Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF116813. Douglas E. Weathers, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez and Barry Carlton, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
RICHLI J.
A jury convicted defendant of willful cruelty to animals (Pen. Code, § 597, subd. (a)) (count 1), with personal use of a handgun (§§ 1192.7, subd. (c)(8), 12022.5, subd. (a)). The jury also found defendant guilty of being a felon in possession of a firearm (§ 12021, subd. (a)(1)) (count 2). Defendant thereafter admitted that he had suffered two prior prison terms (§667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) He was sentenced to a total term of 18 years in state prison: the upper term of three years on count 1, doubled to six years for the prior strike allegation, plus a consecutive upper term of 10 years for the gun-use enhancement, plus two consecutive one-year terms for the two prior prison term enhancements, and a concurrent term of one year four months on count 2.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) the trial court relied on improper factors in aggravation to impose the upper term on count 1 and the gun-use enhancement; (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868, 166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 1 and the upper term on the gun-use enhancement; and (3) the trial court erred in failing to give defendant’s requested jury instruction regarding the prosecution’s failure to disclose specific testimony of witness Sandra Nunez.
Initially, we found that defendant’s upper term sentence on count 1 ran afoul of Cunningham; we vacated defendant’s sentence and remanded the matter to the trial court for further proceedings. The California Supreme Court thereafter issued opinions in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) and People v. Black (2007) 41 Cal.4th 799 (Black II) and directed this court to vacate our May 10, 2007, opinion and to reconsider defendant’s appeal in light of those cases. Following an examination of those cases, we reject defendant’s claims that his upper term sentence violates Cunningham and find any error to be harmless beyond a reasonable doubt. We also reject defendant’s remaining contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In May 2004, defendant lived at 1054 Beverly Road in Corona. There were two houses on the property. Defendant lived in the front house with a woman (possibly his girlfriend or wife) named Gabriela and several children. Among the children who testified were Lucy, Martin, Blanca. Several relatives of Gabriela, including Yuliana and Ernesto Murillo, their mother, and their uncle Emmanuel Felix, lived in the back house. Martin and Lucy (of the front house) and Yuliana and Ernesto (of the back house) were all cousins; Blanca (of the front house), Lucy, and Martin were siblings, but Blanca was not related to Yuliana and Ernesto. Defendant appeared to have been relatively new to this complex.
On May 8, 2004, Yuliana owned a German shepherd named Camila. By all accounts, the dog was not a problem; the children played with her, and she was not known to chase or bite anyone.
On the afternoon of May 8, 2004, Yuliana was about to take a shower when she heard a number of gunshots. She called 911 within two or three minutes of hearing the gunshots. She was told by her younger brother, Ernesto, that defendant had shot the dog.
Shortly before the shooting, 14-year-old Ernesto had seen defendant in the courtyard. He saw something black in defendant’s hand but did not know exactly what it was. He heard three to four gunshots shortly after seeing defendant.
Emmanuel Felix was in the living room of the back house watching a movie with Ernesto, Ernesto’s mother, and Ernesto’s younger sister when he also heard gunshots. Emmanuel looked out the window and saw defendant, who was one to three feet away from the dog, turn and walk away. Emmanuel noted defendant had something black in his hand, which he put in his jacket. Emmanuel tried to keep Ernesto from looking out the window.
Lucy, Martin, and Blanca heard three to four shots, then saw defendant in the yard. They also heard the dog yelping and crying and “knew,” without looking, that defendant had shot the dog. On the day of the shooting, Lucy heard defendant say he would “deal with the dog later.” Blanca also remembered defendant looking toward the dog earlier that day and stating, “I’ll deal with you later.” She also recalled that, about three days before, defendant had said that he did not like the dog and that it had to go. Martin also recalled that on the day of the shooting defendant looked toward the dog and stated, “I’ll deal with you later,” and he remembered defendant stating two to three weeks before the shooting that he was going to shoot the dog.
After hearing the gunshots, Blanca, Martin, and Lucy looked out the window. They saw defendant in the yard with a black bag over something in his hand, pointing the object at the dog. The dog, tied to a post, was running in circles and “going crazy.” Defendant had apparently left for work, returned, and shot the dog.
Sandra Nunez, who lived across the street, was having a barbeque with family members in her backyard when she heard three or four gunshots. She walked out in front of her house to investigate and saw defendant driving away in a dark colored van, which was identified as Gabriela’s. Nunez noted that the van had been parked right in front of the fence; defendant normally parked the van in the driveway. She also pointed out that defendant was driving faster than usual. After defendant left, the kids from the house came out crying and yelling that the dog had been shot.
Responding police officers found the dog lying dead, tethered to a pole, in a bloody circle the radius of the tether. They also found four spent 9-millimeter cartridges in the yard. Defendant was later apprehended at his place of employment.
The parties stipulated that defendant had a previous felony conviction.
Defendant claimed he had an alibi and that he did not shoot the dog. His coworker testified that he had been talking to defendant on his cellular telephone at the approximate time of the shooting and that he had asked defendant to pick up additional supplies for work. Defendant’s trial counsel also argued that the children all hated defendant and made up the story.
II
DISCUSSION
A. Imposition of Upper Terms on Count 1 and the Gun-Use Enhancement
Upon the prosecutor’s request for clarification, at sentencing, the trial court clarified that it was imposing the upper term of three years on count 1based on three aggravating factors: (1) the high degree of cruelty, (2) the fact defendant used a gun in the commission of the crime, and (3) that the crime was carried out in a manner that indicated planning. With respect to the gun-use enhancement, the trial court selected the upper term based on the following factors in aggravation: (1) defendant’s past violent conduct indicating a danger to society, (2) defendant’s numerous convictions as an adult, and (3) the fact defendant was on parole at the time the offense was committed. The court found no factors in mitigation. Relying on Blakely and Apprendi, defendant contends the upper term sentence on count 1 violates his Sixth Amendment rights because the sentence was based on aggravating factors not reflected in the jury verdict or admitted by defendant. He also argues that imposition of the upper term on the gun-use enhancement was improper because the enhancement was not supported by adequate reasons and violated his Sixth Amendment rights under Blakely and Apprendi. The People argue that defendant forfeited these claims by not objecting at the sentencing hearing.
On June 20, 2005, some eight months before defendant’s sentencing hearing in this case, our state Supreme Court concluded that the imposition of an upper term sentence, as provided under California law, was constitutional and does not implicate a defendant’s Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I).) At that time, the trial court was compelled to follow Black. Therefore, it would have been futile for defense counsel to object at sentencing based on Blakely, Apprendi, or the United States Constitution. Under these circumstances, defendant’s Blakely challenge was not forfeited. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; People v. Turner (1990) 50 Cal.3d 668, 703-704.)
Under California’s determinate sentencing law (DSL), where a penal statute provides for three possible prison terms for a particular offense, the sentencing court is required to impose the middle term unless it finds, by a preponderance of the evidence, that “there are circumstances in aggravation or mitigation of the crime.” (§ 1170, subd. (b); see also Cal. Rules of Court, rule 4.420(a) & (b).) “Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation.” (Rule 4.420(b).) “Generally, determination of the appropriate term is within the trial court’s broad discretion . . . .” (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) “A single aggravating factor is sufficient to impose an aggravated upper prison term where the aggravating factor outweighs the cumulative effect of all mitigating factors . . . .” (People v. Nevill (1985) 167 Cal.App.3d 198, 202.) The sentencing court need not list all applicable aggravating factors (ibid.) or state reasons for rejecting mitigating factors (People v. Combs (1986) 184 Cal.App.3d 508, 511).
All further rule references are to the California Rules of Court. Rule 4.420 provides in part: “(a) When a sentence of imprisonment is imposed, or the execution of a sentence of imprisonment is ordered suspended, the sentencing judge shall select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170[, subdivision ](b) and these rules. The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation. [¶] (b) Circumstances in aggravation and mitigation must be established by a preponderance of the evidence.”
In Cunningham, the United States Supreme Court overruled Black I and held that the middle term in California’s DSL was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, supra,127 S.Ct. at p. 868.) The court noted that California’s DSL, by placing sentence-elevating factfinding within the trial judge’s province, violates a criminal defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, at p. 860.) Cunningham explained that because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the DSL violates the bright-line rule in Apprendi and that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Cunningham, at p. 868.) Quoting Blakely, supra, 542 U.S. at pages 303 and 304 for the proposition that “‘the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,’” the Cunningham court concluded that “[i]n accord with Blakely, therefore, the middle term prescribed in California statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, at p. 868.)
However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (Almendarez-Torres) and affirmed in Apprendi: “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488 & 490.) The court explained California’s determinate sentencing law violates Apprendi’s bright-line rule: “Except 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, at p. 868.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
Almendarez-Torres clarified: “[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. [Citations.] . . . [T]o hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘going to the punishment only.’ [Citation.]” (Almendarez-Torres, supra, 523 U.S. at pp. 243-244.)
Our Supreme Court recently decided Black II, supra, 41 Cal.4th 799 following the United States Supreme Court’s remand of Black I for reconsideration in light of Cunningham. In Black II, the court recognized that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (Black II, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728 and § 1170, subd. (b).) Accordingly, the court in Black II held that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, at p. 812.) “[A]ny additional factfinding 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, at p 812.)
An aggravating circumstance is one that “makes the offense ‘distinctively worse than the ordinary.’ [Citations.]” (Black II, supra, 41 Cal.4th at p. 817.) Accordingly, aggravating circumstances include not only those listed in rule 4.421, but also “[a]ny other facts statutorily declared to be circumstances in aggravation,” (rule 4.421(c)) and any other facts “reasonably related to the decision being made” (rule 4.408(a)).
The court in Black II explained, “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at pp. 815-816, italics added.)
Here, although the court could have relied on factors in aggravation that satisfy the Sixth Amendment requirements, the court in imposing the upper term of three years on count 1 relied on nonrecidivist factors. In response to the prosecutor’s inquiry for clarification, as aggravating factors, the court found (1) the high degree of cruelty, (2) the fact defendant used a gun in the commission of the crime, and (3) that the crime was carried out in a manner that indicated planning. However, these aggravating factors were not established by the jury’s verdict or admitted by defendant. Nonetheless, though the trial court explicitly stated that it relied on the above-mentioned factors unrelated to recidivism in imposing the upper term on count 1, the trial court had previously noted defendant’s recidivism in imposing the upper term sentence both on count 1 and the gun-use enhancement. Hence, the trial court expressly observed during the sentencing proceedings that defendant had numerous and serious prior convictions as an adult, that defendant was on parole when the crime was committed, and that defendant’s prior performance on parole was unsatisfactory. (See Black II, supra, 41 Cal.4th at pp. 818-820.) Also, apart from the trial court’s findings, it is the existence in the record of substantial evidence supporting the existence of recidivism that allows judicial fact-finding, not the fact-finding itself, that determines whether there has been a violation of the federal Constitution. (See id. at pp. 814-816.) The trial court’s determination that defendant had numerous prior serious convictions, that defendant was on parole when the offenses were committed, and that defendant’s prior performance on parole was unsatisfactory are the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Id. at pp. 819-820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Once the trial court made this determination, defendant was eligible for the upper term, which became the statutory maximum. (Black II, at p. 816.) The trial court’s finding of additional facts that supported its discretionary choice of the upper term thus did not violate defendant’s right to trial by jury. (See id. at pp. 816, 820.)
The issue of whether a trial court can constitutionally impose an upper term based on the fact that the defendant was on parole when the crime was committed, without a jury determination, is currently before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.
Defendant’s purported claims that the trial court relied on improper factors in aggravation in imposing the upper term and that the court violated the state law prohibition against the dual use of facts is waived. (People v. Scott (1994) 9 Cal.4th 331, 349-350, 356.) At sentencing, defendant did not object to the court’s stated reasons for imposing the upper term. Had he objected, the court could have responded appropriately.
In any event, defendant’s contention fails on the merits. Though defendant is correct in that it is improper to use the same fact both to aggravate a sentence and to impose an enhancement (§ 1170, subd. (b)), “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 factfinding 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.) Here, defendant had a prior criminal record which included three felony convictions, one misdemeanor conviction, three prior prison terms, and six parole violations. Even accepting that the court relied on improper factors and improperly relied on defendant’s use of the gun in the commission of the crime to impose the upper term on count 1, the trial court still had before it defendant’s recidivism. Therefore, the trial court had before it at least a single aggravating factor for which imposition of the upper term was proper.
Furthermore, any error with respect to the trial court’s statement of reasons is harmless. “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.) Likewise, “‘[i]mproper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.’” [Citation.]” (People v. Osband, supra, 13 Cal.4th at p. 728.) The court found at least six aggravating factors and found no mitigating factors. Therefore, even without the improper factors, it is not reasonably probable that the court would select anything other than the aggravated term. (See ibid. [error invalidating several aggravating factors did not require remand for resentencing where three aggravating factors were valid and court found no factors in mitigation].) In other words, the court could have relied on defendant’s dismal performance on parole to impose the upper term on count 1 and defendant’s prior convictions (excluding the prior strike) and the prior prison term not used for enhancement purposes to impose the upper term on the gun-use enhancement so as to prevent the state-law prohibition against dual use of facts.
With respect to the gun-use enhancement, we also note that Cunningham, Blakely, and Apprendi do not apply to sentence enhancements found true by a jury. California has numerous sentencing enhancements that may increase a defendant’s sentence beyond the three-tier range defined by statute, such as the use of a firearm during the commission of a crime. (See, e.g., § 12022.53.) Enhancements are required to be charged separately and proved to a jury beyond a reasonable doubt, or admitted by the defendant, thus complying with the mandates of Apprendi and Blakely. (See, e.g., §§ 1170.1, subd. (e), 12022.53, subd. (j).) The gun-use enhancement here was imposed upon the jury’s finding that the enhancement allegation was true beyond a reasonable doubt.
We note Apprendi did not cause significant concerns for California’s determinate sentencing scheme because in California enhancements are pled separately and found by the trier of fact beyond a reasonable doubt.
The United States Constitution does not mandate a jury trial on prior convictions, and any right to a jury trial would be purely statutory. (Apprendi, supra, 530 U.S. at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see § 1025.) By statute in California, a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in the accusatory pleading as statutory sentence enhancements. (§ 1025; Epps, at pp. 29-30.) Prior convictions considered as aggravating factors for the purpose of imposing the upper term may be determined by the court upon facts shown in the probation report, as the trial court did here, and need be established only by a preponderance of the evidence. (§ 1170, subd. (b); rule 4.420(b).)
The United States Supreme Court has affirmatively indicated a trial court’s exercise of sentencing discretion does not raise a federal constitutional question. In reviewing the Federal Sentencing Guidelines, the court stated: “If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” (U.S. v. Booker (2005) 543 U.S. 220, 233 [125 S.Ct. 738, 160 L.Ed.2d 621]; see also Apprendi, supra, 530 U.S. at p. 481.) It therefore appears imposition of the upper term sentence under the gun-use enhancement is unfettered by the jury trial right. Thus, imposition of the upper term on the gun-use enhancement does not constitute a violation of the Sixth Amendment. (See Cunningham, supra, 127 S.Ct. at p. 860; Apprendi, at pp. 488 & 490.)
Even if Cunningham and Blakely applied to the gun-use enhancement, we reject defendant’s claim for the reasons stated previously. Likewise, to the extent defendant argues that the trial court stated inadequate reasons in imposing the upper term on the gun-use enhancement, we reject this contention for the reasons noted previously.
B. Failure to Instruct CALJIC No. 2.28
Defendant asserts the trial court prejudicially erred in giving his requested instruction (CALJIC No. 2.28) regarding the prosecution’s failure to disclose that witness Sandra Nunez would testify that she saw the defendant drive away from the scene shortly after the shots were fired.
Prior to Nunez’s testimony, defense counsel put on the record, outside the presence of the jury, that although Nunez had been identified as a prosecution witness all along, it was only the day before she was to testify that the prosecutor advised him she would testify to having seen the defendant leave the scene. The prosecutor, who had taken over the case in the middle of trial, advised the court that she had not discovered the scope of the witness’s testimony until the day before and had promptly disclosed it to defense counsel. She had also reviewed the People’s entire case file, and it contained no statement or report concerning this specific testimony. Nunez testified four days later, without objection by defense counsel.
Section 1054.1 requires the prosecution to disclose to the defendant or his attorney certain information, if that information is in the prosecution’s possession, including “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial . . . .” (Id., subd. (f).) One of the remedies for failure to comply with section 1054.1 is advising the jury “of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).)
The prosecutor elicited testimony from Nunez that on the date of the incident she heard gunshots and went to her front yard to see what had happened. She saw defendant sitting in the van, which was parked by the fence instead of in the driveway where it was usually parked. Defendant then drove away, a little faster than usual.
On cross-examination, Nunez indicated that she had first spoken with the original prosecutor in the case about a year earlier. There was then this colloquy:
“Q. [By defense counsel] All right. And when you talked to her a year ago, did you tell her what you’re telling us here this morning?
“A. Yes, I did.”
After the close of testimony, the defense requested that the court give CALJIC No. 2.28 (Failure to Timely Produce Evidence) based upon the People’s failure to disclose information or reports on Nunez having seen defendant drive away from the scene shortly after the gunshots. The court denied the request, finding there was insufficient evidence that there was any delayed discovery.
Defense counsel did not specifically ask Nunez if, when she talked to the prosecutor a year earlier, she told the prosecutor she had seen defendant drive away from the scene. It is reasonable to assume that his question, “[D]id you tell her what you’re telling us here this morning?” included that fact. However, it is equally reasonable to assume that when the witness answered, “Yes,” she was referring only to her answers to defense counsel’s questions, none of which concerned defendant driving away from the scene. We cannot say, in light of the record as a whole, that there was substantial evidence to support the giving of the requested instruction.
Even if we were to find error, however, any such error is not a constitutional error and is reviewed under the Watson harmless-error standard. (People v. Carpenter (1997) 15 Cal.4th 312, 393.)
People v. Watson (1956) 46 Cal.2d 818.
Defense counsel was able to cast doubt on Nunez’s credibility by eliciting testimony from her that when she spoke with defense investigator Mike Robitzer in August 2004, she told Mr. Robitzer that she had seen the defendant drive away from the scene shortly after the shots were fired. Mr. Robitzer, however, testified that Nunez had talked to him about an incident where a dog had eaten one of her birds and nothing else. At the end of their conversation, he asked her if she had any other knowledge or information she thought might be important to the case, and she said she did not. Defense counsel pointed out this discrepancy in testimony to the jury during closing argument.
In any event, on this record, we find that even if the cautionary instruction had been given and the jury had given no weight to the Nunez’s testimony concerning seeing defendant leaving the scene after the shooting, the testimony of witnesses Lucy, Martin, Blanca, Ernesto, and Emmanuel, set forth in detail in part I, ante, substantially supported the conviction. Based on the overwhelming evidence adduced at trial and defendant’s incredible defense, it is not reasonably likely that the outcome of the trial would have been different if CALJIC No. 2.28 had been given.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., MILLER J.