoke with Destiny on the day of the murder, Destiny reported seeing Batiste with a gun on another occasion when the gun was near a T.V.
Hattie George, the mother of two of Batiste's children, testified that when she called Batiste on the morning of the murder about babysitting the children, he told her that Blevins had been killed and that someone had kicked in Blevins's door. The conversation could have occurred as late as 10:30 a.m. George recounted an incident when Batiste came over to her home to pick up speakers, they had words, and he pointed a gun at her. On another occasion, he flicked a cigarette at her and "walked off" because he "didn't want to hear what [she] was saying." Antioch Police Detective Marty McCann testified that George told him the gun and cigarette incidents occurred in the two days before Blevins's murder. George told McCann that she saw Batiste holding a gun, but did not mention him pointing a gun at her. Fay Jones, Batiste's cousin, testified for the defense that she went with him to pick up the speakers and that he did not have a gun that night. She had never seen Batiste with a gun and did not know that he was a drug dealer.
Police found 6.98 grams of marijuana divided into nine baggies in an open purse two feet from Blevins's head, 10.56 grams in a sack in the closet of the apartment, and 60.31 grams in a jar in a heating vent. Given the quantity and packaging of the marijuana, Officer Vincelet "couldn't say 100 percent that it would be possessed for sales," but it seemed "outside the realm of personal use." He said that what transpired in Blevins's case did not appear to be a "dope rip," i.e., a robbery for drugs, because the residence had not been ransacked.
Ronald Dabney, who allegedly told Blevins of Batiste's threats against her, testified for the defense that he did not tell her that Batiste was going to shoot up her house, or harm her or her children. He never heard Batiste threaten Blevins or her children, and never saw Batiste, who was his drug dealer, with a gun. He denied telling police that Batiste was angry that Blevins had a new boyfriend. He did tell them that Batiste and Blevins "had really been going through it with their relationship."
The prosecution argued to the jury that Batiste murdered Blevins during the interval between his 3:19 a.m. call to her and his 3:24 a.m. call to Hernandez on the night in question. The defense maintained that Hernandez killed Blevins to obtain marijuana. The prosecution submitted that, even if Hernandez were the killer, Batiste would be guilty of murdering Blevins under theories of aiding and abetting, or felony murder during the course of a burglary.
Presentation of evidence and argument in the case took approximately six full court days, and the jury deliberated for approximately 14 hours before rendering its verdicts.
II. DISCUSSION
A. Whether the Confession Should Have Been Suppressed
1. Batiste's Motion and the Applicable Legal Standards
Batiste moved to exclude his confession to Blevins's killing on the ground that it was involuntary. After reviewing the audio and video recordings of Batiste's interrogation, the court denied the motion. Batiste contends that the court erred when it ruled his confession was admissible.
Admission of an involuntary confession as evidence violates a defendant's state and federal rights to due process. (In re Shawn D. (1993) 20 Cal.App.4th 200, 208.) A confession is involuntary when, in light of the totality of the circumstances, the defendant's choice to confess "was not 'essentially free' because his will was overborne." (People v. Memro (1995) 11 Cal.4th 786, 827.) The confession or admission must be shown to be voluntary by a preponderance of the evidence. (People v. Markham (1989) 49 Cal.3d 63, 71.) The issue is determined on the record as a whole, taking into account the character of the accused and the details of the interrogation. (People v. Vasila (1995) 38 Cal.App.4th 865, 873.) Whether a confession was voluntary is subject to our independent review. (Ibid.)
2. Record
Detective McCann took the lead in the interrogation. The first phase of questioning, with Detective Castillo also present, began around 11:45 a.m. and ended before 4:00 p.m. All but the last 10 minutes of this phase of the interview were videotaped; these tapes were not transcribed. There were breaks in the questioning from 12:34 to 12:51, 1:35 to 1:47, and 2:38 to 3:01 p.m. Before the 12:34 break, the officers asked Batiste whether he wanted water or was hungry; he asked for water and the officers brought him a bottle of water when the interview resumed at 12:51. Before the questioning at 3:01 began, the officers asked him if he wanted water or a candy bar, gave him another water bottle, and apologized for poor air conditioning in the room.
During this first phase of the interview, Batiste maintained his innocence. He said that he and Blevins had a 10-month relationship and that he had not seen her during the month since they broke up. He texted Blevins on the night of the murder for money to stay at Motel 6, but spent the entire night at the home of his friend Marcos. Blevins's next door neighbor Stallworth was wrong to say that she had seen Batiste in Blevins's neighborhood. He woke up around 10:20 a.m. and Hernandez drove him to Peoples's home.
The officers periodically yelled at Batiste, accused him of lying, and told him they knew everything that had transpired. He eventually admitted that he went to the parking lot behind Blevins's apartment for 10 minutes around 11:30 p.m. to purchase marijuana; Stallworth brought him a baggie. After the officers told him other details, including that a gun had been recovered on 18th Street and that multiple people had seen him running from Blevins's apartment, Batiste offered to take a lie detector test. He said that he did not own a gun, and that his fingerprints would not be on the gun the police had found. He denied kicking down Blevins's door. At one point, after the officers and Batiste yelled at each other and Castillo left the room, McCann suggested there was animosity between he and Batiste, which Batiste denied.
Toward the end of the first phase of the interview, it appears that Batiste became emotional and may have cried for a couple of minutes. He said that people had threatened him and that he had not threatened Blevins. The tape of this first phase ended at approximately 3:30 p.m., and the questioning in that phase continued for another 10 minutes thereafter. McCann testified that he was not sure why the tape stopped, and that nothing significant was said during the unrecorded time. He only recalled Batiste insisting that Blevins was not afraid of him.
McCann called Mike Schneider to administer a polygraph test to Batiste, and told Schneider that he thought Batiste was withholding information. Schneider retired as senior homicide investigator for the Antioch Police Department, and taught a college course on interrogation. Schneider conducted a pre-test interview with Batiste beginning at 5:10 p.m., and spoke to him for 50 minutes trying to establish a rapport. The interview was audiotaped and transcribed; the recording was poor and many parts of the transcript are labeled "unintelligible."
Schneider told Batiste "if there is any doubt in your mind, be careful" about taking the polygraph test. Batiste asked if he would be released if he passed the test; an officer came to the room and said, "I can't give the answer right now. We got Marcos here now." Batiste told Schneider that Marcos would vouch for him. Schneider told Batiste, "I think you keep going where you going, they aren't going to have no mercy. . . . [¶] They going to say he was pissed because she was playing with some other dude." The following exchange ensued: "A. It is hard to put myself over there though. Q. Shit they already got you there. . . . They may be bull shitting, they may not be bullshitting. But I'm not. A. They can't bull shit a bull shitter. [¶] . . . I'll take this here and pass the mother fucker and they're going to let me out. Q. You - you ain't going to pass . . . . You know you're not going to pass. A. What, this here one? Q. Yeah, I've done 100 of these in fucking three weeks man. . . . A. Tell them to come take me back to my little cell so I can lay down man." Schneider testified that, when he told Batiste that he would not pass the polygraph test, Batiste "nodded, and hung his head."
Despite this last statement, Batiste did not express any objection to further questioning when the interview resumed.
--------
Schneider told McCann that he thought he was close to getting a confession, and suggested that he remain in the room when McCann resumed the questioning. The last phase of the interview began at 6:33 p.m. and lasted less than an hour; all of it was audiotaped and transcribed, and all but the last 10 minutes were videotaped.
McCann began by telling Batiste that Marcos denied that Batiste had spent the night at his apartment. Schneider then said, "What if this was like a self defense thing? [¶] . . . That would change everything right? [¶] . . . That would change the whole complexion, wouldn't it?" McCann agreed that would "definitely . . . be in [Batiste's] favor," and Schneider added, "I'm not putting words in the man's mouth. I'm just asking. You know, I'm just asking." The interrogators said they had heard that Blevins was "controlling," and had a "violent temper." Batiste acknowledged that Blevins tried to be controlling, and took Prozac because she was violent. When McCann said that Blevins's temper and medication might "put things in a different light," Batiste said that Blevins was close to men who were shooting at him and had tried to set him up. Schneider said, "She's just as dangerous as they are," and Batiste replied, "Yeah so it's . . . you or me."
Shortly before confessing, Batiste protested to McCann that Castillo had "hollered" at him earlier in the interview, but acknowledged "everybody got a job to do." McCann apologized and said, "Usually people feel comfortable with me." Batiste replied, "Yeah. Like now I'm hella comfortable."
Batiste said that he went to Blevins's apartment carrying a gun he obtained a month or two earlier after being robbed in a drug deal, and hearing that people were trying to kill him and that Blevins was trying to set him up. She let him in the back door and he followed her to her bedroom where she lay down on the bed. He heard a squeaky noise in the house and did not know who else was there. When he saw Blevins's hand come up something flashed that appeared to be a knife, and he shot her three or four times in the chest and stomach. He "shot out of fear," and "just broke." He described a prior incident when he woke up and Blevins was standing over him with a large butcher knife. He had told her, "You stab me with that knife I'm going to beat the shit up out of you."
3. Analysis
Batiste contends that his confession was coerced because it was the product of deception or implied promises of leniency by the officers. Promises of benefit or leniency can render a confession involuntary when they are the "motivating cause" of the defendant's admissions. (People v. Williams (1997) 16 Cal.4th 635, 661; see People v. Cahill (1994) 22 Cal.App.4th 296, 316 [promises were "dominant focus" of the interrogation].) While deception is a factor that can weigh against a finding of voluntariness (People v. Thompson (1990) 50 Cal.3d 134, 167), a confession obtained through deception is admissible unless the subterfuge is likely to produce an untrue statement (People v. Felix (1977) 72 Cal.App.3d 879, 886).
Batiste argued in the trial court that the officers made an implied promise of leniency when they suggested he might have acted in self-defense. That argument lacked merit. Here, as in People v. Carrington (2009) 47 Cal.4th 145, 171, "suggestions that the . . . homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime. This tactic is permissible. [Citation.] Moreover, any benefit to defendant that reasonably could be inferred from the substance of [the officer's] remarks was ' " 'merely that which flows naturally from a truthful and honest course of conduct,' " ' because the particular circumstances of a homicide can reduce the degree of culpability, and thus minimize the gravity of the homicide or constitute mitigating factors in the ultimate decision as to the appropriate penalty. [Citation]." The trial court was troubled by the suggestion of self-defense, and in light of the fact of this crime, six shots to the victim's head at close range, so are we. But there was no express promise of leniency and no suggestion by the officers that Batiste in fact must have acted in self-defense.
Batiste observed in the trial court and in this appeal that the officers repeatedly lied to him about evidence of his guilt, but exaggeration of the incriminating evidence was not coercive because it was unlikely to produce a false admission. (See People v. Chutan (1999) 72 Cal.App.4th 1276, 1280-1281 [citing numerous cases].) He also said that the officers yelled at him a number of times in the first phase of the interview, but "harsh questioning" does not necessarily "rise to the level of psychological coercion." (People v. Boyde (1988) 46 Cal.3d 212, 242; see In re Joe R. (1980) 27 Cal.3d 496, 515 ["loud, aggressive accusations of lying" did not "amount[] to coercive threats"].) Batiste said that he felt no animosity toward the officers after a particularly heated exchange, and later remarked, as to the contentious periods of the interview, "everybody got a job to do." Batiste described himself as "hella comfortable" immediately before confessing. In viewing the interrogation and listening to the exchange between Batiste and his interrogators, we are confident Batiste held his own and his will was not overcome by the circumstances.
Batiste contends that the length and physical conditions of the interrogation were coercive because he was "subjected to repeated and unrelenting questioning" for seven hours in a small, sweltering room. However, there were periodic breaks in the interrogation, including an hour and a half between the end of the first phase of the questioning and the beginning of the interview with Schneider. The interrogation was not conducted in the middle of the night; it extended from about noon to 7:00 p.m. The officers asked Batiste if he was hungry or thirsty, and gave him water when he requested it. He did not complain that the room was too warm. He was "not worn down by a lengthy interrogation or deprived of human comforts or necessities. . . . He did not complain about a lack of sleep or food, or suffer any physical ailments." (People v. DePriest (2007) 42 Cal.4th 1, 35.) The length and conditions of the interrogation did not render it coercive.
The officers confirmed that Batiste understood his rights under Miranda v. Arizona (1966) 384 U.S. 436, Batiste freely chose to answer the officers' questions, and he never asked for the interview to stop. A preponderance of the evidence establishes that Batiste's confession was voluntary. Based on the totality of the circumstances appearing in the record, we conclude that the motion to exclude it was properly denied.
B. Accomplice Instructions
Batiste contends that the court erred by failing to instruct the jury pursuant to either CALCRIM No. 334 ("Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice") or CALCRIM No. 335 ("Accomplice Testimony: No Dispute Whether Witness Is Accomplice") with respect to Hernandez's testimony. Even though defense counsel did not request such an instruction, Batiste contends that the court had a duty to furnish it sua sponte. The instruction Batiste now advocates would have advised that Hernandez's testimony incriminating him "should be viewed with caution," and required independent corroborating evidence "connect[ing Batiste] to the commission of the crime." (CALCRIM Nos. 334 & 335.)
"The court need give such instructions only where there is substantial evidence that the witness was an accomplice. [Citations.] 'An accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant' [citation] and does not include an accessory [citations]. 'An accomplice must have " 'guilty knowledge and intent with regard to the commission of the crime.' " [Citation].' " (People v. Boyer (2006) 38 Cal.4th 412, 466-467.)
Given Hernandez's knowledge that Batiste was a drug dealer, his awareness that Batiste had obtained a gun and was going to "handle some business," Batiste claims that Hernandez must have known that Batiste was "planning some type of assault with a firearm." Batiste reasons that because homicide is a reasonably foreseeable consequence of assault with a firearm (e.g. People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1176-1177), Hernandez could have been prosecuted for murder as a coconspirator or aider and abettor (People v. Hayes (1999) 21 Cal.4th 1211, 1271 (Hayes) [accomplice status may be established under the foreseeable consequence theory of liability]).
The specific knowledge Batiste seeks to attribute to Hernandez is too speculative. While Hernandez could well have surmised that Batiste's "business" would involve drugs, there was no evidence that such "business" would include criminal assaults, that Hernandez was aware that Batiste had a tendency toward assaultive behavior, or that he was likely to assault someone that night. According to Hernandez's trial testimony and statements to the police, he had seen Blevins a few times but did not know her. Nothing suggests that he knew he was letting Batiste out of the car near the home of an estranged former girlfriend, or that he intended to assist Batiste in assaulting her or anyone else. The evidence showed that Hernandez helped Batiste to escape from a crime scene, but aiding Batiste's escape did not make Hernandez an accomplice in the shooting. (People v. Hoover (1974) 12 Cal.3d 875, 879 ["aiding in the escape of a principal does not result in liability as a principal, but only as an accessory"].) Substantial evidence for accomplice instructions was lacking here.
Even if CALCRIM No. 334 was required, Batiste was not prejudiced by its omission. An error of this nature "is harmless if there is sufficient corroborating evidence. Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense." (Hayes, supra, 21 Cal.4th at p. 1271.) A great deal of evidence independent of Hernandez's testimony connected Batiste to Blevins's killing, including most notably his admission. Other evidence showed that Batiste had threatened Blevins and that she was afraid he would harm her and her children. The gun used in the murder and shoes with tread consistent with the footprint on Blevins's apartment door were found with Batiste's property. Batiste's fingerprints were found in Hernandez's car, and shell casings fired from the murder weapon were located where Hernandez said Batiste had discarded them. If there was any error in failing to give accomplice instructions, it was harmless.
C. Evidence of Batiste's Threat and Blevins's Fear
The court denied Batiste's motion to prevent introduction of Blevins's statements and text messages indicating that Batiste had threatened her and that she feared him. Batiste argues that this evidence should have been excluded as irrelevant or unduly prejudicial, but the evidence was relevant and its admission was not an abuse of discretion.
Blevins's text messages concerning Batiste's threat and her fear were admissible under Evidence Code section 1370, which provides in part: "(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. (2) The declarant is unavailable as a witness pursuant to Section 240. (3) The statement was made at or near the time of the infliction or threat of physical injury. . . . (4) The statement was made under circumstances that would indicate its trustworthiness. (5) The statement was made in writing . . . ." Blevins's oral statements of her fear of Batiste and his threat were admissible under Evidence Code section 1250, which provides in part: "(a) . . . [E]vidence of a statement of the declarant's then existing state of mind . . . is not made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the declarant's state of mind . . . when it is itself an issue in the action; or (2) The evidence is offered to prove or explain acts or conduct of the declarant."
Batiste contends that the state of mind exception to the hearsay rule does not warrant admission of the evidence in this case because Blevins's state of mind was not at issue. (People v. Ruiz (1988) 44 Cal.3d 589, 609 [victim's expressions of fear inadmissible to prove the defendant's conduct or state of mind; otherwise, such statements "could be routinely admitted to show that the defendant had a motive to injure or kill"]; People v. Hernandez (2003) 30 Cal.4th 835, 872 (Hernandez) [victim's expressed fear is inadmissible to prove killer's identity].) However, a murder victim's fear of the alleged killer may "be in issue when, according to the defendant, the victim has behaved in a manner inconsistent with that fear." (Hernandez, supra, 30 Cal.4th at p. 872.) "For example, where the defendant claims self defense . . . statements by the victim showing his fear of the defendant may be admitted to show that the victim would not likely have been an aggressor against the defendant . . . ." (People v. Garcia (1986) 178 Cal.App.3d 814, 822.) Batiste put Blevins's state of mind at issue by claiming in his statement to the police that he killed Blevins in self-defense.
When admission of the evidence was discussed in the trial court, Batiste informed the court that he would not be relying on a self-defense theory. He submits that his Evidence Code section 352 objection should have been sustained because "self-defense was not a real issue at trial." But it was. The tape of Batiste's confession was played to the jury. " 'The trial court is vested with broad discretion in determining the admissibility of evidence. [Citation.] This is particularly true where, as here, underlying that determination are questions of relevancy, the state of mind exception to the hearsay rule, and undue prejudice." (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103.) We find no abuse of the court's broad discretion in the matter.
D. Other Crimes Evidence
Batiste argues that the court improperly and prejudicially solicited "other crimes" evidence when it questioned Hattie George. In direct and cross-examination, George testified to: an incident when Batiste came over to pick up speakers, they "had words" and he pointed a gun at her; and an incident when he flicked a cigarette at her. The court then asked George questions submitted by the jury, which solicited additional details about the incidents. In response to those questions, George stated that Batiste pointed the gun at her when they had an argument about who owned the speakers, and that she had felt threatened when he did so. As for the cigarette incident, the court's questions and George's answers were: "[Q.] With regard to the cigarette, what happened there? Why was he flicking the cigarette at you? [A.] He came to bring diapers, and he was in the car, and as he walked off, he flicked a cigarette at me. [Q.] Kind of like in anger? [A.] He was just, like, you know—didn't want to hear what I was saying."
The People contend that Batiste forfeited his challenge to the court's questions because he did not object when the questions were asked. Batiste contends that the challenge was preserved through his unopposed motion in limine, which the court granted, to exclude evidence of any alleged prior criminal acts on his part. We need not decide whether the point was forfeited because the admission of this evidence was neither error nor prejudicial.
"[O]f course, the trial court may question a witness in order to elicit additional information or clarify confusing testimony." (People v. Sanders (1995) 11 Cal.4th 475, 531 (Sanders); see also People v. Hawkins (1995) 10 Cal.4th 920, 947-948 [court may examine witnesses to clarify testimony or cover omissions], disapproved on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.) As in Sanders, the questions here "were brief, fair and nonargumentative. They did not suggest a lack of neutrality or unfairly comment on the evidence." (Sanders, supra, 11 Cal.4th at p. 532.) No judicial bias was implicit because the questions came from the jurors, not the court.
Moreover, the questions did not produce anything significant. The questioning revealed that George felt threatened when Batiste pointed the gun at her, but otherwise merely elicited context for his assaultive behavior. George's natural reaction to having a gun aimed at her could not conceivably have affected the outcome of the case. Thus, any error in connection with the evidence was harmless under any standard.
E. Instruction on Dissuading a Witness from Testifying
As noted above, Blevins's next door neighbor, Veronica Stallworth, told police that Batiste and a person named Macmelli visited her between 10:30 and 11:45 on the night of the murder, she had not seen Batiste for a long time, and it was unusual for him to come over that late. At trial, however, Stallworth denied telling police that Batiste had not been over for a long time, or that his late visit was unusual. The prosecution then elicited testimony from Stallworth that she had filed a police report in March 2008 stating that Macmelli had threatened to shoot up her house. Macmelli had seen her returning from the police station in the backseat of a police car, and must have thought she was a snitch. She had applied for "witness relocation" because of her fear of Macmelli.
Batiste contends that, in light of Stallworth's testimony about Macmelli, the court was required sua sponte to instruct the jury that a third party's attempt to dissuade a witness from testifying cannot be used against a defendant to establish consciousness of guilt unless the defendant authorized the attempt. (See CALJIC No. 2.05 [defendant must authorize effort to procure false evidence; even if defendant authorized the effort, such conduct is not sufficient by itself to prove guilt]; CALCRIM No. 371 [defendant must authorize attempt to conceal evidence; such conduct cannot by itself prove guilt].) This argument is untenable. (People v. Najera (2008) 43 Cal.4th 1132, 1139 [no duty to instruct sua sponte that "a fact or cluster of facts is not, without more, substantial evidence of guilt," citing CALJIC No. 2.05 as an example]; Bench Notes to CALCRIM No. 371 [no duty to give this instruction sua sponte].)
Batiste maintains that his counsel was incompetent for failing to request an instruction on dissuading a witness and consciousness of guilt. When the record on appeal sheds no light on the reason for counsel's failure to act, we must affirm the judgment unless there could be no " 'satisfactory explanation' " or "rational tactical purpose" for the omission. (People v. Haskett (1990) 52 Cal.3d 210, 248; People v. Fosselman (1983) 33 Cal.3d 572, 581.) Defense counsel here could have reasonably decided to forego consciousness of guilt instructions to avoid any focus on the threat Stallworth reported or any implication that Batiste was involved with it.
III. DISPOSITION
The judgment is affirmed.
Siggins, J. We concur: Pollak, Acting P.J. Jenkins, J.