Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Super.Ct.No. FSB057678
Daniel G. Koryn, 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, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
A jury convicted defendant and appellant Andy Rey Garcia of second degree murder. (Pen. Code, § 187.) The jury also found true the allegation that defendant personally and intentionally discharged a firearm proximately causing death. (§ 12022.53, subd. (d).) Defendant contends that the trial court erred by failing to instruct on involuntary manslaughter as a lesser included offense, erred by denying his request for accomplice instructions, and abused its discretion by allowing a witness to wear a military uniform. We affirm and direct modification of the judgment to include a court security fee and a facilities assessment that were omitted during sentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
On August 19, 2006, the victim was shot in a bar parking lot. He died from a gunshot wound to his chest. Multiple shots were fired; there was a pause between some of the gunshots. No bullet shell casings were found in the parking lot; this suggested that a revolver was used.
The gunshots originated from a group of people associated with a house adjacent to the bar. Defendant, as well as Mssrs. Foss and Ortez, had been at the house earlier. During the confrontation with the victim, defendant was standing with Mr. Foss and “three or four other guys.” After the shooting, defendant and Mr. Foss ran to Mr. Foss’s car. A group of people got into the car, and then the car drove off.
Mr. Ortez denied telling a detective that defendant was the shooter, that he had seen defendant with the gun before, and that the gun was a revolver. However, the police detective who interviewed Mr. Ortez testified that Mr. Ortez had told him that he saw defendant with a gun. Mr. Ortez also told the detective “that, after hearing the argument coming from the parking lot of the [bar], he eventually did see [defendant] fire a handgun.” Mr. Ortez said the “victim had said that ‘If you got the balls, pull it out. Shoot it.’ ” Mr. Ortez described the gun “as a.357” as well as “a revolver and a pistol.” During the interview, Mr. Ortez said that defendant and Mr. Foss were arguing with the victim and the victim’s friend. Mr. Foss “took it the wrong way.” The victim “got out of the car, like-like, oh, what’s up then? What’s up then.” The victim then began walking toward a group of people, which included both defendant and Mr. Foss. “Then [defendant] was all showing a gun. [The victim then said, ] Oh, oh, you got the balls enough to pull it out, pull it out. Shoot it. Shoot it.”
The parties entered a stipulation of what the detective who interviewed one of the individuals associated with the adjacent house would have testified, had he testified. According to the detective, the interviewee said “[defendant] and [Mr. Foss] were not in their right minds and [defendant] was more on edge.”
After receiving immunity as an accessory after the fact, Mr. Foss testified. Sometime during the day, he and defendant started drinking while at the house adjacent to the bar. Around 5:00 p.m., Mr. Foss saw defendant with a firearm in his waistband, as well as showing the firearm to someone hanging out at the house. As the bar was closing, Mr. Foss was out front; “there was a group of people that [Mr. Foss] didn’t know and a group that [he] did know, and it was real loud. There was a confrontation going on. [Mr. Foss] didn’t know what it was about.” The group of people Mr. Foss knew included the defendant. The group of people he did not know “was a bunch of people, ” including the victim and the victim’s friend. Concerned that something was going to happen, Mr. Foss started to walk across the street, heard gunshots once he got across the street, and then looked back and saw defendant firing. Mr. Foss got in his car; by the time he had started the car, defendant and two others had got in his car. Mr. Foss saw the firearm as defendant was getting in the car, “[b]ut by the time [defendant] sat down, his shirt was covering it.” Defendant said, “We gotta go.” Mr. Foss drove everyone to an apartment complex and dropped them off before he went to his sister’s house. Mr. Foss testified that during his interview with a police detective, he had told the detective “defendant said, ‘Get out of here. I just shot that guy.’ ” Mr. Foss did not believe that defendant had taken the firearm into the bar because the security guard does searches. He did not recall defendant or anyone else getting a gun from the house, nor did he recall telling the detective that he saw someone go to the residence, come back with the gun, and walk up to defendant. But he testified that if he had told the detective that, then it would have been the truth.
The detective who interviewed Mr. Foss testified. Mr. Foss had told the detective that he saw someone go back to the house and return with a firearm in their waistband, pull it out of the waistband, and approach defendant. Mr. Foss said he did not actually see the person hand the gun to defendant because that was the point at which he became concerned something was going to happen and he started to cross the street to go to his car.
Between the shooting and the trial, Mr. Foss joined the Army. The People flew him from Fort Richardson, Alaska, to testify. The People also paid for his lodging and meals. Defense trial counsel objected to Mr. Foss wearing a uniform while testifying: “I think that’s an induction of good character. I don’t think his military status has any bearing.” Defense trial counsel further argued, “[Mr. Foss] is not on duty.... He’s wearing the uniform to appear formal. [¶] It’s also making a statement to the jury. In these times, people have sympathy.” Mr. Foss then stated, “I can take the jacket off. It’s a green uniform.” The trial court did consider giving an admonition. Defense trial counsel responded, “I don’t want an admonition. I’m making an objection for the record.” The parties and the trial court then engaged in discussion of the uniform, as well as potential testimony disclosing Mr. Foss’s impending overseas deployment. As opposed to the positive association with the military, the trial court noted to defendant’s trial counsel that, “you have a witness who is granted immunity because he could have been charged with a serious felony in this case. That’s a factor going to your favor, your client’s favor, all those factors.” The trial court let Mr. Foss testify in uniform, but directed the People not to inquire directly about the impending deployment and not to dwell on the issue if it was raised. During cross-examination, Mr. Foss testified that during the four or five months in which he knew defendant, together they would do “a lot of drugs, drinking, tagging, just dumb things.” Defense trial counsel then noted that Mr. Foss was wearing a military uniform, and had Mr. Foss confirm that he had turned his life around.
Defendant requested accomplice instructions arguing Mr. Foss was an accomplice; the request was denied because “[t]here is no evidence that there was any agreement between anybody, [defendant] included, or Mr. Foss included.” Defendant also requested instructions for involuntary manslaughter as a lesser included offense. Defense trial counsel contended that the shooting could have occurred in self-defense without conscious disregard for human life. The court disagreed and did not give involuntary manslaughter instructions, because “under any theory, the defendant or whoever acted with conscious disregard of the risk to human life because this killing was accomplished by someone firing into a crowded parking lot, which anyone would realize has severe risk to human life.”
II. INVOLUNTARY MANSLAUGHTER INSTRUCTIONS
Defendant contends the trial court erred by failing to instruct the jury on involuntary manslaughter as a lesser included offense to murder. In particular, defendant contends that because he had been drinking all day, he did not have the intent to kill and was unaware of the risk of firing the gun while committing the misdemeanor offense of brandishing a firearm. (§ 417.) The People contend that “the evidence does not reasonably support a finding that [defendant’s] conduct was anything less than an assault with a firearm, a felony inherently dangerous to human life.” We agree with the People.
“[W]e independently determine whether an instruction on the lesser included offense of involuntary manslaughter should have been given. [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 587.)
“ ‘A court is not obligated to instruct sua sponte on involuntary manslaughter as a lesser included offense unless there is substantial evidence, i.e., evidence from which a rational trier of fact could find beyond a reasonable doubt [citation] that the defendant killed his victim “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection” [citation].’ [Citations.]” (People v. Manriquez, supra, 37 Cal.4th at pp. 587–588.) “ ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
The evidence was that the firearm was repeatedly discharged. Thus, in the confrontation between the victim and defendant’s group, the firearm was not merely brandished and then accidentally discharged, but was intentionally fired multiple times. Accordingly, even if no intent to shoot victim was present, an assault with a firearm occurred, and the trial court had no duty to instruct on involuntary manslaughter.
Furthermore, the jury found that defendant personally and intentionally discharged a firearm proximately causing death. (§ 12022.53, subd. (d).) In so finding, “the jury necessarily determined that defendant formed the requisite specific intent despite his consumption of... alcohol. In view of this finding, the jury could not have concluded he was unconscious and therefore guilty only of involuntary manslaughter. Thus, even if the court had erred in its instructions, we would find that such error was clearly harmless. [Citation.]” (People v. Heard (2003) 31 Cal.4th 946, 982.)
III. ACCOMPLICE INSTRUCTIONS
Defendant contends the trial court erred by denying requested accomplice instructions regarding Mr. Foss. The People contend Mr. Foss was not an accomplice. We agree with the People.
“Under section 1111, an accomplice is ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ To be chargeable with an identical offense, a witness must be considered a principal under section 31.... [¶] ‘If there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony. [Citation.] But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. [Citation.]’ [Citations.]” (People v. Lewis (2001) 26 Cal.4th 334, 368-369, fn. omitted.) “A mere accessory... is not liable to prosecution for the identical offense, and therefore is not an accomplice. [Citations.]” (People v. Horton (1995) 11 Cal.4th 1068, 1114; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103 [“Accessories... (defined as persons who, after a felony has been committed, harbor, conceal or aid a principal in the felony...), are not accomplices as to whose testimony corroboration is required”].) Instead, being an accomplice “requires a relationship between the defendant and accomplice, either by virtue of a conspiracy or by acts aiding and abetting the crime. [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 212 (Ward).) “ ‘An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.’ ” (People v. Richardson (2008) 43 Cal.4th 959, 1023.)
Defendant relies on testimony that Mr. Foss was next to defendant at the time of the shooting, drove the vehicle fleeing the scene, took comments from the victim “the wrong way, ” behaved poorly prior to joining the Army, and lied when he first spoke with the police. However, none of this testimony indicates a conspiracy or that Mr. Foss both knew of defendant’s criminal purpose and intended to encourage or facilitate the murder of the victim. Further, to the extent that defendant’s theory below was that someone else, such as Mr. Foss, shot the victim, then accomplice instructions would not be required. (See Ward, supra, 36 Cal.4th at p. 212.) Accordingly, we find no error in the trial court’s denial of defendant’s requested accomplice instructions.
IV. TESTIFYING IN UNIFORM
Defendant contends the trial court abused its discretion by permitting Mr. Foss to testify while wearing his military uniform. Specifically, he contends that because Mr. Foss was not on duty, the uniform was irrelevant and an improper form of imputing good character. The People contend Mr. Foss’s uniform went to his employment, which was foundational and not prejudicial; they also note that the jury was instructed with CALCRIM No. 226, which instructed them to judge each witness by the same standards. In this issue of first impression in California, we find no error in permitting military personnel to testify while in uniform, even if they are off-duty and testifying in an unofficial capacity.
“ ‘The test for attire is whether it interferes with courtroom decorum disrupting justice, i.e., whether it tends to cause disorder or interfere with or impede the functioning of the court.’ ” (Jensen v. Superior Court (1984) 154 Cal.App.3d 533, 541.) “[A]bsent a mode of dress that is obscene, disruptive, distractive, or depreciative of the solemnity of the judicial process, or that will create an atmosphere of unfairness, a party or a witness may decide what to wear in court.... [A]ny positive or negative potential bias that might be caused by any other attire worn by the party or the witness can and should be addressed during the jury selection process, the trial, and in the instructions to the jury.” (State v. Fergerstrom (Hawaii Ct.App. 2004) 101 P.3d 652, 670.)
Army regulations permit the wearing of the service uniform while off duty. (U.S. Dept. Army, Reg. 670-1, Wear and Appearance of Army Uniforms and Insignia, para. 15-4 (Feb. 3, 2005).) The attire of a witness is demeanor evidence. (See People v. Adams (1993) 19 Cal.App.4th 412, 438 [discussing demeanor as evidence and stating that triers of fact should “ ‘take into consideration the whole nexus of sense impressions which they get from a witness’ ”].) “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question [citations]. Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724.) Under this standard, a trial court’s ruling “ ‘ “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” ’ [Citation.]” (People v. Williams (2008) 43 Cal.4th 584, 634–635.)
Defendant does not contend that Mr. Foss’s uniform was disruptive. Rather, he contends that the uniform provided a “false aura of veracity” that bolstered Mr. Foss’s credibility and generated “an emotional bias against [defendant].” Defendant’s argument is flawed because the jury may not have had a positive view of the military. Even if the members of the jury did hold the military in high esteem, it does not necessarily mean that the jury would accord a member of the military a greater degree of credibility than a nonmilitary witness. (People v. Lane (Ill. Ct.App. 2010) 922 N.E.2d 575, 585.) This is especially so in this case. Mr. Foss had been granted immunity from prosecution as an accessory after the fact and testified that he had been drinking, taking “a lot of drugs, ” and “tagging” in the months before the incident. Furthermore, viewing Mr. Foss testify while wearing a military uniform did not create an intolerable risk to the fairness of the proceedings, and any impact upon the jury is speculative. (See ibid [impact of wearing uniform is speculative when jury knows witness is in the military].) Thus, even if the jury accorded Mr. Foss greater credibility for wearing an Army uniform, it does not follow that the jury would then have emotional bias against defendant. Accordingly, we find no abuse of discretion in permitting Mr. Foss, an off-duty member of the military, to testify while wearing his military uniform.
V. OMITTED FEE AND ASSESSMENT
Although not raised by the parties, we note that the trial court did not impose a court security fee or a facilities assessment.
Penal Code section 1465.8, subdivision (a)(1), provides that, “a fee... shall be imposed on every conviction for a criminal offense....” (Italics added.) Government Code section 70373, subdivision (a)(1), provides that, “an assessment shall be imposed on every conviction for a criminal offense....” (Italics added.)
This language is mandatory. Thus, both need to be imposed. If they are not imposed, the judgment should be modified on appeal to include them. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328 [discussing Pen. Code, § 1465.8; see People v. Castillo (2010) 182 Cal.App.4th 1410, 1414 [noting similarity of Pen. Code, § 1465.8 and Govt. Code, § 70373 and presumption of similar meaning].)
Accordingly, the judgment should be modified to include a court security fee and a facilities assessment.
VI. DISPOSITION
The trial court is directed to modify the judgment to include a $20 court security fee pursuant to Penal Code section 1465.8 and a $30 facilities assessment pursuant to Government Code section 70373. After the judgment is modified, the superior court clerk is directed to amend the abstract of judgment to include the fee and assessment. The superior court clerk is then directed to forward certified copies of the amended abstract of judgment and new sentencing minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., MILLER J.