Opinion
H035408
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. BENNY HERNANDEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC897349)
A jury convicted defendant Benny Hernandez of first degree murder. It also found true two special-circumstance allegations for purposes of a life-without-parole sentence (killed while lying in wait--Pen. Code, § 190.2, subd. (a)(15); killed while an active participant in a criminal street gang and murder was carried out to further activities of the street gang--id. subd. (a)(22)). It also found true a gang allegation for purposes of a 10-year sentence enhancement (committed offense for the benefit of, direction of, and in association with a criminal street gang--§ 186.22, subd. (b)(1)(C)). And finally it found true a deadly-weapon allegation for purposes of a one-year sentence enhancement (personally used a deadly weapon--§ 12022, subd. (b)(1)). The trial court sentenced defendant to life without parole consecutive to 11 years. It also imposed a $10,000 restitution fine (§ 1202.4) and a corresponding, suspended parole-revocation fine (§ 1202.45). On appeal, defendant contends that (1) the evidence is insufficient to support the gang special-circumstance finding, (2) the trial court abused its discretion by admitting evidence of his misconduct while incarcerated in the California Youth Authority (CYA) and two juvenile adjudications, (3) the trial court abused its discretion by admitting hearsay evidence under the guise of prior consistent statements, (4) the trial court abused its discretion by admitting numerous gruesome photographs of the murder victim, (5) the trial court erred when instructing the jury in the language of CALCRIM No. 334 (accomplice testimony must be corroborated), (6) the 10-year gang enhancement is improper, and (7) the suspended parole-revocation fine is improper. We strike the parole-revocation fine and affirm the judgment.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant belonged to San Jose Unidos (SJU), a subset of the Norteno criminal street gang. On February 20, 2008, he and Christopher Cabrera--an SJU associate--were eating at a McDonald's restaurant when two men came into the restaurant and starting fighting with them. During the fight, one of the men pulled out a knife. Cabrera then stopped fighting, and defendant was stabbed while combating the two men. While in the hospital, defendant told fellow gang member Anthony Garcia that he was angry about being stabbed and Cabrera should have done something.
On February 22, 2008, SJU member Mathew Cruz hosted an SJU meeting at his home to discuss disciplining Cabrera for not backing up defendant at McDonald's. Cruz, defendant, Garcia, Gregory Wang, and Diego Montantes were in the home. All but defendant agreed to beat up Cabrera. The plan was that all would participate in a group beating. But defendant expressed that he wanted Cabrera dead. He said that he would pick up Cabrera on February 23, and instructed Montantes to steal a car.
On February 23, 2008, Cruz hosted a party attended by defendant, Wang, Garcia, David Rodriguez and Kyle Moneyhun. Cruz and defendant again discussed Cabrera's discipline. Cruz expressed that he wanted Cabrera beaten up and defendant expressed that he wanted Cabrera dead. At some point, Wang and Montantes left the home, stole a Camry, and returned. Montantes told defendant: "it's outside." Defendant announced that he "might go pick up" Cabrera. He and Wang then left the home.
Cabrera was at Andrew Gutierrez's home and received a phone call from defendant. Afterward, Cabrera told Gutierrez that defendant was going to pick him up and take him to a party. Defendant's cell phone records suggest that he traveled to Gutierrez's home, then to the park where Cabrera's body was later found, and finally back to Cruz's home. Defendant was wearing different clothes when he returned to Cruz's home and burned a bag of clothes in Cruz's barbeque. He told Cruz "it's done," "the gun jammed," and "we had to use the bat."
On February 24, 2008, the police found Cabrera's body in the middle of Marijane Hamann Park. Cabrera had suffered a crushed skull and face from at least 10 blows of a blunt object.
At some point, defendant visited Montantes's home and told Montantes that "we hit the news," "took him to Marijane Park," and "got him with a bat." He offered that he was leaving town.
On February 25, 2008, Cruz gave Moneyhun a bat and told him to get rid of it. Moneyhun took the bat to his home and wiped it clean. At some point, the police interviewed defendant, and defendant denied knowing Cabrera.
On February 26, 2008, the police found the stolen Camry and a substance found on the driver's seatbelt proved to have DNA matching Cabrera's DNA.
EVIDENCE OF GANG MURDER SPECIAL CIRCUMSTANCE
The jury found that defendant killed Cabrera "while the defendant was an active participant in a criminal street gang, known as, Norteno, and the murder was carried out to further the activities of the criminal street gang."
Defendant contends that the evidence is insufficient to support the finding that the murder was carried out to further the activities of the criminal street gang. He urges that the evidence was undisputed that the gang was opposed to the killing and defendant acted on his own. He explains: "While it is undisputed that the gang intended to physically assault Cabrera as a means of disciplining him for his failings at the McDonald's restaurant, the undisputed evidence also shows that [defendant's] gang was against killing Cabrera." He concludes: "The undisputed evidence here established that [defendant] acted on his own, without the consent, agreement, or prior knowledge of his gang."
We need not reach this issue. The sole purpose of a special circumstance finding is to mandate a sentence of life without the possibility of parole. (§ 190.2, subd. (a).) In addition to finding that the murder was carried out to further the gang activities, the jury found that defendant "intentionally killed Christopher Cabrera while lying in wait." Lying in wait is also a special circumstance that requires a sentence of life without the possibility of parole. (Id. subd. (a)(15).) On appeal, defendant does not challenge the lying-in-wait finding. Thus, even if defendant were correct regarding the evidence supporting the special circumstance of murder committed for a criminal street gang purpose, the special circumstance of murder committed while lying in wait requires the life-without-parole sentence. In short, the finding of a street gang murder is irrelevant under the facts of this case and any supposed error in making the finding without sufficient supporting evidence is harmless. (People v. Dominick (1986) 182 Cal.App.3d 1174, 1202 ["any error in regard to this special circumstance is harmless under the facts of this case because defendants did not receive the death penalty and there is a second special circumstance allegation which must be upheld."].)
ADMISSION OF CYA MISCONDUCT AND JUVENILE ADJUDICATIONS CYA Evidence
Defendant was housed in CYA from December 2003 until September 2007. Over his objections, the trial court admitted the following evidence during the testimony of the People's gang expert: (1) on August 29, 2006, when 37 CYA wards that included Norteno gang members were doing "militaristic" exercises in the recreation yard, correctional officers instructed the wards to stop doing the exercises and defendant ordered the wards "not to obey the correctional officer[s] and defy them"; (2) on July 24, 2006, CYA authorities found in defendant's cell a gang-related "kite" written by defendant purporting to enforce some degree of discipline or instruct a gang member to do or not do something; (3) on August 17, 2005, defendant fought with a ward who had dropped out of the Norteno gang; and (4) on August 18, 2005, defendant fought with another ward who was a Norteno dropout.
Defendant voiced his objections during in limine proceedings and trial. He objected on the grounds that the probative value of the CYA evidence was "minimal when compared to the potential for prejudice and inflaming the passions of the jurors" and the evidence violated due process principles.
As to the CYA incidents, the trial court explained as follows.
"With respect to probative value outweighing prejudice or vice versa . . . this material is additional to other material, I think the fact that these activities are taking place in the California Youth Authority is very probative on certain issues in addition to membership in the gang and participation, but they go to what I believe is that--well, I should back up. I will state what I think they are relevant for in addition to those things. [¶] But none of these particular incidents are more inflammatory than the charges for which the defendant is being tried in this case, individually. Even though they do take place in that locked setting, none of them involve weapons or even serious bodily injuries to anybody, that I can glean from the records. [¶] So I don't think they're more--the jury is likely to say, Well, if he did these things in custody, he's certainly capable of doing this--this murder, because none of them rise to that level in terms of the violence or injuries or any of those kind of things. So I don't think they're inflammatory in and of themselves or, frankly, cumulatively in terms of the specific actions that were taken. [¶] What they are relevant for, in addition to the membership and participation, is that they show someone who certainly seems to be entrenched or inculcated in the gang culture.
And this may actually be relevant to motive in this case or not. But I--I think that it's relevant for that as well. [¶] And I think that, for that reason, I'm going to find that the probative value outweighs any prejudice and allow the expert to refer to those incidents, with the specific admonition that will be prepared by the defense for me to read at the time they request it."
Before the People's expert testified about gang activity, the trial court instructed the jury as follows: "You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime enhancement and special circumstance allegations charged or the defendant had a motive to commit the crime charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
Character evidence in the form of specific instances of a person's conduct is inadmissible when offered to prove the person's conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) This prohibition, however, does not apply if the evidence is relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident, other than the person's disposition to commit the act. (Id. subd. (b).)
On appeal, the trial court's determination of whether to admit prior conduct evidence under Evidence Code section 1101, "being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.] [¶] . . . [¶] . . . A court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (People v. Kipp (1998) 18 Cal.4th 349, 369, 371.)
In our context, evidence of defendant's misconduct in CYA is relevant to prove a material fact other than defendant's criminal disposition. As defendant concedes, the evidence was relevant to "prove he was 'an active participant of a criminal street gang.' "
Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
We emphasize that it is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) And, like the trial court's initial determination of relevance, the trial court's exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.)
It is true that evidence of uncharged offenses can be so prejudicial that its admission requires extremely careful analysis and, since substantial prejudicial effect is inherent in such evidence, uncharged offenses are admissible only if they have substantial probative value. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) But this rule is primarily one for the trial court in the exercise of its discretion. Our task is simply to determine whether the trial court could have rationally concluded that the probative value of the evidence outweighed the prejudicial effect.
Defendant contends that the trial court abused its discretion by admitting evidence of the CYA incidents "because it was more prejudicial than probative, and merely cumulative to other evidence the prosecution had to prove [defendant's] 'active participation' in a criminal street gang--a point which was not disputed at trial." He reasons that evidence of his custodial status and uncharged crimes is inherently prejudicial and the evidence in this case "did not possess the requisite substantial probative value sufficient to overcome the inherent and significant prejudicial effect of the evidence." He concludes that "on balance, the CYA evidence was clearly more prejudicial than probative." Defendant's analysis is erroneous.
As is apparent, defendant manifestly fails to carry his appellate burden. He merely reargues his position rather than focus on the factors supporting the trial court's decision and explaining why it was irrational to rely on those factors.
In any event, it was not irrational for the trial court to conclude that the CYA evidence had substantial probative value given that it served to prove the active-participant element of the gang special circumstance allegation. As to the prejudice prong, the prejudice defendant complains of is not the sort of prejudice referred to in Evidence Code section 352. Though uncharged misconduct evidence often carries with it a certain amount of prejudice, "Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) Here, the trial court could have rationally concluded that any emotional bias was negligible given that the CYA incidents were considerably less inflammatory than the evidence of the charged brutal murder. In fact, it affirmatively expressed this view of the evidence. Thus, it was not irrational to conclude that the probative value was not outweighed by the prejudicial impact.
Defendant also reiterates that the evidence was cumulative and should have been excluded on that basis. He points out that the People introduced evidence that (1) he admitted Norteno membership, (2) Norteno members acknowledged his Norteno membership, (3) he wore gang-related tattoos and clothing, and (4) he had been detained by the police with other Norteno gang members. Again, defendant's analysis is erroneous.
" 'Evidence that is identical in subject matter to other evidence should not be excluded as "cumulative" when it has greater evidentiary weight or probative value.' " (People v. McKinnon (2011) 52 Cal.4th 610, 669.)
Here, the CYA evidence is that defendant assumed a gang leadership role among the wards to the extent of imposing physical discipline on gang drop outs. Thus, for purposes of proving active participation in the Norteno gang, the trial court could have rationally concluded that the CYA evidence had greater evidentiary weight the verbal, visual, and associational evidence highlighted by defendant. (Cf. People v. McKinnon, supra, 52 Cal.4th at p. 669 ["evidence that Robin threatened and violently attacked Hunt in an effort to dissuade him from testifying demonstrated a more serious threat to Hunt, and thus was more probative of his credibility than evidence that defendant merely verbally threatened him in an effort to achieve the same result."]; People v. Salcido (2008) 44 Cal.4th 93, 147 [the prosecution cannot be compelled to present its case in a sanitized fashion].)
Juvenile Adjudications
"The California Street Terrorism Enforcement and Prevention Act . . . criminalizes active participation in a criminal street gang [citation]. A criminal street gang is any ongoing association that has as one of its primary activities the commission of certain criminal offenses and engages through its members in a 'pattern of criminal gang activity.' [Citations.] A pattern of criminal gang activity is 'the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' specified criminal offenses within a certain time frame, 'on separate occasions, or by two or more persons' (the 'predicate offenses')." (People v. Tran (2011) 51 Cal.4th 1040, 1044.)
To prove predicate offenses in this case, the trial court admitted the following evidence that was sanitized by stipulation: (1) defendant "personally committed an offense listed in Penal Code Section 186.22, subdivision (e) [specified predicate offenses], on August 24th, 2003. A juvenile Petition was sustained for this offense"; and (2) defendant "personally committed an offense listed in Penal Code section 186.22, subdivision (e), on August 13, 2001. A juvenile Petition was sustained for this offense."
Defendant objected to admission of the evidence on the grounds that it was cumulative, more prejudicial than probative, improper character evidence, and contrary to due process principles.
The trial court overruled defendant's objections and explained its ruling as follows.
"First of all, these are being sanitized. So they're not going to know it's a, quote, robbery. [¶] Secondly, I'm only going to allow two. And I don't see what the difference is between August and February of the same year. I think I'm only going to allow 1 and 2 to be used by way of establishing the knowledge [of the pattern of criminal activity by gang members]. [Evidence Code section] 1101 allows the knowledge to be established and doesn't require, quote, similarities in order to achieve that. It does require, however, that I evaluate whether there's any undue prejudice to the defendant vis-à-vis the probative value, which would be--which would be that it has very little effect on the issues . . . and uniquely tends to evoke an emotional bias against the defendant. [¶] As these are going to be sanitized and I'm only going to allow two to be used, I don't--and I find that they do have value, the ruling of the Court is that, under 352, the defendant's prejudice does not substantially outweigh the probative value."
Defendant argues here that the trial court abused its discretion by admitting the evidence because it was cumulative and more prejudicial than probative. He points out that the People had introduced detailed evidence of five predicate offenses committed by other Norteno gang members to establish the primary activities of the Norteno gang and urges that the People did not need to introduce a predicate offense that involved defendant. He adds that the case at issue qualified as a predicate offense. He concludes that "on balance, the predicates involving [defendant] personally were more prejudicial than probative and should have been excluded under [Evidence Code] section 352."
Defendant again reargues his position without explaining why the trial court decision was irrational. It is not our function to rebalance the factors weighing for and against admission of the evidence. In any event, the trial court could have rationally concluded that defendant's own predicate offenses had more evidentiary weight than the offenses involving other Norteno gang members while, at the same time, it could have rationally concluded that the offenses were more probative than prejudicial given that the predicate offenses were less inflammatory than the charged offense--especially in the sanitized state in which the trial court admitted the evidence. Moreover, the Supreme Court has recently affirmed that the admission of predicate offenses is subject to the ordinary Evidence Code section 352 analysis.
"We hold that a predicate offense may be established by evidence of an offense the defendant committed on a separate occasion. Further, that the prosecution may have the ability to develop evidence of predicate offenses committed by other gang members does not require exclusion of evidence of a defendant's own separate offense to show a pattern of criminal gang activity." (People v. Tran, supra, 51 Cal.4th at p. 1044.)
Defendant urges that "the trial court's erroneous admission of the CYA evidence and evidence of [his] predicate offenses deprived him of due process and a fair trial." But, as we have pointed out, defendant has failed to demonstrate any error. (People v. Watson (2008) 43 Cal.4th 652, 682 [no separate constitutional discussion is required when rejection of a claim on the merits necessarily leads to rejection of constitutional theory].)
Defendant repeats his constitutional theory as to several of his contentions following this one. As to those contentions, we also reject them on the merits.
--------
ADMISSION OF PRIOR CONSISTENT STATEMENTS
On direct examination, Cruz testified about holding a gun for defendant, attending the meetings about disciplining Cabrera, hearing defendant plan to steal a car, hearing defendant announce that he was going to pick up Cabrera, seeing defendant leave with Wang, seeing defendant and Wang return, hearing defendant's "we had to use the bat" statement, and giving the bat to Moneyhun after Cabrera's killing. On cross-examination, he testified about being pressured by the police to tell the truth and admitted that he had not been charged in this case for possessing the gun, possessing the bat, getting rid of the bat, planning a beating, or lying to the police.
On direct examination, Montantes testified about stealing the car, hearing defendant talk about bullets for the gun, seeing defendant and Wang leave and return in different clothes, seeing defendant and Wang at a burning barbeque, and hearing defendant's "we hit the news" statement. He also admitted that he had pleaded guilty to vehicle theft and faced seven years in prison with an indicated sentence but without a promise of leniency. On cross-examination, he testified about being pressured by the police to tell the truth. He also admitted that the judge in his case had indicated that he would receive probation and jail time if he testified truthfully in defendant's case.
Over defendant's hearsay objection, the trial court permitted San Jose Police Lieutenant James Randol to testify about statements that Cruz and Montantes had made to him during his investigative interviews. The theory of admission was that the statements were prior consistent statements. The statements recounted by Lieutenant Randol corroborated the witnesses' trial testimony.
We review a trial court's ruling admitting evidence pursuant to an exception to the hearsay rule for an abuse of discretion. (People v. Alexander (2010) 49 Cal.4th 846, 908.)
Defendant contends that the trial court abused its discretion by overruling his hearsay objection. He urges that the witnesses' police statements did not qualify as prior consistent statements because they were not made before a motive to fabricate arose. According to defendant, the motive to fabricate arose when the police threatened the witnesses during questioning, i.e., before they made statements implicating defendant. Defendant's analysis is erroneous.
Evidence Code section 1236 provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 791." Evidence Code section 791 provides: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Cross-examination of a witness by defense counsel regarding that witness's plea agreement may be deemed to be an implied charge that the witness had an improper motive to fabricate his or her trial testimony. (People v. Hillhouse (2002) 27 Cal.4th 469, 491 (Hillhouse); People v. Bunyard (1988) 45 Cal.3d 1189, 1209.) "[A] prior consistent statement is admissible as long as the statement is made before the existence of any one of the motives that the opposing party expressly or impliedly suggests may have influenced the witness's testimony." (People v. Noguera (1992) 4 Cal.4th 599, 629 (Noguera).)"That there may always have been present a motive to fabricate does not deprive a party of his right to show that another motive, suggested by the evidence, did not also affect his testimony." (People v. Ainsworth (1988) 45 Cal.3d 984, 1014.) In Hillhouse, the court rejected the defendant's argument that the witness "had a motive to minimize his role in the crime even before he made the prior consistent statements," explaining "[t]his is no doubt true, but defendant also implied at trial that the plea agreement provided an additional improper motive. A prior consistent statement logically bolsters a witness's credibility whenever it predates any motive to lie, not just when it predates all possible motives." (Hillhouse, supra, at pp. 491-492; see also People v. Jones (2003) 30 Cal.4th 1084, 1106-1107 (Jones); People v. Andrews (1989) 49 Cal.3d 200, 210-211; People v. Hayes (1990) 52 Cal.3d 577, 609.) The focus is on the specific agreement or other inducement suggested by cross-examination as showing the witness had an improper motive. (Noguera, supra, at p. 629; Jones, supra, at p. 1107.)
As to Cruz, although no charges had been filed against Cruz, the record supports a reasonable inference that defendant's counsel implied--in cross-examining Cruz regarding his complicity in hiding the murder weapon and other possible offenses--that Cruz obtained a benefit (no charges) and thus had an improper motive to lie and testify favorably for the prosecution. The trial court could therefore have rationally concluded that Cruz's police statements qualified as prior consistent statements.
And as to Montantes, cross-examination revealed that Montantes's plea in his vehicle theft case gave him a hope for leniency (probation) and thus provided him with an improper motive to lie and testify favorably for the prosecution. The trial court could therefore have rationally concluded that Montantes's police statements qualified as prior consistent statements. It is true, as defendant points out, that Montantes's plea agreement was revealed in direct examination. But it is not true that the People engaged in a sort of bootstrapping by assigning a motive to lie to their own witness so as to later offer prior consistent statements. Defendant fleshed out the details of the plea agreement in cross-examination. The trial court could therefore have reasoned that cross-examination--not direct examination--triggered the motive-to-lie theory.
Defendant again attempts to constitutionalize his claim of state court evidentiary error by urging that "the erroneous admission of Cruz and Montantes's hearsay statements through the testimony of Detective Randol deprived [defendant] of due process and a fair trial under the federal and state constitutions." Again, defendant has failed to demonstrate any error.
ADMISSION OF MURDER VICTIM PHOTOGRAPHS
Defendant contends that the trial court abused its discretion by admitting certain photographs of the murder scene and autopsy over his objection grounded on Evidence Code section 352 and federal due process principles. Defendant again fails to carry his appellate burden.
During in limine proceedings, the trial court reviewed two packets of photographs "in order to make a 352 evaluation of those." The court's exhibit No. 1 contained 15 photographs of the murder scene, five of which depicted Cabrera's bashed in, bloody face. The court's exhibit No. 2 contained 21 autopsy photographs, six of which depicted Cabrera's bashed in face, mouth, and eye. Defendant objected to admission of certain photographs, though it is unclear from the record which ones. He argued that "[T]here are additional photos of the head and face of the victim that I'm not posing an objection to. I think that those photographs that I'm not objecting to adequately convey to the jury whatever point it is that the prosecution desires, i.e., the nature of the injuries, whether or not he wants to argue in terms of the brutality of the assault. [¶] The other pictures that I objected to are, in my view, cumulative, duplicative, and would likely carry a high degree of risk of inflammatory evidence for the jury. It would be difficult for them to focus on the issues at hand in light of the other photos that they are going to be able to see that we are not objecting to." The trial court commented that "these are obviously not going to be pleasant for the jury to look at, I want to keep it in reasonable bounds." In going through one of the photographs, it noted that "it shows the swelling in the posterior lobe. So that may give some indication about the internal bleeding, which I don't think is present in some of these other photos." Ultimately, the trial court excluded four crime-scene photographs, one of which depicted Cabrera's face, and one autopsy photograph, which depicted Cabrera's face.
Defendant claims that the trial court abused its discretion by admitting (1) all four, crime-scene face photographs (exhibit Nos. 3, 18, 19, & 20), and (2) all five autopsy, face-mouth-eye photographs (exhibit Nos. 71, 74, 75, 76, & 77). He also claims abuse of discretion in admitting exhibit Nos. 80 and 81 (depicting a laceration on the back of Cabrera's head) on the ground that the photographs are duplicative. He argues that "The photographs contained gruesome depictions of Cabrera's wounds and served only to inflame the passions and prejudices of the jurors against [him]. The crime scene and autopsy photographs, and particularly the close-up photographs of Cabrera's face and head, that were admitted at trial were not only gruesome and shocking, but were unnecessary to the People's case. The cause of death was not disputed. Admission of the photographs therefore served no valid evidentiary purpose. The photographs were far more prejudicial than probative, and [the] court's error in admitting them into evidence violated [his] federal constitutional rights to an impartial jury and to due process."
Defendant again reargues his trial court position without explaining the manner in which the trial court's decision was beyond reason. In any event, defendant could not successfully make such an argument.
Appellate courts are " 'often asked to rule on the propriety of the admission of allegedly gruesome photographs. [Citations.] At base, the applicable rule is simply one of relevance, and the trial court has broad discretion in determining such relevance. [Citation.] " '[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant' " [citation], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative [citation]. A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.' " (People v. Lewis (2009) 46 Cal.4th 1255, 1282; accord, People v. Hinton (2006) 37 Cal.4th 839, 896.) The discretion applies equally to an autopsy photograph, which may be admitted as "pertinent because it showed the 'nature and placement of the fatal wounds' . . . [or] supported the prosecution's theory of how the murders were committed [citation] [or] illustrated the testimony of the coroner and percipient witnesses." (People v. Loker (2008) 44 Cal.4th 691, 705.)
We have examined the complained-of photographs and conclude that, although they are indeed graphic and unpleasant, the trial court did not abuse its discretion in permitting the prosecution to introduce them into evidence. We begin with the oft noted truism that " ' "murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant." ' " (People v. Roldan (2005) 35 Cal.4th 646, 713, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The trial court could have rationally concluded that photographs were highly relevant. The photographs showed the nature and brutality of the wounds, which illustrated the People's theory that the killer had animus toward Cabrera and the coroner's testimony about the severity of the injuries. Because the photographs were limited to those showing the nature and placement of the wounds, and supported the People's portrayal of why the murder was committed and, inferentially, that defendant was the killer, it was admissible to "illustrate[] the testimony of the coroner and percipient witnesses." (People v. Loker, supra, 44 Cal.4th at p. 705.) It is true that Cabrera had been beaten extensively and the photographs documented this. "Some . . . were indeed gruesome, but not unnecessarily so. The challenged photographs simply showed what had been done to the victim; the revulsion they induce is attributable to the acts done, not to the photographs." (People v. Brasure (2008) 42 Cal.4th 1037, 1054.) The photographs were not "somehow rendered irrelevant simply because [the] defendant did not dispute the cause of death or the nature and extent of the victim's injuries." (People v. Heard (2003) 31 Cal.4th 946, 975.)
Even assuming that the photographs simply corroborated witness testimony as to how the murder occurred, this does not establish that the trial court abused its broad discretion in admitting the photographs into evidence. " '[P]rosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case.' " (People v. Roldan, supra, 35 Cal.4th at p. 713.) The People are entitled to prove their case and need not " 'accept antiseptic stipulations in lieu of photographic evidence.' [Quoting People v. Pride (1992) 3 Cal.4th 195, 243.]" (People v. Loker, supra, 44 Cal.4th at p. 705.) "Autopsy photographs are routinely admitted to establish the nature and placement of the victim's wounds and to clarify the testimony of prosecution witnesses regarding the crime scene and the autopsy, even if other evidence may serve the same purposes." (People v. Howard (2010) 51 Cal.4th 15, 33.) On this record, we cannot conclude the prejudicial effect of the photographs so clearly outweighed their probative value to render the trial court's ruling an abuse of discretion.
CALCRIM NO. 334
Moneyhun was Cruz's neighbor. He was a gang drop-out who had been affiliated with Northern Garkstero Familia (NGF), another gang subset of the Norteno gang. He was never a member of SJU, though he knew members of that gang. His testimony was that he had overheard two conversations between defendant and Cruz at a party that started in front of Cruz's apartment and "scattered throughout the whole complex." The first conversation occurred in the parking lot while Moneyhun was standing about seven feet away drinking a beer. In this conversation, defendant told Cruz that he had been stabbed while with Cabrera who did nothing. The second conversation occurred next to the stairs leading to Cruz's apartment while Moneyhun was standing on the opposite side about 25 feet away at the base of stairs leading to his apartment. In this conversation, defendant and Cruz were arguing about Cabrera not helping defendant and defendant said that he did not want Cabrera disciplined but wanted Cabrera dead.
The trial court instructed the jury in the language of CALCRIM No. 334 to the effect that it could not consider the statements of Cruz, Garcia, or Montantes without first determining whether the person was an accomplice. It then added that, if the jury decided that a witness was an accomplice, it could not convict defendant on the uncorroborated statement of an accomplice.
Defendant contends "that the court's failure to include Moneyhun among the lists of accomplices whose testimony required corroboration, violated state law, as well as the due process clause of the federal Constitution because the error improperly diminished the standard of proof." According to defendant, "[t]he evidence reasonably supported the conclusion that [Moneyhun] aided and abetted the commission of the crime and was therefore an accomplice. Moneyhun, like Cruz, Garcia, and Montantes, was an active participant in the SJU subset of the Norteno criminal street gang, who was present at Cruz's house on the night of the homicide. [Defendant's] defense at trial was that the entire gang had a motive to kill Cabrera because he showed weakness which was not acceptable in the gang culture. In addition, the bat was given to Moneyhun, who knew it was used in a beating or something illegal, and he took it to his house and wiped it clean of evidence. Moneyhun was a key participant in the events surrounding this offense. And, like Cruz, Garcia, and Montantes, he lied to police about his involvement here, even going so far as to fake his own kidnapping."
Defendant's analysis is erroneous.
Section 1111 defines an accomplice as "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." The statute further provides: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (§ 1111.) "In order to be an accomplice, the witness must be chargeable with the crime as a principal (§ 31) and not merely as an accessory after the fact (§§ 32, 33). [Citation.] An aider and abettor is chargeable as a principal, but his liability as such depends on whether he promotes, encourages, or assists the perpetrator and shares the perpetrator's criminal purpose. [Citation.] It is not sufficient that he merely gives assistance with knowledge of the perpetrator's criminal purpose." (People v. Sully (1991) 53 Cal.3d 1195, 1227.)
The trial court has a sua sponte duty to instruct the jury to evaluate whether a witness was an accomplice if the trial evidence and testimony create a triable issue of fact on the issue, and it must instruct the jury that the witness was an accomplice as a matter of law if the evidence establishes that fact. (People v. Zapien (1993) 4 Cal.4th 929, 982; People v. Snyder (2003) 112 Cal.App.4th 1200, 1219 (Snyder).) "In either case, the trial court also must instruct the jury, sua sponte, '(1) that the testimony of the accomplice witness is to be viewed with distrust [citations], and (2) that the defendant cannot be convicted on the basis of the accomplice's testimony unless it is corroborated.' " (People v. Zapien, supra, at p. 982.)
The evidence in this case was insufficient to establish a triable issue whether Moneyhun was an accomplice. (Snyder, supra, 112 Cal.App.4th at p. 1219.) It was defendant's burden to establish by a preponderance of the evidence that Moneyhun was an accomplice whose testimony required corroboration. (People v. Williams (1997) 16 Cal.4th 153, 247.) In order to prove that Moneyhun was an accomplice whose testimony required corroboration, defendant was required to show that Moneyhun "was chargeable as a principal--not merely as an accessory [after the fact]--with having committed the identical offense charged against defendant himself." (Snyder, supra, at pp. 1219-1220.) There was no evidence whatsoever that Moneyhun was the actual perpetrator of the murder. Contrary to defendant's assertion, Moneyhun was not a member of defendant's gang, SJU. He was not a participant in SJU's debates about disciplining Cabrera. He had no apparent motive to care what SJU did with its miscreants. He was no more than an eavesdropper. There also was no evidence to suggest that he was an aider and abettor. At most, there was some evidence that Moneyhun was aware of, but not that he shared, defendant's criminal purpose, and there was no evidence that he promoted, encouraged, or assisted defendant in committing his crimes. (Cf. People v. Sully, supra, 53 Cal.3d at p. 1227; Snyder, supra, at p. 1220.) That there was evidence that Moneyhun was an accessory after the fact for taking and sanitizing the bat is insufficient to show that Moneyhun was chargeable as a principle.
TEN-YEAR GANG ENHANCEMENT
The trial court imposed a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), which provides: "Except as provided in paragraphs (4) [life terms for certain enumerated felonies] and (5) [minimum parole eligibility for life terms], any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
Defendant argues that the enhancement was unauthorized because he was sentenced to life without the possibility of parole. He relies on section 186.22, subdivision (b)(5), which provides: "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." He also relies on People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), in which the Supreme Court held that a defendant who commits a gang-related violent felony that is punishable by life imprisonment is not subject to the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) but, rather, is subject to a minimum parole eligibility term of 15 years under section 186.22, subdivision (b)(5). (Lopez, supra, at p. 1010.)
Lopez is distinguishable from the present case. In Lopez, the defendant was sentenced to a term of 25 years to life for first degree murder (Lopez, supra, 34 Cal.4th at p. 1005), whereas, defendant here was sentenced to life without the possibility of parole for special circumstance first degree murder. It would make no sense and would serve no purpose to include a minimum parole date on such a term. The purpose of sentencing the defendant to additional enhancements, such as the 10-year gang enhancement, is to protect against the eventuality that the defendant's sentence might one day be reduced on direct appeal or habeas corpus. (See, e.g., People v. Garnica (1994) 29 Cal.App.4th 1558, 1564.)
Moreover, our Supreme Court has twice suggested, albeit in dicta, that the minimum parole eligibility provision was never intended to apply to persons sentenced to life without parole. In Lopez, the Supreme Court examined the history of the California Street Terrorism Enforcement and Prevention Act (STEP Act) and noted that a 1988 enrolled bill report which analyzed the financial impact of the provision stated: " ' "This proposed provision relating to life terms [former section 186.22, subdivision (b)(3), now section 186.22 [subdivision] (b)(5)] would apply to all lifers (except life without possibility of parole)." ' " The court concluded that, "at the time the STEP Act was enacted, the predecessor to section 186.22 [subdivision] (b)(5) was understood to apply to all lifers, except those sentenced to life without the possibility of parole." (Lopez, supra, 34 Cal.4th at p. 1010.) Similarly, in People v. Montes (2003) 31 Cal.4th 350, the court examined in detail the 1988 enrolled bill report, which summarized the terms that would be affected by what is now section 186.22, subdivision (b)(5), and noted that the terms of first degree murder would be affected only when there were no special circumstances. (People v. Montes, supra, at p. 358, fn. 10.)
Because a term of life without parole contains no anticipated parole date, it would be anomalous to include a minimum parole date on such a term. Accordingly, we conclude the trial court properly imposed the 10-year enhancement under section 186.22, subdivision (b)(1)(C).
PAROLE REVOCATION FINE
The trial court imposed a $10,000 parole revocation fine pursuant to section 1202.45. (See § 1202.45 ["[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount."].) Because defendant was properly sentenced only to an indeterminate term of life without the possibility of parole, and not to any determinate terms, imposition of a parole revocation fine is not proper. (See People v. Carr (2010) 190 Cal.App.4th 475, 482, fn. 6; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1097; see People v. Brasure, supra, 42 Cal.4th at p. 1075.)
DISPOSITION
The judgment is modified to strike the parole revocation fine. As so modified, the judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.