Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SCR007731A of Madera County. Charles A. Wieland, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury found Ryan Joseph James guilty of first-degree burglary, two counts of first-degree robbery in concert, and two counts of assault with a deadly weapon during a home invasion in Oakhurst. On appeal, he argues two instructional issues, a prosecutorial misconduct issue, and cumulative prejudice. We reverse the judgment as to one of the assault with a deadly weapon counts but otherwise we affirm the judgment.
FACTUAL BACKGROUND
Just after midnight on November 15, 2007, Jacob Langley (known as “Jake”), wearing a hooded sweatshirt and a bandana as a mask and holding a knife, walked through the open door of Ben Myers’s Oakhurst apartment, where Myers and his fiancée Vanessa Guiliacci were watching television. Myers and Guiliacci started laughing. She recognized Langley as a “family friend” and said to him, “What are you doing? Why are you joking around? Come sit down. And smoke a bowl.” Hard on his heels, James (known as “Joe”), wearing a hooded sweatshirt and a bandana as a mask, holding a three-foot-long 10-to-15-pound metal stake, and sporting a fresh mark like a teardrop near his eye, walked in.
Langley put a knife to Myers’s throat and demanded money and marijuana. James locked the door behind him and demanded money and marijuana. Having seen Langley and James around town from time to time, bought an ounce of marijuana from James at the apartment three days earlier, and smoked marijuana with James at the apartment before, Myers recognized both of them. “Joe James, sit down,” Myers said. “Jake, Joe, come sit down and chill,” he said. Guiliacci recognized James as “one of the people that would deal pot to us.” She described “a distinctive thing about his eyes” even though his face and his nose were covered. Myers described James’s eyes as “piercing,” “hollow,” and “almost dead.” Myers and Guiliacci were 100 percent sure of James’s identity.
Right after Myers addressed Langley and James by name, James hit Myers with the metal stake on the calf, the arm, the shoulder, and finally the leg, which fractured. Guiliacci grabbed a three-foot 20-to-25 pound tractor wrench from beneath a table and, using the full weight of her body, hit James three times on the back with the wrench as if she were “chopping wood” with an ax. He fell to the floor. “Calm her down,” James told Myers, while Langley tackled her and choked her with his forearm.
Myers saw Guiliacci turning purple and “slobber” coming out of her mouth. He ran outside and pounded on his next-door neighbor’s door, but James pursued him outside, so he ran around the corner into the darkness and crouched down. As James ran back toward the apartment, Myers saw Guiliacci chasing and yelling at James and Langley as they ran to a parked car that took them away. Hundreds of dollars, a jar of marijuana containing one-and-one-half ounces of marijuana, and Myers’s cell phone were taken in the robbery.
Initially, Guiliacci got James’s and Joe Hand’s names confused, thinking “Joe Hand was the one with the long hair, and Joe James was the one with the short hair,” and told a deputy sheriff Joe Hand was one of the assailants, but later, when asked, “The one with the short hair?,” she replied, “No, the one with the long hair,” and when she found out Joe James was the one with the long hair she said he, not Joe Hand, was one of the assailants. Police officers asked Myers several times who the assailants were. As he kept saying, “Joe James and Jake Langley,” they kept asking him, “Are you sure it wasn’t Joe Hand?” and he kept saying, “Yes, I’m sure.”
PROCEDURAL BACKGROUND
On January 17, 2008, the district attorney filed an information that, as amended, charged James with the commission of seven felonies on November 15, 2007:
Count 1: First-degree robbery in concert of Myers in an inhabited dwelling (Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A));
Later statutory references are to the Penal Code except where otherwise noted.
Count 2: First-degree robbery in concert of Guiliacci in an inhabited dwelling (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A));
Count 3: Dissuading a witness (Myers) by threat of force (§ 136.1, subd. (c)(1));
Count 4: Dissuading a witness (Guiliacci) by threat of force (§ 136.1, subd. (c)(1));
Count 5: First-degree burglary of the inhabited dwelling of Myers (§§ 459, 460, subd. (a));
Count 6: Assault with a deadly weapon (large metal stake) on Myers (§ 245, subd. (a)(1)); and
Count 7: Assault with a deadly weapon (large metal stake) on Guiliacci (§ 245, subd. (a)(1)).
Additionally, the information alleged a conviction of arson as a serious-felony prior (§§ 451, subd. (c), 667, subd. (a)(1), 1192.7, subd. (c)(14)) within the scope of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a conviction of assault with a deadly weapon as a prison-term prior (§§ 245, subd. (a)(1), 667.5, subd. (b)), and, as to each count, infliction of great bodily injury on Myers (§ 12022.7, subd. (a)).
On July 18, 2008, James conditionally admitted the serious-felony-prior and prison-term-prior allegations. On July 21, 2008, a jury found him guilty of both counts of first-degree robbery, both counts of assault with a deadly weapon, and one count of first-degree burglary, found the great-bodily-injury allegations true as to each of those counts, and found him not guilty of both counts of dissuading a witness.
On August 28, 2008, the court imposed an aggregate sentence of 31 years – 18 years (the nine-year aggravated term doubled) for the first-degree robbery of Myers plus a term of three years for the great-bodily-injury enhancement, four years (one-third the six-year midterm doubled to 12 years) consecutively for the first-degree robbery of Guiliacci, five years for the serious-felony prior, and one year for the prison-term prior – and stayed the imposition of sentence on all other counts.
The court revoked probation and imposed an additional consecutive term of one year and four months (one-third the middle term) on the serious-felony prior (arson) plus one year on the assault-with-a-deadly-weapon prison-term prior for an overall aggregate sentence of 33 years and four months.
ISSUES ON APPEAL
On appeal, James argues that (1) the court’s failure to instruct sua sponte on the jury’s duty to determine whether Hand was an accomplice was prejudicial error, (2) the court’s failure to instruct sua sponte on the requirement of unanimity for the assault with a deadly weapon charge against Guiliacci was prejudicial error, (3) the prosecutor’s suggestion during cross-examination of a defense witness that James was a probationer with a no-alcohol term was prosecutorial misconduct, and (4) the cumulative effect of errors at trial was prejudicial.
DISCUSSION
1. Accomplice Instruction
James argues that the court’s failure to instruct sua sponte on the jury’s duty to determine whether Hand was an accomplice was prejudicial error. The Attorney General argues the contrary.
The crux of James’s argument is that the prosecutor relied on Hand’s testimony that James was one of the men who robbed Myers and Guiliacci but that Hand was an accomplice. The Attorney General counters that James’s theory of Hand’s guilt as an accomplice was highly speculative and that any instructional error was harmless since both Myers and Guiliacci corroborated Hand’s testimony implicating James and Langley in the robberies.
The rule is settled that the court has a sua sponte duty to instruct on the law of accomplices, including the need for corroboration, if the evidence at trial suggests that a witness could be an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331.) Here, James argues, the court had a sua sponte duty to instruct more or less by modifying the language of CALCRIM No. 334 (“Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice”) as follows:
“Before you may consider the statement or testimony of Joe Hand as evidence against the defendant regarding the crimes with which he is charged, you must decide whether Joe Hand was an accomplice to those crimes. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if:
“1. He or she knew of the criminal purpose of the person who committed the crime; and
“2. He or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime.
“The burden is on the defendant to prove that it is more likely than not that Joe Hand was an accomplice.
“An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he or she is present at the scene of a crime, even if he or she knows that a crime will be committed or is being committed and does nothing to stop it.
“A person may be an accomplice even if he or she is not actually prosecuted for the crime.
“If you decide that Joe Hand was not an accomplice, then supporting evidence is not required and you should evaluate his statement or testimony as you would that of any other witness.
“If you decide that Joe Hand was an accomplice, then you may not convict the defendant based on his statement or testimony alone. You may use the statement or testimony of an accomplice to convict the defendant only if:
“1. The accomplice’s statement or testimony is supported by other evidence that you believe;
“2. That supporting evidence is independent of the accomplice’s statement or testimony; and
“3. That supporting evidence tends to connect the defendant to the commission of the crimes.
“Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crimes, and it does not need to support every fact mentioned by the accomplice in the statement or about which the accomplice testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
“The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice.
“Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”
The parties agree that the evidence “showed that Joey Hand drove the car that brought the two robbers to the complex in which the robbery occurred” and that the theory on which James “bases his argument” is that “Hand aided and abetted the robbery by acting as the getaway driver.” The Attorney General focuses on Langley’s testimony that he and James “concealed from Hand the weapons and implements they used in the robbery until after they had committed the crimes,” emphasizes that “there was no evidence that Hand knew of the robbery plan in advance,” and argues that the fact he drove James and Langley to the scene of the crimes “does not make him an accomplice.”
At trial, Hand testified that he drove James, Langley, and Clancy Williams to Myers’s apartment to “pick up some marijuana,” that James and Langley left the car but came back three or four minutes later, saying, “Go, go, go. Get in the car, and let’s go,” and that Hand, who admitted drinking alcohol and smoking marijuana that day and who characterized himself as dumbfounded and intoxicated, drove everyone back to his house. Hand testified he “knew something was going on” but insisted he had “no comprehension of nothing going wrong” and denied he had asked James or Langley any questions. Back at his house, he testified, “Everybody kind of split up, went their own ways, said good night and whatnot.”
James argues that Hand’s testimony that everyone split up and went their own ways was impeached by the first deputy sheriff to arrive there, who testified he saw Hand, James, and Langley inside the house. He testified, however, that by the time other deputy sheriffs arrived there Hand, James, and Langley were already “off in the brush” yelling at officers and refusing to come out. James argues that the deputy sheriff’s testimony “required an instruction telling the jury to determine whether Hand was an accomplice” since his “denial of involvement in the criminal activity lacked credibility.” He characterizes a finding by the jury that Hand “lied about his participation and was criminally involved” as “likely” had the court given an accomplice instruction. His argument is not persuasive. Hand’s testimony that everyone split up and went their own ways was just as likely a reference to events “off in the brush” after the arrival of deputy sheriffs at the house as to events inside the house before their arrival.
James argues, too, that Hand’s “claim of memory loss” due to intoxication was “convenient” since explaining the “substantial” and “visible” robbery preparations such as James’s and Langley’s grabbing bandanas, hooded sweatshirts, and weapons “would have been extremely difficult for him.” First, a paucity of citations to “volume and page number of the record” showing any such difficulty betray the conjectural nature of his argument. (Cf. Cal. Rules of Court, rules 8.204(a)(1)(C), 8.360(a).) Second, the record shows Langley testified that he and James “went back into the trunk to grab everything out to go do what we were going to do” after Hand “popped the trunk” from the driver’s seat, that Hand asked no questions, and that Langley considered Hand’s behavior normal for a driver when someone in a car wants something from the trunk. Third, James’s argument makes no mention of the implicit difficulties of a person in the driver’s seat observing the activities of passengers behind an open trunk lid. That Hand saw nothing was just as likely as that he saw James and Langley engaging in robbery preparations.
James has the burden of proof by a preponderance of the evidence that Hand was an accomplice whose testimony required corroboration. (People v. Williams (1997) 16 Cal.4th 153, 247 (Williams).) Since Hand’s testimony is not necessarily inconsistent with the deputy sheriff’s testimony, and since the absence of detail in his testimony about James’s and Langley’s activities behind an open trunk lid was as likely authentic as “convenient,” James fails to meet his burden.
Assuming, without deciding, an accomplice instruction was required, James suffered no prejudice. Corroborating evidence – even if slight, entirely circumstantial, and incapable of establishing every element of the charged offense – that tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth is sufficient. (Williams, supra, 16 Cal.4th at p. 246.) A court’s error in failing to so instruct is harmless if sufficient evidence in the record corroborates the accomplice’s testimony. (People v. Lewis (2001) 26 Cal.4th 334, 370 (Lewis).) The testimony of both Myers and Guiliacci corroborated Hand’s testimony implicating James and Langley in the robberies.
Section 1111 provides, in relevant part: “A conviction can not 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.”
Additionally, the court instructed the jury, “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (CALCRIM No. 105.) The court informed the jury, “You alone must judge the credibility or believability of the witnesses,” and, “You may believe all, part, or none of any witness’s testimony.” (Ibid.) The court specifically cautioned the jury to consider whether a witness’s testimony was “influenced by a factor such as bias or prejudice” or by “a personal interest in how the case is decided.” (Ibid.)
James argues that the federal standard of review applies (Chapman v. California (1967) 386 U.S. 18, 24), and the Attorney General argues that the state standard of review applies (People v. Watson (1956) 46 Cal.2d 818, 836), but since the record persuades us that error, if any, was harmless by both standards of review, we need not address the disagreement between the parties about which standard applies.
2. Unanimity Instruction
James argues that the court’s failure to instruct sua sponte on the requirement of unanimity for the assault with a deadly weapon charge against Guiliacci was prejudicial error. The Attorney General argues the contrary.
The district attorney filed three charging documents – an information, a first amended information, and a second amended information – all of which charged James with “assault upon Vanessa Guiliacci with a deadly weapon, to wit, a knife.” (Italics added.) Later, out of the presence of the jury, the court allowed the prosecutor to amend the information:
“[PROSECUTOR]: Your Honor, I believe that in the last Count Seven, that the People wanted to amend, instead of its reading ‘a knife’ to just read ‘a large metal stake.’
“I’m going to – People’s theory is that she was assaulted with a stake. When she was sitting next to him, he came forward, and then she went to the couch – on to the bed, and stood in the corner.
“THE COURT: Any objection?
“[JAMES’S ATTORNEY]: No. I think that’s correct, your Honor.
“THE COURT: Okay. Then I’ll make that modification.”
In his opening statement, the prosecutor informed the jury, “At the end of this trial, you will be asked to find the defendant guilty of several crimes,” among which were “two counts of assault with a deadly weapon for both the use of the knife and for use of the stake because he worked in concert with his co-defendant.” At the end of the trial, he articulated in his argument to the jury his theory about those charges (italics added):
“Finally, the defendant is charged in Count Six and Count Seven with assault with a deadly weapon. In order for me to prove that first off, he did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person.
“You go into a strange – I can’t say ‘stranger’ because he knew him. You go into somebody’s house with a mask on and a hood on and you come in and you lock the door and you approach them with a stake, that could definitely, directly, and probably result in the application of force. Because you’re sending a message to that person they’re about to get it.
“And you, as a victim, a person that’s a victim, when they sit there and they’re getting swung at by this weapon, you need to take steps to defend yourself. Force is going to happen. There’s – by that action of taking out and approaching someone with this – a weapon like this, trying to hide your identity to them, that’s the assault that we’re talking about.
“Now, Ben Myers, it was even worse. With Ben Myers he actually got hit. And he got hit hard and he got hit a lot. This was no accident. This isn’t a trick-and-treat thing that went bad. This was an intent to wreak havoc on Ben’s body. As soon as Ben called him out on who he was, he paid the price for that.
“When he acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. If you go up to someone with a weapon and you raise it and you brandish it and you start demanding their stuff, you start demanding their money, you should know. He was aware. We also know he was aware because he followed out on that action, continued that force with Ben.
“When the defendant acted, he had the present ability to apply force with a deadly weapon to a person. He not only had the present ability, he did so.
“Vanessa was so scared by the assault that when he came to her, she got up. And where did she go? She got up, and she got on the bed and stood in the corner. Jacob said she was cowering in the corner. They told her to sit down. Because she was afraid of what was going to happen. She was afraid of being assaulted by the stake.” [¶] … [¶]
“They [Myers and Guiliacci] were sitting here (pointing). They [Langley and James] came in and approached. She bugged out. She got away from him as quickly as she could. And that’s because she did not want to get hit by that stake, and she thought it was going to happen.
“When Jake Langley tackled her and had that knife, that also was an intent [sic] with a deadly weapon, to wit, the knife.”
The verdict form for the assault with a deadly weapon against Guiliacci showed, in hand-printed letters above a blackened area that presumably used to read “a knife,” that the weapon at issue in that count was “a large metal stake”:
“We, the jury in the above entitled matter, find the defendant, Ryan Joseph James, guilty of assault with a deadly weapon, a large metal stake, against Vanessa Guiliacci, a violation of section 245(a)(1) of the Penal Code of the State of California as charged in Count Seven of the Complaint on file herein.” (Italics added.)
Even so, James argues that the verdict form “did not provide the jury with formal notice that the prosecutor had elected to rely on an attack with a metal stake as the basis for count seven.” (Italics added.) The Attorney General does not argue the contrary.
On that state of the briefing, the parties tacitly agree that the jury was not otherwise informed that a large metal stake was the sole weapon at issue in the assault with a deadly weapon against Guiliacci. In light of the prosecutor’s argument that James’s use of a knife or Langley’s use of a large metal stake could warrant a guilty verdict on that count, the court’s failure to instruct sua sponte on the requirement of unanimity was prejudicial error. “If a jury (as here) is permitted to amalgamate evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt to all of the jurors required to agree on the verdict, the prosecution’s burden is lessened and defendant is denied due process.” (People v. Smith (2005) 132 Cal.App.4th 1537, 1545 (Smith).) That is so here. We reverse the judgment as to that count.
“In this state it is a state constitutional requirement that when a felony is charged, the jury consists of 12 jurors and the verdict must be unanimous. (Cal. Const., art. I, § 16; People v. Mickle (1991) 54 Cal.3d 140, 178.)” (Smith, supra, at p. 1545, fn. 8.)
3. Cross-Examination of Defense Witness
James argues that the prosecutor’s suggestion during cross-examination of a defense witness that James was a probationer with a no-alcohol term was prosecutorial misconduct. The Attorney General argues the contrary.
Christy Echibani, a defense alibi witness, testified she was playing cards with James until around midnight on the night of the charged offenses. She testified that nobody at the table playing cards with her was drinking. On cross-examination, the prosecutor inquired, “And how close are you with Joe James?” She replied, “I knew him for a few months. He was my boyfriend’s cousin.” The prosecutor asked her, “And did you – did you know he was on probation at the time?” She answered, “No.” The prosecutor inquired, “And did you know that one of his terms of probation was not to be drinking alcohol?” She replied, “No,” adding, “I didn’t have a very close, personal relationship with him. He was the cousin of my boyfriend.” At the conclusion of her testimony, the court and counsel had a sidebar out of the presence of the jury.
After the jury left for lunch, the court allowed counsel to make a record of the sidebar. On the theory that Echibani’s alibi testimony was a lie, the prosecutor argued that evidence of James’s status as a probationer with a no-alcohol term was relevant on the issue of credibility. “Even accepting that at face value,” the court ruled the evidence inadmissible on an Evidence Code section 352 analysis.
Acknowledging that he “should have been quicker to object,” James’s attorney asked the court to admonish the jury. The court agreed. During instructions to the jury before the commencement of deliberations, the court stated, “Additionally, a question was asked that suggested that defendant may have been on probation subject to certain limitations. Please do not consider such a suggestion when deciding this case. It should have no bearing on your deliberations.”
James argues that the prosecutor’s questions “amounted to misconduct” and that the court’s admonition “failed to cure the error.” We disagree. A prosecutor “‘who uses deceptive or reprehensible methods to persuade the jury commits misconduct.’” (People v. Friend (2009) 47 Cal.4th 1, 29.) Even if the prosecutor’s relevance theory failed Evidence Code section 352 scrutiny, the two questions he asked Echibani were hardly deceptive or reprehensible.
Besides the admonition specifically addressing the two questions the prosecutor asked Echibani, the court instructed, “Nothing that the attorneys say is evidence,” “Their questions are not evidence,” “Only the witnesses’ answers are evidence,” and “Do not assume that something is true just because one of the attorneys asks a question that suggests it is true.” (CALCRIM No. 104.)
Additionally, evidence that James was an ex-convict was in the record. After admitting his fear of getting caught after police arrived at Hand’s house, Langley testified that James told him “to get out of here. And how he had already gone to prison, that he would be okay if he was in there. And for me to just get out of here because this is the first time I’ve been in a situation like this.”
Since Echibani answered both questions in the negative, the jury already knew James was an ex-convict, and the court abundantly instructed the jury to disregard the suggestion implicit in those questions that James “may have been on probation subject to certain limitations,” the presumption applies “that the jury followed the admonition and that prejudice was therefore avoided.” (People v. Bennett (2009) 45 Cal.4th 577, 595.)
4. Cumulative Error
James argues that the cumulative effect of errors at trial was prejudicial. The Attorney General argues the contrary. We agree with the Attorney General. After assuming, without deciding, that an accomplice instruction was required, we concluded that error, if any, was harmless beyond a reasonable doubt. After determining that the court’s failure to instruct sua sponte on the requirement of unanimity for the assault with a deadly weapon charge against Guiliacci was prejudicial error, we reversed the judgment as to that count. On that record, there is no cumulative error for James to argue. (People v. Bradford (1997) 14 Cal.4th 1005, 1057.) “A defendant is entitled to a fair trial but not a perfect one.” (Lutwak v. United States (1953) 344 U.S. 604, 619.) James received the fair trial to which he was entitled.
DISPOSITION
Solely as to the count 7 assault with a deadly weapon charge against Guiliacci, the judgment is reversed and the matter is remanded with directions to the court to issue, and to send to each appropriate person a certified copy of, an appropriately amended abstract of judgment. James has no right to be present at that proceeding. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) Otherwise the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Wiseman, J.