Opinion
F084341
10-02-2023
THE PEOPLE, Plaintiff and Respondent, v. DERICK PATEL, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF415245A Glade Roper, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
In 2021, Richard Sanchez was shot to death while sitting in the front passenger seat of a car. The bullet passed through Richard's neck and it struck the driver of Richard's car. Unlike Richard, the driver survived.
More than one person in this matter has the last name of Sanchez. To avoid confusion, we refer to these individuals by their first name.
In 2022, a jury convicted appellant Derick Patel of first degree murder for Richard's death (Pen. Code, § 187, subd. (a); count 1). The jury also convicted appellant of assault with a firearm for the bullet that struck the driver (§ 245, subd. (a)(2); count 3). Finally, the jury convicted appellant in two counts of attempting to dissuade witnesses (§ 136.1, subd. (b)(1); counts 5 &6). Appellant received an aggregate determinate sentence of three years eight months for the assault with a firearm and attempting to dissuade the witnesses. He also received a consecutive indeterminate prison term of 25 years to life for Richard's murder.
All future statutory references are to the Penal Code unless otherwise noted.
It appears the jury convicted appellant as an aider and abettor for his role in this fatal shooting. The jury did not find true that appellant personally discharged the firearm that killed Richard and struck the driver, and the jury found it not true that appellant personally caused great bodily injury to the driver. In addition, the jury acquitted appellant of both discharging a firearm at an occupied motor vehicle (§ 246; count 2) and shooting from a motor vehicle (§ 26100, subd. (d); count 4).
In the present appeal, appellant raises eight claims, and some of his assertions have merit. The evidence is insufficient to support the convictions in counts 5 and 6 for appellant's attempt to dissuade witnesses. We reverse those convictions and vacate appellant's sentence. We further agree that instructional error occurred regarding the issue of appellant's malice as an aider and abettor for Richard's murder. This record, however, overwhelmingly demonstrates that the instructional error was harmless. We remand this matter for resentencing but otherwise affirm the judgment, including the conviction for first degree murder.
BACKGROUND
We summarize the material trial facts that support the judgment. We provide additional details later in this opinion when relevant to the issues raised.
I. The Fatal Shooting.
This fatal shooting occurred just before midnight on July 28, 2021. It is undisputed that Richard Sanchez was killed by a single shot fired from a vehicle. Richard had been the front passenger in a car that was stopped at a red light in Visalia, California. A Mitsubishi Lancer was stopped adjacent to Richard at the same light. The Lancer was on Richard's right side. The single shot was fired from the adjacent Lancer.
The bullet passed through Richard's neck and struck the driver of Richard's car. The driver survived the shooting, but doctors were unable to remove the bullet. Richard, however, was pronounced dead shortly after being shot through his neck. Two other passengers were sitting in the back seat behind Richard and the driver when the single shot was fired.
II. The Testimony from Eliazar Guerra.
At trial, Eliazar Guerra testified against appellant under a grant of immunity. Appellant and Guerra were originally charged together as codefendants in this matter. Their cases were bifurcated in advance of the preliminary hearing and appellant was tried alone. Guerra was facing a murder charge for Richard's death when he testified against appellant.
Guerra is appellant's second cousin. Guerra had a prior felony conviction for a drug-related offense in Texas, and he had been incarcerated there. Guerra relocated to California in October 2020. He lived with appellant for about six or seven months. He then moved to a house in Tulare and appellant paid his rent.
Guerra told the jury that he had been the driver in this fatal shooting, and the Lancer was his vehicle. According to Guerra, appellant had been the passenger in the Lancer, and it had been appellant's idea to attack the victims. Guerra testified that appellant had provided the firearm, and appellant had been the shooter. Guerra explained that appellant had fired his handgun through the open driver's side window of the Lancer and into the victim's car, which had been adjacent to them at the red light.
According to Guerra, appellant had initially wanted him to be the shooter, but Guerra had refused to touch the firearm when appellant tried to hand it to him. Appellant kept the firearm and he directed Guerra to drive. Guerra stopped the Lancer at the red light and appellant directed him to drive forward a little more so appellant could have a better shot at the victims in the adjacent car. Guerra inched forward and stopped. Appellant then fired.
During closing argument, the prosecutor noted that video of the shooting showed the Lancer stopping, moving forward a little, and then the shot was fired. According to the prosecutor, this video, along with other circumstantial evidence, corroborated Guerra's version of events.
III. The Motive for this Shooting.
Before this fatal night, neither appellant nor Guerra knew the victims. Earlier in the same evening, appellant and Guerra had been at a nearby bowling alley with their respective girlfriends. Appellant was planning on flying to Texas the following morning to attend his daughter's birthday party.
Richard's group of four males bowled adjacent to appellant's group. During the evening inside the bowling alley, appellant's girlfriend, Nina Sanchez, came to believe that someone had stolen her wallet, which was missing. Appellant and Nina suspected that the culprit was someone in the group of four males bowling next to them. A dispute arose regarding the missing wallet. Appellant spoke with some of the four males next to them. They denied knowing anything about Nina's missing wallet.
Appellant and Nina left the bowling alley. About 20 minutes later, appellant sent a message for Guerra to go out to the parking lot and Nina came back inside the bowling alley. Once outside, Guerra found appellant sitting inside his (Guerra's) Lancer and appellant had a firearm. Appellant had changed his clothes. Appellant indicated that Nina was going to call law enforcement about her missing wallet and, if the police did not do anything, appellant was not going to let the situation "slide" and he was going to do "something about it."
The jury heard fairly lengthy evidence regarding the chronology of events after the dispute with the wallet occurred inside the bowling alley. A camera across the street from appellant's house captured some of the movements that Guerra described, such as appellant driving home to apparently retrieve his firearm, and appellant and Guerra later driving back to appellant's house before the shooting as they worked out which vehicle to use for this attack. During closing argument, the prosecutor asserted that all of the evidence corroborated Guerra's version of events.
Nina summoned law enforcement, and two police officers separately arrived at the bowling alley a little after 11:00 p.m. The officers conducted a short investigation and they spoke with the four males. One of the officers reviewed surveillance footage from the bowling alley. The officers were unable to determine if anyone had taken Nina's wallet. As a result, the officers informed Nina that there was nothing they could do and the four males were free to leave.
Nina was upset that the officers were not going to do anything about her missing wallet. She expressed concern to the officers that the four males had her address and she was afraid that they might sexually assault her. While outside the bowling alley, Nina was yelling at the four males and acting "crazy." The officers directed the four males to leave the area.
A day or two after this fatal night, an employee at the bowling alley found the missing wallet in the men's restroom. Nina's wallet still had money inside it. The wallet was turned over to the authorities. It is unknown who left the wallet in the bathroom, which had been searched on the night of the fatal shooting.
According to Guerra, he and appellant were parked around the corner of the bowling alley while Nina was speaking with the officers. It is undisputed that, while the officers were conducting at least part of their investigation, Nina was speaking on her cell phone with appellant. The record demonstrates that appellant's cell phone had died earlier that evening and appellant was using Guerra's phone to speak with Nina regarding the situation involving her missing wallet. Appellant heard Nina on the telephone yelling at the officers and the four males.
When Richard and his group drove away from the area, Nina texted directions to appellant (again through Guerra's telephone) regarding the direction and location of the car in which Richard and the other three males were riding. Nina's texts regarding the direction and movement of the victims were sent at 11:56 p.m. Less than a minute later, Guerra and appellant were stopped at a red light adjacent to the four males and the fatal shot was fired from Guerra's vehicle. At 11:58 p.m., the first 911 call came in reporting the need for medical assistance.
A single eyewitness heard the fatal shot and he saw Guerra's vehicle speeding away. The eyewitness only saw one person in Guerra's vehicle, the driver. The eyewitness denied seeing a passenger inside the vehicle that delivered the fatal shot. The eyewitness admitted it was very dark when this occurred, and Guerra's vehicle was driving away at a high rate of speed.
IV. Appellant and Guerra were Arrested Together.
Appellant and Guerra fled in Guerra's Lancer. At about 1:30 a.m., that same night, they met their girlfriends outside a gas station in Traver, California. Nina brought appellant's two dogs to him. According to Guerra, appellant told Nina that he (appellant) had shot someone in the head.
Appellant and Guerra then drove to Fresno, California, spending the rest of the night at a motel. Later that day they drove to Bakersfield, California, in Guerra's Lancer. They were arrested together in Bakersfield that afternoon (the day after this shooting).Appellant had his two dogs with him. Law enforcement never recovered the firearm used in this fatal shooting.
Before he fully cooperated with authorities, Guerra initially admitted to law enforcement that he had driven the Lancer used in this fatal shooting, but Guerra would not identify the shooter.
According to Guerra, he and appellant had stopped at a particular residence shortly after this shooting, and appellant had left the firearm inside that residence with someone who was acquainted with appellant.
V. Appellant Lies to Law Enforcement.
Shortly after appellant was arrested, he was interviewed by the lead detective in this matter. The interview was recorded and played for the jury. At the very start of the interview, appellant was told to be honest. After a pause, and without prompting, appellant stated that he "did not steal the purse." After being read his rights, appellant said he hoped they did not think he "stole that purse."
Appellant admitted that Nina was his girlfriend. He acknowledged he had been involved with the four males at the bowling alley regarding Nina's missing wallet. However, he claimed he had left the bowling alley shortly after that dispute arose and he went home. He admitted that he was talking to Nina while she was "screaming" and yelling at the officers or other people. Nina was "pissed off."
According to appellant, after he went home he started walking with his two dogs and he went to a particular residence, where he spent the night. Appellant claimed that Guerra picked him up the following morning at that residence. Appellant indicated he had no other connection with the bowling alley.
After being confronted that he had met Nina in Traver in the early morning hours, appellant admitted that he met her at about 2:00 a.m., but he claimed Nina only brought her own dog to Traver. Appellant told the detective that he went to Fresno in an attempt to make his flight to Texas, but he did not have his identification. He then claimed he drove to Bakersfield in an attempt to fly to Texas. According to appellant, airport officials in Bakersfield would allow him to board an airplane without his identification if he underwent additional security steps.
The jury learned that Nina had appellant's identification with her when she was arrested early in the morning following this fatal shooting.
The trial court denied a motion for new trial. In part, the court wrote in its denial order that appellant's claim was "not believable" that he would be allowed to board an airplane in Bakersfield without identification.
Appellant told the detective that he was not guilty of anything. The interview ended after he wanted an attorney.
At trial, the prosecutor established that appellant lied to the detective. It would have taken appellant about 90 minutes to walk to the alleged residence where Guerra supposedly picked him up, and cell phone records established that appellant's version of events could not have happened. Appellant was recorded with Guerra in Traver at 1:30 a.m. meeting their girlfriends. Contrary to appellant's claim to the detective, appellant did not have his dogs with him until he met Nina in Traver.
VI. The Disputed Expert Opinions Surrounding the Muzzle Flash.
A camera from a business recorded the shooting, but the recording was of poor quality. At trial, the defense elicited testimony from a firearms expert who opined about the location of the muzzle flash seen in the recording. Based on the recording that captured part of the shooting, the defense expert believed the muzzle flash did not originate inside Guerra's vehicle but outside his driver's side window. The defense expert was 100 percent certain that the muzzle flash had occurred outside Guerra's vehicle, and Guerra's version of the shooting was "not feasible." The defense expert also noted that law enforcement's inability to find the expended shell casing suggested that the gun had been fired outside the vehicle, and the casing had landed on the hood of Guerra's vehicle, near the windshield wipers.
Guerra had told the jury that, after this shooting, he and appellant had looked for the expended shell casing inside his Lancer, but they were unable to find it.
In contrast, the prosecution offered a rebuttal expert, Curtis Brown, who disputed the defense's expert. According to Brown, it was possible that the fatal shot had originated inside Guerra's vehicle and was fired by appellant, who was the passenger. The prosecutor also had the lead detective testify in rebuttal. According to the detective, appellant is five feet 10 inches tall. Based on appellant's height, the detective opined it was possible appellant had fired the gun inside Guerra's vehicle but within a foot and a half from the driver's side window.
DISCUSSION
I. Insufficient Evidence Supports the Convictions in Counts 5 and 6; Those Convictions are Reversed and this Matter is Remanded for Resentencing.
In counts 5 and 6, the jury convicted appellant of dissuading two witnesses from reporting his crime. The witnesses were Guerra's girlfriend, S.Z., and appellant's girlfriend, Nina.
The jury learned that while Guerra was incarcerated for his role in this murder he and S.Z. had become engaged.
In counts 5 and 6, the prosecution charged appellant with violating section 136.1, subdivision (b)(1), a felony. In general, this statute prohibits a person from attempting "to prevent or dissuade" a witness from reporting a crime to law enforcement. (§ 136.1, subd. (b)(1).) With CALCRIM No. 2622, the jurors in this matter were instructed in relevant part that appellant was guilty in counts 5 and/or 6 if he "tried to prevent or tried to discourage" S.Z. and/or Nina "from making a report as a witness to a crime to a peace officer."
According to the online version of Merriam-Webster, the word "dissuade" means "to advise (a person) against something" or "to turn from something by persuasion." (Merriam-Webster Dict. Online (2023) <https://www.merriam-webster.com/dictionary/dissuade> [as of Oct. 2, 2023.].)
The convictions in counts 5 and 6 stemmed from a conversation appellant had with S.Z. and Nina after the fatal shooting. At about 1:30 a.m. that same night, appellant and Guerra met their girlfriends near a gas station in Traver. According to Guerra, appellant explained to the girls during this meeting that, if law enforcement saw them, the girls should say that they did not know the boys and they had barely met them that night. Appellant told Guerra's girlfriend, S.Z., to say that Nina was her best friend and they went out bowling. They had met the boys and Nina had been seeing appellant for a little while. S.Z. was supposed to tell law enforcement that this is how she had met Guerra.
According to S.Z., appellant told her what their "stories were going to be" when they all met near the gas station in Traver. S.Z. claimed that, during this meeting, appellant told her that he had earlier retrieved his gun (a "strap") following the dispute at the bowling alley over the missing wallet. If questioned by law enforcement, S.Z. was supposed to say she had been inside the bowling alley the entire time. S.Z. was not supposed to report that appellant had retrieved his gun. According to S.Z., appellant told Nina during this same meeting that she should report to law enforcement that she had been scared for her safety (i.e., because her wallet had apparently been stolen and the perpetrator(s) had her identity and address).
Appellant contends that, instead of violating section 136.1, subdivision (b)(1), his conduct was really a violation of section 137, subdivision (c). In relevant part, section 137, subdivision (c), makes it a misdemeanor when a person knowingly induces another person to give false material information to a law enforcement official pertaining to a crime, or to withhold true material information from a law enforcement official pertaining to a crime. (§ 137, subd. (c).)
The primary definition of "induce" is "to move by persuasion or influence" or "to call forth or bring about by influence or stimulation." (Merriam-Webster Dict. Online (2023) <https://www.merriam-webster.com/dictionary/induce> [as of Oct. 2, 2023.].)
In contrast, respondent contends that appellant could have violated both sections 136.1 and 137. According to respondent, it is proper to impose felony sentences upon appellant for his conduct in counts 5 and 6.
Appellant has the better argument and we reject respondent's position. Preventing or dissuading a witness from reporting a crime is a more serious offense than the crime of inducing a witness to give false information. The elements differ and the punishments imposed are very different. (Cf. § 136.1, subd. (b)(1) with § 137, subd. (c).) At least one published opinion has already concluded that, because the Legislature has created these statutory distinctions, it is improper to uphold a felony conviction under section 136.1, subdivision (b)(1), if the defendant's conduct instead falls under section 137, subdivision (c), which is a misdemeanor. (People v. Fernandez (2003) 106 Cal.App.4th 943, 950-951.)
We agree with appellant that this record does not establish a violation of section 136.1, subdivision (b)(1). Appellant did not physically attempt to prevent or dissuade either S.Z. or Nina from reporting a crime. Appellant did not threaten these witnesses, and he never told them they should not speak with authorities. Appellant did not instruct them to avoid law enforcement. To the contrary, appellant coached these witnesses regarding what they should say if they were questioned by officers. Indeed, S.Z. testified that appellant told her what their "stories were going to be" when they all met near the gas station in Traver. Appellant's attempt to influence what S.Z. and Nina should report to authorities is not substantial evidence of the felony conduct prohibited in section 136.1, subdivision (b)(1). Instead, efforts to knowingly induce another person to give false information to officers, or to withhold relevant information, is prohibited under section 137, subdivision (c). Appellant's conduct was a misdemeanor violation of section 137, subdivision (c), and not a felony as defined in section 136.1, subdivision (b)(1). Accordingly, the trial evidence in this matter is insufficient as a matter of law to establish a violation of section 136.1, subdivision (b)(1). (See People v. Fernandez, supra, 106 Cal.App.4th at pp. 951-952 [reversing a similar conviction]; People v. Morones (2023) __ Cal.App.5th __ [2023 Cal.App.Lexis 719, at *27] [the defendant's repeated and consistent attempts to get his children to lie to law enforcement regarding their victimization did not constitute a violation of § 136.1, subd. (b)(1)].) Consequently, insufficient evidence supports the felony convictions in counts 5 and 6, and those convictions are reversed. We vacate appellant's sentence and remand this matter for resentencing.
Because insufficient evidence supports the convictions in counts 5 and 6, retrial of those charges is barred based on double jeopardy. (See Lockhart v. Nelson (1988) 488 U.S. 33, 39; see also People v. Seel (2004) 34 Cal.4th 535, 550.)
II. Instructional Error Regarding Murder Occurred but the Error was Harmless Beyond a Reasonable Doubt.
Appellant argues that his conviction for first degree murder must be reversed based on alleged instructional error. He contends that the jury was permitted to convict him of murder without finding that he personally acted with malice aforethought. He asserts that the jury could have based its first degree murder conviction on a legally invalid theory.
We agree that instructional error occurred in count 1, but we reject appellant's position that his first degree murder conviction must be reversed. In addition to Richard's murder, the jury found appellant guilty in count 3 of assaulting the driver with a firearm. The bullet that struck the driver also killed Richard. In convicting appellant, the jury clearly concluded that he was more than a mere passenger in the vehicle. The totality of this record overwhelmingly demonstrates that appellant assisted and encouraged the fatal act that directly caused Richard's death. The evidence also overwhelmingly shows that appellant acted with his own implied malice. As such, it is abundantly apparent that a correctly instructed jury would have nevertheless found appellant guilty of first degree murder for Richard's death. Thus, we can declare beyond a reasonable doubt that the instructional error was harmless.
A. Instructional error occurred.
Murder requires malice aforethought, which is either express or implied. Express malice is an intent to kill. (§§ 187, subd. (a); 188, subd. (a)(1).) Implied malice occurs when a perpetrator (1) intentionally commits an act (or fails to act); (2) the natural and probable consequences of the act were dangerous to human life; (3) at the time he acted, the perpetrator knew his act was dangerous to human life; and (4) the perpetrator deliberately acted (or failed to act) with conscious disregard for human life. (People v. Soto (2018) 4 Cal.5th 968, 974; CALCRIM No. 520.) All murder is in the second degree unless the prosecution establishes beyond a reasonable doubt that the murder should be elevated to one of first degree. (§ 189, subds. (a) &(b); CALCRIM No. 521.)
Our Supreme Court recently clarified that, following elimination of the natural and probable consequences doctrine, a person may still be liable for implied malice murder as an aider and abettor. (People v. Reyes (2023) 14 Cal.5th 981, 990 (Reyes).) An aider and abettor who does not expressly intend to kill can nevertheless be convicted of second degree murder" 'if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.'" (Reyes, supra, at p. 990, quoting People v. Gentile (2020) 10 Cal.5th 830, 850.)
People v. Gentile, supra, 10 Cal.5th 830, was abrogated in part on another ground in Stats. 2021, ch. 551, § 2, which amended section 1172.6, subdivision (g), to expressly allow defendants whose convictions are not final to seek relief on direct appeal. (See People v. Williams (2022) 86 Cal.App.5th 1244, 1252, fn. 9.)
In the present matter, instructional error occurred because the jurors were not informed that, to find appellant guilty of implied malice murder as an aider and abettor, they were required to find that appellant knew his conduct had endangered the life of another and he had acted with a conscious disregard for life. (See Reyes, supra, 14 Cal.5th at p. 990.) Instead, the jury received the standard aiding and abetting instruction under CALCRIM No. 401. The jurors were told that, to be liable as an aider and abettor, appellant had to know that the perpetrator intended to commit a particular crime, and appellant intended to aid and abet the perpetrator in committing that particular crime. Regarding implied malice murder, the jurors were instructed that a perpetrator had to act with a conscious disregard for life when committing an act that was dangerous to human life. Error occurred because the jurors were never instructed that appellant, as an aider and abettor, was required to have his own implied malice for murder. The natural and probable consequences doctrine has been eliminated for aiders and abettors, and malice may no longer be imputed to a person based solely on his participation in a crime. (§§ 188, subd. (a)(3), 1172.6, subd. (a).)
Various appellate courts have already noted that CALCRIM No. 401 is deficient regarding an instruction for an aider and abettor's liability for implied malice murder. (See People v. Langi (2022) 73 Cal.App.5th 972, 982 (Langi); People v. Powell (2021) 63 Cal.App.5th 689, 714 (Powell).) If a trial court uses CALCRIM No. 401 without tailoring it to the specifics of the crime, the instruction creates an ambiguity so that a jury may find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice. (Langi, supra, 73 Cal.App.5th at p. 982.) CALCRIM No. 401 is "not tailored" for a theory of implied malice murder by an aider and abettor. (Powell, supra, 63 Cal.App.5th at p. 714.) An accomplice must aid the perpetrator's commission of the life-endangering act while also personally harboring the mental state of implied malice. (Id. at p. 713.)
Respondent contends that these opinions were wrongly decided and instructional error did not occur. We disagree. Our Supreme Court recently cited Langi and Powell with approval. (Reyes, supra, 14 Cal.5th at p. 990.) Based on our high court's endorsement, we necessarily reject respondent's position that we should disregard Langi and Powell.
This ambiguity in CALCRIM No. 401 was recently discovered because, previously, the natural and probable consequences doctrine was available to establish second degree murder for aiders and abettors, which was far easier to prove. (Reyes, supra, 14 Cal.5th at p. 991; Powell, supra, 63 Cal.App.5th at p. 711, fn. 26.)
Instructional error occurred in this matter because the jurors were not directed to determine if appellant had held his own malice to commit murder as an aider and abettor. The jurors were never told that appellant could be liable for second degree murder as an aider and abettor only if he knew his conduct endangered the life of another and he acted with a conscious disregard for life. (See Reyes, supra, 14 Cal.5th at p. 990; Langi, supra, 73 Cal.App.5th at p. 983 ["to be guilty as a direct aider and abettor of second degree murder, an accomplice must have acted with the mental state of implied malice"].) Because instructional error occurred, we turn to the issue of prejudice.
We encourage the Judicial Council Advisory Committee on Criminal Jury Instructions to formulate a pattern instruction, or include optional bracketed language in CALCRIM No. 401, clarifying the mens rea and actus reus requirements for direct aiding and abetting liability for implied malice murder.
Appellant notes that the prosecutor never discussed aiding and abetting during her closing arguments. Instead, she focused mainly on how the evidence corroborated Guerra's testimony that appellant had been the direct shooter.
B. The instructional error was harmless beyond a reasonable doubt.
The erroneous jury instruction under CALCRIM No. 401 implicates appellant's due process rights because it lowered the prosecution's burden of proof regarding the elements of the crime. (See People v. Cooper (2023) 14 Cal.5th 735, 742 [confirming this standard for omitted elements].) Thus, this was a federal constitutional error, and we must be able to declare that it was harmless beyond a reasonable doubt. (Ibid.; see also Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) When a jury instruction has omitted an element of an offense, the reviewing court must determine whether the record contains evidence that could rationally lead to a contrary finding regarding the omitted element. (Neder v. United States (1999) 527 U.S. 1, 19; People v. Cooper, supra, at pp. 742-743.) In other words, we must consider "whether it appears beyond a reasonable doubt that the error did not contribute to the jury's verdict." (People v. Mil (2012) 53 Cal.4th 400, 417.)
To conduct this analysis, we must thoroughly examine the record. If, at the end of that examination, we cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error-for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding-we should not find the error harmless. (Neder v. United States, supra, 527 U.S. 1, 19.) On the other hand, instructional error is harmless "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence." (Id. at p. 17; accord, People v. French (2008) 43 Cal.4th 36, 53.)
Based on the unique facts of this case, we conclude that the instructional error was harmless beyond a reasonable doubt. This record does not contain evidence that could rationally lead to a contrary finding regarding the omitted elements of aider and abettor liability for implied malice murder. To the contrary, the record overwhelmingly demonstrates that appellant possessed his own implied malice to commit murder, and it is beyond a reasonable doubt that the jury's murder verdict would have been the same absent the instructional error.
Richard's death was caused by the same single shot that comprised appellant's conviction in count 3 for assault with a firearm. The evidence overwhelmingly established that appellant aided and abetted the fatal act. Appellant does not challenge the validity of his conviction regarding the assault with a firearm.
Both Guerra and his girlfriend, S.Z., testified that appellant was the one who provided the firearm. Guerra testified that it was appellant's idea to attack the victims. Nina texted appellant the location of the four males just before the fatal shot was fired.Guerra testified that appellant directed him where to drive to initiate this assault. Guerra claimed that appellant had fired the fatal shot.
Although Nina texted the location of the victims to Guerra's phone, she had never called or texted Guerra in the month prior to this fatal night. On the night in question, appellant's phone had died and he later admitted in his police interview that he had been speaking with Nina on a phone when she was yelling at the four males while officers were present. An overwhelming inference may be drawn from this record that Nina was communicating with appellant, and not Guerra, through Guerra's phone. Appellant heard Nina on the telephone yelling at the officers and the four males.
About 90 minutes after this shooting, appellant and Guerra met their girlfriends in Traver. Appellant told S.Z. that he had retrieved the gun, and she was not supposed to tell law enforcement about that fact. Appellant and Guerra then fled to Bakersfield, where they were arrested together the following afternoon. After being arrested, appellant lied to law enforcement regarding his whereabouts on the fatal night. He claimed that, after leaving the bowling alley and going home, he had walked to a friend's residence. Based on cell phone records, however, the prosecution established that appellant could not have walked to that location and, instead, he was fleeing with Guerra. Further, appellant told the lead detective that he did not go to Traver on the night of this fatal shooting. However, the recording from the gas station shows appellant and Guerra meeting their girlfriends in Traver at about 1:30 a.m.
Because the jury did not find true that appellant had fired the fatal shot, the jury clearly did not find all of Guerra's testimony credible. However, in order to convict appellant in count 3 of assault with the firearm, the jury must have concluded beyond a reasonable doubt that one or more of the following occurred: (1) appellant supplied the firearm used in this attack; (2) appellant encouraged Guerra to attack the victims with the firearm; and/or (3) appellant assisted Guerra in locating the victims in order to attack them with the firearm.
Appellant asserts it is "entirely conceivable" he only intended to scare or injure the victims, and he never held an intent to kill. He relies primarily on two opinions, Langi, supra, 73 Cal.App.5th 972 and People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado). These opinions do not assist him.
In Langi, the defendant and others beat up the victim, who died after someone in the defendant's group punched him, causing him to fall and hit his head, leading to his death. (Langi, supra, 73 Cal.App.5th at p. 975.) In Maldonado, supra, 87 Cal.App.5th 1257, the defendant was convicted of first degree murder, and the defendant argued the jury could have imputed malice to him by relying on jury instructions for aiding and abetting, implied malice, and lying-in-wait murder. (Id. at p. 1262.) The Maldonado court concluded the defendant was entitled to an evidentiary hearing on his resentencing petition because the jury might have imputed malice to the defendant to convict him of murder. (Id. at p. 1269.)
Unlike what occurred in Langi and Maldonado, appellant aided and abetted the fatal act that caused Richard's death. The unique circumstances of this case overwhelmingly demonstrate that the jurors did not impute malice to appellant, who held his own conscious disregard for life. It is beyond a reasonable doubt that the instructional error did not contribute to the jury's verdict in count 1. Absent the error, the jury would have nevertheless convicted appellant of murder. Langi and Maldonado are distinguishable.
There is no evidence in this record that rationally leads to a contrary finding regarding the omitted elements of aider and abettor liability for implied malice murder. The defense presented expert testimony that raised the possibility Guerra had fired the fatal shot. The single eyewitness to the shooting reported only seeing a driver, and not a passenger, in the shooter's vehicle as it drove away from the murder scene. The jury, however, clearly rejected the defense's position that Guerra had acted alone.
During deliberations, the jurors sent a written question to the judge asking, if they found appellant guilty of first degree murder but were undetermined on the discharge of a firearm causing death, would they fill out "guilty" on the verdict form for first degree murder and write in "not true" for the firearm allegation. After consulting with the parties, the court instructed the jury to continue deliberations if possible. If the jurors all agreed that the People had not proven beyond a reasonable doubt the firearm enhancement, the jury was told to find that the allegation had not been proven.
Appellant's remaining arguments are without merit. The murder conviction is not based on a legally invalid theory. Following elimination of the natural and probable consequences doctrine, appellant may be liable for Richard's murder as an aider and abettor based on a theory of implied malice. (See Reyes, supra, 14 Cal.5th at p. 990.) This record overwhelmingly establishes that appellant acted with his own implied malice.
The jurors were correctly instructed that they first had to determine if a murder occurred before they considered whether the prosecution had established beyond a reasonable doubt that the murder was in the first degree. The jurors were told that first degree murder could be based on either (1) premeditation and deliberation; (2) lying in wait; or (3) shooting from a motor vehicle. If the prosecution could not meet the burden of proving first degree murder, the jurors were correctly told that this was second degree murder. (§ 189, subds. (a) &(b); CALCRIM No. 521 [murder is second degree unless proven it should be elevated].)
Contrary to appellant's assertion, his first degree murder conviction should not be reversed even if the jurors relied on a theory of lying in wait. This theory of first degree murder does not require its own finding of an intent to kill. (See People v. Stevens (2007) 41 Cal.4th 182, 204; People v. Laws (1993) 12 Cal.App.4th 786, 789; see also CALCRIM No. 521.) This record, however, amply establishes the required malice necessary to convict appellant of murder. As a result, appellant's concern lacks merit that the jury may have convicted him of first degree murder simply because the perpetrator committed a murder by lying in wait.
It is very possible the jury found first degree murder based on premeditation and deliberation, which required the jury to make a specific finding of appellant's intent to kill. (See CALCRIM No. 521.) Appellant concedes that, if the jury relied on premeditation to reach first degree murder, then his present argument is without merit because the jury would have necessarily determined that appellant had held his own intent to kill. In any event, however, even if the jurors relied on a theory of lying in wait, this record conclusively demonstrates appellant's implied malice. As a result, the murder conviction is proper, and the facts overwhelmingly demonstrate that this was murder in the first degree regardless of the theory the jurors relied upon to elevate this above second degree murder.
Based on this record, it is beyond a reasonable doubt that the instructional error was harmless. Our Supreme Court holds that a person may be convicted as an aider and abettor for implied malice murder. The focus is on "the aider and abettor's mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim." (Reyes, supra, 14 Cal.5th at p. 992.) Although the jury was not asked to determine whether appellant had his own implied malice, the unique facts of this case demonstrate beyond a reasonable doubt that those missing elements were harmless. In other words, it is beyond a reasonable doubt that the error did not contribute to the jury's verdict of first degree murder, which would have been the same. Consequently, reversal of the conviction in count 1 is improper and this claim fails.
III. The Trial Court did not Abuse its Discretion in Permitting Guerra to Testify about Appellant's Alleged Prior Bad Acts and any Presumed Error is Harmless.
At trial, Guerra testified that, before this fatal shooting occurred, appellant had tried to hand him the firearm and appellant had initially wanted him to be the shooter. Guerra claimed he had refused to touch the gun. Appellant then directed Guerra to drive his (Guerra's) Lancer, and appellant acted as the shooter.
Guerra told the jury he had participated in this fatal shooting, in part, because he was afraid of appellant. Guerra claimed he had previously heard appellant ordering "hits" on multiple people. Appellant had allegedly told Guerra that one particular man and his wife had survived a shooting that appellant had ordered over the telephone.
In addition, Guerra claimed that appellant had threatened to make him and his girlfriend, S.Z., homeless if he did not participate in this attack. According to Guerra, appellant was paying his rent for their residence and he had nowhere else to go.
Before witnesses testified in this matter, the defense moved to exclude evidence that Guerra had allegedly heard appellant ordering "hits" on other people. After hearing argument from the parties, the court ruled that Guerra would be permitted to testify that he was scared of appellant because he (Guerra) had allegedly heard appellant talking about killing people or being involved in killing people. The court believed this evidence was relevant to establish Guerra's reasons for participating in the fatal shooting. The trial court did preclude the prosecution from eliciting testimony from Guerra that appellant was allegedly a drug user and a drug dealer.
The defense renewed its objection when Guerra provided his disputed testimony about appellant allegedly ordering hits on people.
In the present claim, appellant contends that the trial court abused its discretion in permitting Guerra to testify that appellant had previously put "hits on people." According to appellant, this evidence was not relevant because it was immaterial whether Guerra had acted under duress. Appellant maintains that the jury only needed to decide whether Guerra was telling the truth about appellant's role in the shooting. In the alternative, appellant contends that, even if this evidence was probative regarding Guerra's credibility, the danger of undue prejudice was so great that it substantially outweighed any probative value. Appellant maintains that the jury would have been motivated to punish him for his alleged prior bad acts, which were very serious in nature.
We reject appellant's arguments. The trial court did not abuse its discretion and any presumed error is harmless.
A. The trial court did not abuse its discretion.
An abuse of discretion standard is used to review a trial court's ruling regarding relevancy and admissibility under Evidence Code section 352. (People v. Jones (2017) 3 Cal.5th 583, 609.) We will not reverse such a ruling unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid.; see also People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
Relevant evidence is defined as having a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) A trial court may exclude otherwise admissible evidence if its probative value is substantially outweighed by its prejudicial effect; that is, if its admission would result in the undue consumption of time, a danger of undue prejudice, confusion about the issues or the danger of misleading the jury. (Evid. Code, § 352.) Broadly stated, evidence is substantially more prejudicial than probative [within the meaning of section 352] if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Here, the trial court acted well within its discretion in crafting its evidentiary ruling. Although Guerra's claim he had heard appellant ordering hits on other people cast appellant in a negative light, it nevertheless provided the jurors with a reason why he had participated in this fatal attack. This testimony permitted the jury to evaluate Guerra's credibility, and to understand the totality of the circumstances leading to this shooting. Nothing shows that Guerra's testimony may have resulted in an undue consumption of time or that it may have confused the jurors. Further, we cannot state that this testimony made the proceedings unfair or called into question the reliability of the outcome. Instead, this testimony permitted the jurors to understand why Guerra participated in this fatal shooting. Guerra's disputed testimony was relevant, and it was not substantially more prejudicial than probative. The trial court's evidentiary ruling was not arbitrary, capricious, or patently absurd. The court's ruling did not fall outside the bounds of reason. Consequently, an abuse of discretion is not present. In any event, however, we also determine that any assumed evidentiary error is harmless.
B. Any assumed error is harmless.
Appellant contends that his trial was rendered fundamentally unfair because Guerra was permitted to testify that he (appellant) had previously ordered hits on various people. He argues that reversal is required under Chapman because his due process rights were infringed. He maintains that this was a close case, and he seeks reversal of his murder conviction.
We disagree that Chapman is the correct standard in this situation. A trial court's discretionary ruling involving the ordinary rules of evidence does not normally implicate the federal Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 611; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1325 [disallowing defense evidence is not also the denial of the right to present a defense].) Under the state standard, we ask whether it is reasonably probable the verdict would have been more favorable to the defense absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Although Watson applies here, we can declare that any presumed error was harmless under either standard. Guerra's testimony was very brief regarding why he feared appellant, and his claim that appellant had ordered hits on people was not repeated. No other evidence was introduced regarding appellant's alleged efforts to have people killed. During closing argument, the prosecutor briefly mentioned the allegation that appellant had ordered hits on people. The prosecution did so in an effort to show why Guerra was afraid. The defense asserted during closing argument that the prosecution had failed to corroborate Guerra's claim that appellant had ordered hits.
During trial, other evidence was introduced that cast aspersions on appellant's character. Guerra's girlfriend, S.Z., also told the jury that she was afraid of appellant. S.Z. claimed that she knew appellant had beaten Nina. S.Z. told the jury that she had observed marks on Nina, who allegedly cried to her, saying how appellant had slapped her (Nina) for not having his socks ready.
The jury acquitted appellant in two counts, and it did not find true the firearm enhancements. Based on the verdicts rendered, it is apparent that the jury carefully considered the evidence. It is also apparent that the jurors did not simply punish appellant because of his alleged prior bad acts. Contrary to appellant's claim, this record does not establish or even reasonably suggest that Guerra's disputed testimony resulted in a fundamentally unfair trial or infringed on appellant's due process.
Finally, we reject appellant's position that this was a close case. To the contrary, the evidence against appellant was overwhelming regarding his liability for Richard's murder. The jury concluded beyond a reasonable doubt that appellant had aided and abetted in the fatal act that caused Richard's death. The record conclusively demonstrates that appellant acted with his own conscious disregard for life. The totality of the circumstances amply established appellant's role in this murder and it is readily apparent the jury did not convict appellant based on his alleged prior bad acts.
Based on this record, we can declare beyond a reasonable doubt that any presumed evidentiary error did not contribute to the murder conviction in count 1. (See Chapman, supra, 386 U.S. at p. 24.) In other words, the murder verdict actually rendered in this trial was surely unattributable to this alleged evidentiary error. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Likewise, it is not reasonably probable the verdict would have been more favorable to appellant absent this alleged error. (See Watson, supra, 46 Cal.2d at p. 836.) Accordingly, even if evidentiary error occurred, it was harmless under either standard and this claim is without merit.
IV. The Trial Court did not Abuse its Discretion in Permitting the Prosecutor to Call an Expert Witness in Rebuttal and any Presumed Error is Harmless.
Appellant asserts that the trial court abused its discretion because it permitted the prosecutor to elicit expert rebuttal testimony without advanced notice. Appellant also contends that the court abused its discretion when it refused to instruct the jury that the prosecution had failed to disclose its rebuttal witness in a timely manner. According to appellant, all of his convictions should be reversed due to the court's alleged abuse of discretion.
A. Background.
We summarize the material facts that underlie this claim.
1. The defense alerts the prosecution about its proposed expert witness.
Before this trial started, appellant's trial counsel informed the court and the prosecutor that the defense had a firearms expert. According to the defense, its expert would testify regarding what comprised a muzzle flash, and the location of this muzzle flash seen in the recording. Defense counsel noted that the prosecution had called officers at the preliminary hearing who had testified about the muzzle flash, and the prosecution could call an officer at trial to testify about the muzzle flash. According to defense counsel, this issue was "not that important."
Prior to trial, the defense's firearms expert sent the prosecutor an e-mail regarding the scope of his proposed testimony. The e-mail did not explicitly state that he was going to opine that the fatal shot must have occurred outside the driver's side window. Instead, he disclosed to the prosecutor that, in general, he was going to testify about how muzzle flashes are created. The defense expert invited the prosecutor to contact him if she had any questions. However, the prosecutor did not attempt to contact the defense expert before he testified in this matter.
2. The relevant trial testimony from the defense expert.
At trial, the defense called its firearms expert, who opined about the location of the muzzle flash. Based on the recording that captured part of the shooting, the defense expert believed the muzzle flash did not originate inside Guerra's vehicle but outside his driver's side window. The defense expert was 100 percent certain that the muzzle flash had occurred outside Guerra's vehicle, and Guerra's version of the shooting was "not feasible." The defense expert also noted that law enforcement's inability to find the expended shell casing suggested that the gun had been fired outside the vehicle, and the casing had landed on the hood of Guerra's vehicle, near the windshield wipers.
3. The prosecutor attempts to rebut the defense's expert.
Following the completion of the defense expert's testimony, the prosecutor attempted to call a rebuttal expert, Miguel Franco. However, the prosecutor never placed Franco on her witness list. The prosecutor told the court that her first choice for expert had contracted Covid-19 and became unavailable. About two weeks before the defense's expert had testified, she had asked Franco to be a potential rebuttal witness. After hearing argument from the parties, the court precluded the prosecutor from calling Franco as a rebuttal witness.
The following day in court, the prosecutor moved to call as rebuttal witnesses two police officers who had been previously listed on the prosecution's proposed witness list. The prosecutor provided further explanation to the trial court why she had failed to disclose Franco as a potential witness before trial. According to the prosecutor, she had not realized that the defense's expert was going to opine that the muzzle flash must have occurred outside Guerra's vehicle and not inside it as Guerra had claimed. She stated that, until the defense expert testified at trial, she only understood that the defense expert was going to explain how muzzle flashes worked in general. She contended that defense counsel had only provided her with a vague statement about the true nature of his expert's proposed testimony. The prosecutor further asserted to the court that she had not tried to hide anything. She argued that she should be allowed to call Curtis Brown to rebut the defense's expert witness. Over a defense objection, the court ruled that Brown could testify as a rebuttal witness in this matter. Before Brown testified before the jury, the court conducted a hearing under Evidence Code section 402 (the section 402 hearing) and Brown's qualifications as a firearms expert were ascertained.
The trial court denied a defense request for a two-week continuance. Appellant does not challenge the court's ruling denying a trial continuance.
Before the jury, Brown testified that he was a sergeant with the Visalia Police Department. He had responded to the shooting scene and he had been in charge of the initial police investigation. Brown had watched the video of this shooting over 50 times. Brown told the jury that he disagreed with some of the defense expert's opinions.
According to Brown, it was impossible to say whether or not the muzzle flash had occurred inside or outside Guerra's vehicle. Brown believed it was possible that Guerra's account of the shooting was correct. Contrary to the defense expert, Brown believed it was not possible to determine where the expended casing went upon ejection.
Following Brown's rebuttal testimony, the defense recalled its firearms expert. The defense expert told the jury that his opinions had not changed in light of Brown's testimony.
4. The motion for a new trial.
After he was convicted in this matter, appellant filed a motion for a new trial. In part, appellant argued that the court's decision to permit Brown to testify as a rebuttal witness had violated his statutory and constitutional rights. Appellant's trial counsel submitted a declaration in support of this motion contending he would have "likely" presented a different defense at trial had he known the prosecution was going to call an expert witness to rebut the defense's expert. At the hearing on this motion, appellant's trial counsel explained that, if he had been given time, he would have investigated Brown's credentials and the scientific foundation for his testimony by conducting his own tests and experiments.
The trial court denied the motion for a new trial. The court wrote in its order that the prosecution should have realized that the defense's expert witness would offer testimony that had "some exculpatory character." However, the court also noted it was "inconsistent" that defense counsel had told the court before trial that the muzzle flash was not" 'that important'" only to later argue it was the key issue in the case. The court also noted that the defense could not complain the prosecutor called one of her officers to testify about the muzzle flash, which was something the defense had earlier suggested was possible. In denying the motion for a new trial, the court ruled that Brown's rebuttal testimony had not influenced the trial outcome.
Appellant does not challenge the court's ruling denying his motion for a new trial.
B. The standard of review.
The parties agree, as do we, that we review the trial court's rulings for an abuse of discretion. (See People v. Mireles (2018) 21 Cal.App.5th 237, 246; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [evidentiary rulings]; People v. Ayala (2000) 23 Cal.4th 225, 299 [decision to instruct on discovery abuse].) We will not disturb the lower court's discretionary ruling unless it was arbitrary, capricious, or patently absurd. (People v. Mireles, supra, 21 Cal.App.5th at p. 246.)
C. Analysis.
A prosecutor must provide the defense with the names and addresses of persons she intends to call as witnesses at trial, including rebuttal witnesses. (§ 1054.1, subd. (a); Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375.) "Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial." (People v. Zambrano (2007) 41 Cal.4th 1082, 1133, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also § 1054.7.)
In this situation, "good cause" requires "threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement." (§ 1054.7.)
In the present matter, we reject appellant's various assertions. First, the trial court did not abuse its discretion in permitting Brown to testify as a rebuttal witness. The court also did not err in declining to instruct the jury regarding an alleged discovery violation. Finally, any presumed error is harmless.
1. The trial court did not abuse its discretion.
Appellant contends that the prosecutor failed to provide proper notice of her intent to call Brown as a rebuttal witness. According to appellant, even though Brown had been disclosed on the witness list, the defense "had no way of anticipating" that Brown would be called as a firearms expert to rebut the defense's expert. Appellant argues that the court abused its discretion. We disagree.
A trial is not a scripted proceeding, and events may change that necessitate the calling of a rebuttal witness. (People v. Hammond (1994) 22 Cal.App.4th 1611, 1624.) This record demonstrates that, regardless of when the prosecutor first contemplated the need for a rebuttal witness, she never understood the scope of the defense expert's proposed testimony. As the trial unfolded, however, she realized that she needed to rebut the location of the muzzle flash that occurred in or around Guerra's vehicle.
The trial court prohibited the prosecutor from calling Franco because he had not been disclosed as a potential witness. The court, however, permitted Brown to testify in rebuttal. Brown had been previously disclosed as a potential witness in this matter, so the notice requirements of section 1054.1 were met. Brown was a police officer who had investigated this shooting. As appellant's trial counsel noted well before the first witness testified in this matter, it was foreseeable that one of the police officers could testify about the muzzle flash. Before Brown testified, the court conducted a section 402 hearing so the defense could discover and challenge Brown's qualifications.
In denying the motion for a new trial, the trial court noted the complexity of this situation. Although the prosecutor likely should have realized that the defense's expert witness would offer exculpatory testimony, it was also "inconsistent" for the defense to tell the court before trial that the muzzle flash was not" 'that important'" only to later argue it was the key issue in the case. The court also noted that the defense could not complain that the prosecutor did exactly what the defense had earlier suggested: an officer could testify about the muzzle flash.
We must give "abundant deference" to the court's ruling regarding its decision to permit Brown to testify in rebuttal as an expert witness. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.) Nothing in this record suggests that the court acted in an arbitrary, capricious or patently absurd manner. Instead, the court listened to both parties and fashioned a ruling that took into account the complex situation that arose. An abuse of discretion is not present, and we will not disturb the trial court's ruling.
Likewise, we do not find an abuse of discretion when the trial court failed to instruct the jury with CALCRIM No. 306. In general, this instruction informs a jury that the failure to follow the discovery rules may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. This instruction authorizes the jury to consider the lateness of discovery in its assessment of the evidence. (CALCRIM No. 306.)
Courts have cautioned against the use of a limiting discovery instruction because it encourages the jury to speculate and it offers insufficient direction to the jurors regarding how to evaluate the situation. (See People v. Saucedo (2004) 121 Cal.App.4th 937, 942; People v. Bell (2004) 118 Cal.App.4th 249, 256-257.)
Here, until the defense expert testified at trial, the prosecutor did not understand the scope of his testimony. The court permitted the defense to voir dire Brown during the section 402 hearing before he testified. Brown did not conduct any experiments and he did not take any measurements. Instead, Brown simply commented on the same video showing the muzzle flash that was in evidence, and which the defense's expert had reviewed. Based on his experience and training with firearms, Brown offered his opinion regarding the potential location of the muzzle flash in Guerra's vehicle.
This record does not reasonably support a conclusion that the prosecutor attempted to gain a tactical advantage or that the defense was adversely impacted. Because this alleged discovery violation was not done to gain an advantage, we conclude that the trial court did not err in failing to instruct the jury with CALCRIM No. 306. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1064 [finding no error when court refused to instruct jury regarding an alleged discovery violation].) This claim is without merit.
2. Any presumed error is harmless.
Appellant asserts that Brown's rebuttal testimony potentially rehabilitated Guerra's credibility. According to appellant, the jury would have likely rejected all of Guerra's testimony had Brown not testified in rebuttal. Appellant maintains this was a close case regarding his liability for Richard's murder. He contends he was precluded from exploring Brown's credentials and the basis for Brown's opinion testimony.
We reject appellant's assertions. Even if we assume the trial court abused its discretion, reversal is not appropriate because any presumed error was harmless.
The parties agree, as do we, that the Watson standard of review is appropriate in this situation. (People v. Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)
Brown made it clear that his opinions were based on viewing the same video evidence that was already before the jury, and the defense had a chance to voir dire him during the section 402 hearing. Following Brown's rebuttal testimony, the defense recalled its firearms expert. The defense expert told the jury that his opinions had not changed in light of Brown's testimony.
The jury acquitted appellant in two counts, and it did not find true that he had personally discharged the firearm. Setting aside Brown's rebuttal testimony, the evidence overwhelmingly corroborated Guerra's testimony that appellant participated in this murder. The totality of this record conclusively demonstrates that appellant held a conscious disregard for life, and he aided and abetted in the assault with a firearm.
Based on this record, it is not reasonably probable the verdicts would have been more favorable to appellant had the trial court precluded Brown from testifying or if the court had instructed the jury with CALCRIM No. 306. Our confidence in the outcome of this trial is not undermined. (See Smith v. Cain (2012) 565 U.S. 73, 75-76; In re Wilson (1992) 3 Cal.4th 945, 956.) As such, any presumed error is harmless. (See Watson, supra, 46 Cal.2d at p. 836.) This claim is without merit and reversal is not warranted. V. Appellant did not Suffer Prejudice when he was Restrained in Court while the Verdicts were Still Being Read.
Prior to the presentation of evidence in this matter, the trial court granted a defense motion that appellant should not be restrained in front of the jury. After deliberating, the jury foreperson announced in open court that the jury had reached unanimous verdicts on all counts. The court clerk began to read the verdicts. Once the clerk read aloud the guilty verdict in count 1, the bailiff handcuffed appellant in open court. A "loud gasp" was heard from somewhere within the audience. However, it was unclear who made that gasp and why. Appellant remained handcuffed while the remaining verdicts were read. After the verdicts were read, the individual jurors were polled regarding their verdicts in each of the counts. Each juror orally indicated agreement with each verdict.
Appellant subsequently filed a motion for new trial, contending that his physical restraint in front of the jury had violated his rights and caused prejudice. In opposing the motion for a new trial, the prosecutor conceded it was error for appellant to have been handcuffed during the reading of the verdicts. However, the prosecutor asserted that appellant had not suffered harm. The trial court denied the motion for a new trial, concluding that any error was harmless because the verdicts had already been rendered before appellant was restrained. The court noted it had not been aware appellant was going to be handcuffed while the verdicts were being read.
In the present claim, appellant asserts that the trial court abused its discretion and impinged on his fundamental constitutional rights by allowing him to be placed in restraints during the reading of the verdicts. He contends that nothing showed the need for these restraints. He notes that a verdict is not complete until after the jurors are polled. Because the verdicts were still being read when he was handcuffed, appellant argues that his restraints could have influenced the jurors when they were orally polled. He maintains that all of his convictions should be reversed.
Appellant does not challenge the trial court's denial of his motion for a new trial.
A verdict is complete if no disagreement is expressed during polling. (See § 1164, subd. (a).)
To resolve the present claim, we need not analyze whether it was error for the bailiff to handcuff appellant while the verdicts were being read. Instead, any presumed error was harmless.
In raising this claim, appellant concedes that it does not appear the trial court was aware its deputy was going to handcuff appellant during the reading of the verdicts. In general, a defendant cannot be physically restrained in the courtroom while in the jury's presence unless it is necessary. (§ 688; see also People v. Bell (2019) 7 Cal.5th 70, 123 [a "manifest need" must exist].)
Before he was handcuffed, the jury had reached their unanimous verdicts on all counts. Those written verdicts were provided to the court before the bailiff restrained appellant. Although appellant was handcuffed before the jurors were individually polled, nothing demonstrates or even reasonably suggests that his restraint would have impacted the jurors' verdicts. Nothing reasonably implies an individual juror may have wanted to express disagreement with a verdict, but failed to do so because appellant had already been restrained. We agree with respondent that any assumed error was harmless beyond a reasonable doubt. This claim is without merit.
VI. Any Presumed Instructional Error was Harmless when the Court Failed to Instruct the Jurors that Guerra was an Accomplice as a Matter of Law.
During the instructional conference, the prosecutor wanted the court to instruct the jury with CALCRIM No. 335. In contrast, appellant's trial counsel wanted the court to instruct the jury with CALCRIM No. 334. To avoid any issues, the prosecutor eventually agreed that CALCRIM No. 334 could be used.
The court instructed the jury with CALCRIM No. 334. Under this instruction, the jurors were told that they had to decide if Guerra was an accomplice. They were instructed that an accomplice is "subject to prosecution for the identical crime charged against [appellant]." An accomplice had to personally commit the crime, or aided and abetted its commission knowing the criminal purpose of the perpetrator. With CALCRIM No. 334, the jurors were told that, if they determined Guerra was an accomplice, they could not convict appellant based on Guerra's testimony alone. Instead, corroborating evidence was needed which tended to connect appellant to the commission of the charged crimes. If Guerra was an accomplice, the jurors were instructed to view Guerra's testimony with caution.
In contrast to CALCRIM No. 334, CALCRIM No. 335 (which the prosecutor originally wanted) would have informed the jurors that Guerra was an accomplice as a matter of law and they could not convict appellant based on Guerra's testimony alone. Instead, corroborating evidence was needed which tended to connect appellant to the commission of the charged crimes. This instruction would have also instructed the jurors to view Guerra's testimony with caution. (CALCRIM No. 335.)
In the present claim, appellant contends that the trial court committed instructional error. According to appellant, Guerra was an accomplice as a matter of law, and the court erred when it used CALCRIM No. 334.
Respondent contends that we should not reach the merits of this claim based on the invited error doctrine. This doctrine "bars a defendant from challenging an instruction given by the trial court when the defendant has made a 'conscious and deliberate tactical choice' to 'request' the instruction. [Citations.]" (People v. Lucero (2000) 23 Cal.4th 692, 723-724.)
To overcome invited error, appellant raises a claim of ineffective assistance of counsel. He concedes that his trial counsel deserves some of the blame for this alleged instructional error. However, he argues that his trial attorney could not have made a conscious tactical choice to request CALCRIM No. 334, when it is clear Guerra was an accomplice as a matter of law. Appellant contends that the invited error doctrine does not preclude appellate review of this claim because his counsel was negligent or mistaken.
To resolve this claim, we need not address the parties' dispute regarding the invited error doctrine. Instead, even if we presume that this doctrine does not apply and the present claim is preserved for review, this claim nevertheless fails due to a lack of prejudice. As such, we also need not analyze whether Guerra was an accomplice as a matter of law. We proceed directly to the issue of prejudice.
Our Supreme Court holds that it is state-law error when a court fails to instruct a jury regarding consideration of accomplice testimony. As a result, a reviewing court must evaluate whether it is reasonably probable that such error affected the verdict. (People v. Williams (2010) 49 Cal.4th 405, 456; People v. Whisenhunt (2008) 44 Cal.4th 174, 214.)
Based on principles of stare decisis, appellant concedes that we are bound by our high court's prior holding that Watson provides the standard of review. Nevertheless, appellant asserts that the court's failure to instruct the jury that Guerra was an accomplice as a matter of law violated his rights to a jury trial, and it infringed on his rights to due process. Thus, he maintains that prejudice must be reviewed under Chapman.
We disagree that we should rely on Chapman. We are bound by our high court's prior holding that we analyze prejudice for this instructional error under Watson. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction."].) Accordingly, we review prejudice here under Watson.
Appellant asserts it was possible the jury did not view Guerra as an accomplice because the jurors may have erroneously believed Guerra was not liable for murder having acted under duress. As a result, appellant argues it is possible the jurors did not view Guerra's testimony with caution and distrust. Appellant also maintains that, setting aside Guerra's testimony, the evidence was "underwhelming" regarding his liability for Richard's murder. He claims that this alleged instructional error impacted his verdicts.
We reject appellant's assertions. Guerra admitted to the jury that he faced liability for Richard's murder based on his role in this fatal shooting. He agreed that he had helped appellant commit this homicide, and he agreed he was ready to accept his responsibility for his part in "the murder." Guerra made it clear to the jurors that he had no deal with the prosecution, and he was testifying under a grant of immunity.
During cross-examination, Guerra clarified that the prosecution had offered him a deal of 15 years to life to testify against appellant. Guerra claimed he did not know the maximum sentence he was facing, but he had wanted a deal of 10 years. Guerra admitted that he hoped he would get a better deal after testifying. Guerra admitted that it was "wrong" when he drove appellant to commit this crime.
During closing argument, the prosecutor asserted that the evidence corroborated Guerra's version of events, and he was telling the truth. In contrast, defense counsel asserted that the jurors should view Guerra's testimony with distrust because Guerra was an accomplice. According to the defense, Guerra had been the shooter and he had acted alone, which was corroborated by the witness who only saw the driver in the Lancer. The defense argued that appellant was not in the Lancer when the shot was fired.
The jury clearly viewed Guerra's testimony with caution. It acquitted appellant in two counts, and it did not find true that appellant had personally discharged the firearm. It is apparent the jury carefully viewed the evidence and weighed Guerra's credibility.
The evidence conclusively demonstrated that appellant aided and abetted in this fatal shooting, and he held his own conscious disregard for life. After reviewing this record, it is not reasonably probable appellant would have received a more favorable outcome if the court had instructed the jury with CALCRIM No. 335 instead of CALCRIM No. 334. Our confidence in the outcome of this matter is not undermined. Therefore, any instructional error is harmless and this claim fails.
We would also reach the same conclusion even if we reviewed this alleged instructional error under Chapman. It is beyond a reasonable doubt the alleged instructional error did not contribute to the jury's verdicts. (See Chapman, supra, 386 U.S. at p. 24.)
VII. Instructional Error did not occur Regarding Guerra's Restraints and Custody Status; any Presumed Error was Harmless.
When Guerra testified at trial, he was in custody and he was physically restrained. Over a defense objection, the trial court instructed the jury with CALCRIM No. 337. The jurors were informed that they should "completely disregard" the fact Guerra was physically restrained, and his custodial status by itself did not make him any more or less believable.
Appellant now contends that the trial court erred in instructing the jury with CALCRIM No. 337. According to appellant, this instruction undermined the defense's ability to attack Guerra's credibility and it "effectively" told the jurors they could disregard the fact Guerra faced his own charges.
We reject appellant's claim of instructional error. The Bench Notes to CALCRIM No. 337 state that a trial court has a sua sponte duty to give this instruction if a witness has been physically restrained in a manner that is visible to the jury. This rule derived from People v. Duran (1976) 16 Cal.3d 282 (Duran).
In Duran, the Supreme Court held that a limiting instruction must be given when a defendant or a defense witness is physically restrained, which is visible to the jury. (Duran, supra, 16 Cal.3d at p. 288, fn. 4.) The rule from Duran was subsequently expanded. In People v. Mackey (2015) 233 Cal.App.4th 32 (Mackey), the appellate court held that an instruction regarding physical restraints or custody status should apply to all witnesses, including witnesses who testify for the prosecution. (Id. at p. 114.) Mackey concluded that the CALCRIM No. 337 Bench Notes "seem to require the same treatment of a shackled prosecution witness" as for a defendant or a defense witness. (Mackey, supra, at p. 114.) The Mackey court rejected an argument that CALCRIM No. 337 had "undercut" the defendants' claim that a shackled, in-custody prosecution's witness was not credible. (Mackey, supra, at p. 115.) Mackey observed that CALCRIM No. 337 "did not tell the jury not to consider the reasons underlying" the prosecution witness's incustody status. (Ibid.) Mackey further noted that the defendants were confusing two credibility inferences. On the one hand, it was proper for the jury to infer credibility based on the witness's criminal conduct and conflicting stories. On the other hand, it was improper for the jury to infer credibility, without more, based on the witness's custody status or shackles. (Ibid.)
Respondent relies on Mackey to establish that instructional error did not occur. In contrast, appellant urges this court not to follow Mackey. According to appellant, Mackey was both wrongly decided and it is distinguishable. Appellant contends Mackey incorrectly expanded the rule from Duran to include prosecution witnesses.
We need not address whether Mackey was wrongly decided or if it is distinguishable. Regardless of the holding in Mackey, the record here establishes that instructional error did not occur and any presumed error was harmless.
A. Instructional error did not occur.
We review claims of instructional error de novo. We determine whether the instruction correctly stated the law and whether there is a reasonable likelihood that it caused the jury to misapply the law in violation of the Constitution. (People v. Mitchell (2019) 7 Cal.5th 561, 579; Estelle v. McGuire (1991) 502 U.S. 62, 72.) The challenged instruction is viewed "in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
In this matter, the jury was properly instructed regarding how to evaluate Guerra's credibility. With CALCRIM No. 226, the jurors were given numerous factors to consider for all witnesses, including, but not limited to: (1) the witness's behavior while testifying; (2) if the witness had a personal interest in how the case is decided; (3) the witness's prior inconsistent statements; (4) if the witness admitted being untruthful; and (5) the witness's prior felony convictions.
With CALCRIM No. 316, the jurors were told that, if a witness had been convicted of a felony, they could consider that fact in evaluating the witness's credibility. A conviction does not necessarily destroy or impair a witness's credibility, and it was up to the jurors to decide what weight to give that fact.
With CALCRIM No. 318, the jurors were instructed to consider any witness's prior statements to evaluate whether the witness's trial testimony was believable.
With CALCRIM No. 334, the jurors were told that they had to decide if Guerra was an accomplice. If so, they could not convict appellant unless corroborating evidence supported Guerra's testimony, and they had to view Guerra's testimony with caution.
Finally, with CALCRIM No. 337, the jurors were told to disregard the fact Guerra was physically restrained when he testified. The jurors were also informed that Guerra was in custody, but his custody status did not by itself make him more or less believable. The jurors were told to evaluate Guerra's testimony according to the other instructions given to them.
During trial, the jurors were made aware that Guerra had a prior felony conviction. The jurors were informed that Guerra had been arrested for his role in Richard's homicide, and Guerra was facing a murder charge. Guerra admitted at trial that he had helped appellant commit homicide, and he was ready to accept responsibility for his part in "the murder." The jurors were told about Guerra's prior statements to law enforcement. The jurors were aware that Guerra had attempted to obtain a deal from the prosecution, and he hoped that his testimony would result in a favorable deal.
The totality of the instructions amply conveyed to the jurors the numerous factors that were relevant regarding Guerra's credibility. CALCRIM No. 337 did not deprive appellant of his constitutional right to present a complete defense or to have the jury determine every material issue presented by the evidence. Guerra's prior felony conviction, his conduct in this matter, and his attempts to obtain a deal were directly relevant to his credibility, and the jury was properly instructed on how to evaluate those factors. Thus, there is no reasonable likelihood the jury applied CALCRIM No. 337 in an impermissible or unconstitutional manner. (See People v. Houston, supra, 54 Cal.4th at p. 1229.) Instructional error did not occur. In any event, however, any presumed error was harmless.
B. Any presumed error was harmless.
The jury was fully informed of Guerra's custody status, his criminal history, and his motivation for testifying against appellant. As such, we can declare beyond any reasonable doubt that any presumed instructional error with CALCRIM No. 337 was harmless. It is apparent that appellant's convictions in this matter were unattributable to this alleged error. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Therefore, prejudice is not present even under the more stringent Chapman standard, and this claim is without merit.
VIII. The Court shall Resentence Appellant in Conformity with Section 1170, Subdivision (b)(6)(B).
Appellant was 23 years old when he committed the crimes in this matter. Because of his age, a presumption exists that he should receive the lowest possible term for any determinate sentence unless the aggravating circumstances outweigh the mitigating circumstances such that the imposition of the lower term would be contrary to the interests of justice. (§ 1170, subd. (b)(6)(B); see also § 1016.7, subd. (b).)
At sentencing in this matter, the trial court imposed the middle term of three years in count 3 for appellant's assault with a firearm. This was deemed the principal term. In count 5, dissuading a witness, appellant received a consecutive one-third subordinate term of eight months. In count 6, appellant received the middle term of two years for dissuading the other witness. This sentence was imposed concurrently and not consecutively.
In the present claim, appellant asserts that the trial court abused its sentencing discretion. According to appellant, nothing shows that the court understood or applied the presumption that he was entitled to the lowest prison term in both count 3 (assault with a firearm) and count 6 (dissuading a witness). Appellant seeks a remand for resentencing.
We need not address whether the trial court abused its sentencing discretion. The convictions in counts 5 and 6 have been reversed for insufficient evidence. Thus, a full resentencing is appropriate so the trial court may exercise its sentencing discretion in light of the changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Gastelum (2020) 45 Cal.App.5th 757, 772.) Following remand, the court shall resentence appellant in count 3 in conformity with section 1170, subdivision (b)(6)(B). We express no opinion regarding how the court should exercise its discretion.
DISPOSITION
The convictions in counts 5 and 6 are vacated for insufficient evidence and retrial is barred. Appellant's sentence is vacated and this matter is remanded for resentencing. When appellant is resentenced, the trial court shall exercise its sentencing discretion in conformity with section 1170, subdivision (b)(6)(B). In all other respects, appellant's judgment is affirmed.
WE CONCUR: POOCHIGIAN, J., FRANSON, J.