Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC058775A
STEIN, Acting P. J.
Angelo Escalante appeals his conviction of second degree murder. (Pen. Code, § 187.) The jury also found true an enhancement allegation pursuant to section 12022, subdivision (b)(1). The court sentenced defendant to a term of 15 years to life for second degree murder, and a term of one year for the personal use of a knife.
All statutory references are to the Penal Code.
Defendant’s sole contention on appeal is that the court erred by failing sua sponte to give CALCRIM No. 334, a standard instruction that informs the jury an accomplice’s testimony should be viewed with caution and must be corroborated. We shall hold that any error was harmless and affirm the judgment.
Facts
Luis Gutierrez testified under a grant of immunity. He became friends with defendant in the summer of 2004. They would hang out several times a week, and spend time together at a park, drinking and smoking.
Around noon on September 3, 2004, Gutierrez drove his car to pick up defendant. Defendant told Gutierrez he needed to see Steven Lent, a mutual acquaintance, because defendant believed Lent had taken some of his property. Lent was a Norteño and had gang-related tattoos. Defendant said he had a weapon with him for protection, because he feared that Lent might be armed. Defendant was often drunk, but that day he was in worse condition than usual.
When they picked up Lent, defendant moved to the back seat and Lent sat in the front passenger seat. They drove to Albertsons because defendant said he wanted to buy batteries. Gutierrez and Lent waited in the car. Defendant came back to the car in about 10 minutes, empty-handed. He got back in the car and began yelling at Gutierrez and Lent, asking why they had taken him to Albertsons, because he was not allowed in the store. Lent told defendant to shut up. As Gutierrez was driving out of the lot, defendant suddenly grabbed Lent by the neck. After some confusion, Gutierrez realized defendant had stabbed Lent in the neck. Lent was gasping for air, and then he stopped moving and Gutierrez knew he was dead. Gutierrez testified that his mind went blank and he was not thinking. He turned into an alley, grabbed the knife and threw it into some bushes. He identified a knife in court as the one he had thrown out.
Defendant began searching Lent’s body, but when he determined that Lent had no money, he began hitting the body. Defendant also took Lent’s shoes. Gutierrez testified that defendant seemed to have “lost his mind,” and that this was not like him. Defendant told Gutierrez to drive to McLaren Park, where defendant pulled out and left the body. When defendant got back in the car, Gutierrez slapped him and asked him why he did this. He drove defendant back to East Vista Park, and when he saw the blood on his car became angry and punched defendant.
Gutierrez was afraid to go the police because he thought they would not believe him. Instead, he went home and tried to clean himself and his car. Unable to get the blood off, he first tried to hire an attorney, but when he learned he could not afford one, he took the car to Oakley and burned it. A few days later he went to the police and told them what he knew, because he received an anonymous telephone call threatening him, and he feared that defendant was out on the street saying that he had killed Lent.
Defendant was arrested one week later after he was stopped for shoplifting. Defendant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and he gave a statement. After initially denying that he knew Gutierrez or Lent, he told the police that Lent had stolen clothes from him, and made defendant steal things on Lent’s behalf. Defendant admitted that he stole a knife from Albertsons and hid it under his shirt. When he reentered the car he stabbed Lent only after Lent verbally provoked him and lunged at him. When asked whether Gutierrez was involved, he told the police that Gutierrez had nothing to do with the killing, and that it was not planned. He showed the police where he dumped Lent’s shoes and his own bloody clothes. Lent’s blood was also on swabs taken from the knife and from a brush Gutierrez used to clean out his car.
Discussion
Defendant contends that there was substantial evidence from which the jury could have concluded that Gutierrez was an accomplice and therefore the court had a sua sponte duty to give CALCRIM No. 334, which advises the jury that, if it determines a witness is an accomplice, (1) it should view with caution any testimony that incriminates the defendant; and (2) the accomplice’s statement must be corroborated by independent evidence.
It is well established that whenever there is substantial evidence from which a jury might conclude that a witness is an accomplice, the court has a sua sponte duty to instruct the jury in accordance with the principles set forth in CALCRIM No. 334. (People v. Boyer (2006) 38 Cal.4th 412, 466.) In a conference on jury instructions, the court stated it was not going to give this instruction because the parties had discussed at length whether Gutierrez could be considered an accomplice, and had agreed that “it’s not either side’s theory that Mr. Gutierrez was an accomplice.” Defendant did, however, argue to the jury that it was Gutierrez, not defendant, who killed Lent.
The Attorney General contends that defendant invited the error by agreeing there was no evidence Gutierrez was an accomplice. (See People v. Cooper (1991) 53 Cal.3d 771, 830.) He further contends that, in any event, there was no substantial evidence from which the jury could have concluded Gutierrez was an accomplice. (§ 1111; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103 [whether a person is an accomplice is normally a question of fact for the jury unless the facts and inference are undisputed].) We need not reach either of these issues because the failure to give the instruction was harmless.
The California Supreme Court has held that failure to give an instruction concerning testimony of an accomplice is an error of state law, that the error does not lessen the prosecution’s burden of proof and is reversible only if, absent the error, it is reasonably probable the result would have been more favorable to defendant. (People v. Frye (1998) 18 Cal.4th 894, 966-969; People v. Lawley (2002) 27 Cal.4th 102, 161-1620.) We are bound by the decisions of our Supreme Court, and therefore reject defendant’s contention that the error is instead a violation of federal constitutional dimension because it lessens the prosecution’s burden of proof, and that it is reversible per se. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In People v. Cook (2006) 39 Cal.4th 566, the court explained that “[t]he rationale for instructing a jury to view with caution an accomplice’s testimony that incriminates the defendant is the accomplice’s self-interest in shifting blame to the defendant. [Citation.] Not giving such instructions, however, is harmless, even if erroneous, when there is ‘ample evidence corroborating the witness’s testimony.’ ” (Id. at p. 601.) Defendant’s statements to the police admitting that he was angry at Lent for stealing his property, that he stole a knife at Albertsons and hid it under his shirt, and that he stabbed Lent in the neck and took his shoes, is ample corroboration. He also led the police to the place where he hid the shoes. In People v. Williams (1997) 16 Cal.4th 635, 680, the court held that “[t]he necessary corroborative evidence for accomplice testimony can be a defendant’s own admissions. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1208, fn. 9 [defendant’s testimony and inferences therefrom may be sufficient corroboration]; People v. Rippberger (1991) 231 Cal.App.3d 1667, 1684 [‘A defendant’s own conduct, declarations and testimony may furnish adequate corroboration for the testimony of an accomplice’]; see also People v. Zapien (1993) 4 Cal.4th 929, 983 [defendant’s flight constitutes an implied admission that can properly be considered as corroborative of accomplice testimony]; People v. Garrison (1989) 47 Cal.3d 746, 773 [same].)”
Defendant acknowledges that the foregoing is sufficient corroboration to render harmless the failure to give the portion of CALCRIM No. 334 advising the jury that it may not rely upon the testimony of an accomplice unless it finds the testimony is supported by other independent and credible evidence. He nevertheless asserts that the existence of such corroborating evidence does not necessarily render harmless the failure to inform the jury of a second principle included in CALCRIM No. 334, i.e., that it should view the testimony of an accomplice that incriminates the defendant with caution. The purpose of this caution is simply to admonish the jury not to “accept the words of an accomplice at face value, with any presumption of truthfulness and candor, or upon the same standard as that applied to other witnesses.” (People v. Gordon (1973) 10 Cal.3d 460, 471 [court found same caution effectively conveyed by prosecutor’s opening statement].) In People v. Lewis (2001) 26 Cal.4th 334, 371, the court specifically analyzed the prejudicial effect of a failure to give this caution, and determined that the giving of other instructions, “including ‘[a] witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others’ [citation] along with instructions on a witness’s credibility [citation] and the character of a witness for honesty or truthfulness or their opposites [citation]” were sufficient to cure omission. The court gave the equivalent CALCRIM instructions in this case. The specific admonishment that Gutierrez’s testimony should be viewed with caution if the jury determined he was an accomplice would have added little to the many reasons for distrusting his testimony that defense counsel was able to argue under the instructions given. Defense counsel argued that Gutierrez was testifying under a grant of immunity, that he was at the scene, helped to conceal or destroy evidence, delayed in reporting the crime, and many other factors. The jury nonetheless either determined that Gutierrez was credible, or rejected his testimony, but credited defendant’s admissions in his statement to the police.
For all of these reasons, we conclude that, even if the court had given CALCRIM No. 334, it is not reasonably probable the result would have been different, and therefore any error was harmless.
Conclusion
The judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.