Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CR11034
BLEASE, J.
A jury convicted defendant Sean Rowell of arson of an inhabited structure (Pen. Code, § 451, subd. (b); further undesignated statutory references are to the Penal Code), explosion of a destructive device with intent to injure or intimidate (§ 12303.3), and found that he used a device designed to accelerate the fire (§ 451.1, subd. (a)(5)). Defendant was sentenced to a stipulated term of 13 years.
The jury hung on three other charges, two counts of attempted premeditated murder (§§ 664, 187, subd. (a)) and one count of explosion of a destructive device with intent to commit murder (§ 12308). Defendant agreed to a stipulated term on the remaining counts in return for dismissal of the attempted murder and explosion of a destructive device charges.
On appeal, defendant contends the court erred in failing to instruct the jury, sua sponte, to view out-of-court admissions with caution, should have instructed the jury that a prosecution witness was an accomplice as a matter of law, and limited his right to cross-examine a witness in violation of his Sixth Amendment right to confrontation. He also claims there was prosecutorial misconduct during closing argument, and cumulative error warrants reversal. We shall affirm.
Defendant represented himself at trial, with his former counsel acting as cocounsel. He does not contest this on appeal.
BACKGROUND
On April 30, 2006, at around 3:20 a.m., a fire broke out at Richard Casity’s house in Jackson. Ceecee Florez was in the garage of the house across the street and heard a sound like fire igniting. She went outside and saw four-foot high flames across Casity’s roof.
Florez ran across the street and tried to wake Casity before going to the side of Casity’s house, where she found another fire. Florez used a water hose to douse the fire and returned to the front of the house, where she handed the hose to Casity, who climbed a ladder to the roof.
Casity lived in his home with his two daughters, one of whom was at a friend’s house. The other daughter, R.C., age 11, was severely autistic and asleep in the house. Casity was awakened by Florez and went outside, obtained a ladder, and climbed to the roof, using the hose to put out the fire. R.C. remained asleep throughout the fire.
Casity met defendant’s girlfriend, Carletta Johnson, in January 2006. Johnson recently had a baby born with disabilities and was introduced to Casity through a friend. Johnson stayed at Casity’s house several times in early 2006 when either of them needed help.
Defendant worked on a ranch owned by Richard and Jonie Woolstrum, where he lived in a trailer with Johnson. On Valentine’s Day, defendant forcibly removed Johnson from Casity’s house and took her back to the trailer where she remained.
Johnson was trying to stop using drugs, so Casity helped her get into a drug treatment center in March 2006. On Easter Sunday, April 16, 2006, Johnson invited defendant and the Woolstrums to dinner at the facility. When they arrived, a large bouquet of flowers and card from Casity were visible. Upon seeing this, defendant’s face “darkened” and “he became very angry.” He whispered into Johnson’s ear, “Why would I send you flowers, bitch? You lost our kid.”
Johnson’s relationship with defendant worsened after their baby was born in December 2005. Testifying, Johnson confirmed defendant had physically abused her during their relationship, including one incident in which he beat her with a hammer. Jonie Woolstrum related that defendant and Johnson had a “confused” relationship, as Johnson loved but feared defendant. Both Woolstrums testified to frequently seeing Johnson with physical injuries, and in their belief defendant physically and mentally abused her. Jessie Rameriez, who also worked at the ranch, observed defendant’s verbal abuse of Johnson, who was “pretty well banged up all the time, crying.”
Ann Marie Francis, who was introduced to Johnson by a friend, once saw a bruise on Johnson’s arm, which she said came from defendant grabbing her. Francis stayed at the ranch during May and June 2006 and once heard yelling and screaming from defendant’s trailer. She visited defendant’s trailer and observed Johnson had a black eye and bruises on her back. Johnson told Francis defendant had hit her.
Johnson completed the rehabilitation program in late April and returned to live with defendant. On April 30, 2006, defendant locked Johnson inside the trailer after he thought she had called Casity. Defendant entered the trailer at 3:00 a.m. and told her to get into the car. A small round ice chest was in the car, and defendant drove them to a spot near Casity’s home. Inside the chest were two light bulbs with paper hanging out of the base. When they got there, defendant ordered Johnson to get out and they walked to the side of Casity’s house.
According to Johnson, once they reached a neighbor’s driveway, defendant took one of the light bulbs, lit it, and threw the device at Casity’s house. Defendant, who had told Johnson to put on a pair of red gloves, then placed the other Molotov cocktail in her hand. He raised Johnson’s hand and told her to throw the device, and, according to Johnson, defendant “coerced it” so the incendiary device was thrown at Casity’s house. Before he handed the Molotov cocktail to her, defendant told Johnson this was the way to make her loyal to him.
When defendant handed the device to Johnson, the gas started to leak onto her hand and set it on fire, which caused her to remove the glove. The pair went to defendant’s car, and during the drive home defendant told Johnson he loved her and knew she loved him.
Johnson testified that defendant then stopped by Rameriez’s trailer at the ranch, where they met Rameriez, Francis, and another friend. Defendant told them he and Johnson did not go anywhere that night, and Rameriez was to be their alibi if anyone asked.
In May, Johnson went to her family’s house because of defendant’s abuse. She told her mother she and defendant had done something wrong, but could not say what happened because defendant was dangerous. Johnson returned to defendant in June, but went back to her mother after more abuse, this time confiding to her cousin Rebecca Ward that she and defendant had firebombed Casity’s place. Ward, testifying, confirmed Johnson’s testimony.
On August 8, 2006, Johnson told Casity about the incident. In addition to implicating defendant and herself, Johnson also falsely implicated her cousin Travis Grow as well as Casity’s ex-wife and a friend of the ex-wife. She talked to the police the next day and told the same story she had told Casity. According to Johnson, she was under the influence of methamphetamine when she spoke to the police.
On August 18, 2006, Johnson talked to her friend Jamie Villanueva and told him she and defendant had firebombed Casity’s house, she had talked to the police, “and that I was looking at 23 years to life with no parole.”
The next day Johnson called Casity and arranged to be picked up by the police. She made another statement to the police on September 19, in which she implicated only defendant and herself. According to Johnson, she was clean and sober when she made this statement and her previous statement to the police was not true.
While they were being transported in a van, defendant told Johnson that since she had told the “lie, I’m getting 23 years to life, that I should have threw the bomb when I had the whole family and even his retarded son was in the home and he wouldn’t be in this mess.” Defendant also said he would kill her as he had people on the outside.
Johnson admitted to a prior conviction for evading arrest and having entered a guilty plea to the burning of an inhabited structure (§ 452, subd. (b)) for her participation in the firebombing of Casity’s house. She denied making a deal for immunity in exchange for testimony, but the court informed the jury Johnson did not understand the question.
The court told the jury that Johnson, who had been charged with the same offenses as defendant, pleaded guilty to burning an inhabited structure, a “reasonably related offense” which could be punished by two, three, or four years or probation and up to a year in jail, in exchange for all other charges being dismissed, but contingent upon her testifying truthfully. Defendant tried to cross-examine Johnson about the punishment she faced before making the agreement, but the court sustained the prosecution’s objection and instructed the jury not to consider defendant’s potential punishment in deciding whether he was guilty.
Richard Woolstrum recounted a discussion he had with defendant in April 2006. While the two were walking at the ranch, defendant said he was going to kill Casity. In July, Woolstrum went to the area around defendant’s trailer where he found a great deal of burning. A decorative Manzanita bush was about one-third burned, and Woolstrum noticed glass near the base of the bush.
By this time Woolstrum had started to evict defendant, which led to several threats from defendant to kill him. In October, when defendant left the trailer, Woolstrum walked around it again and noticed more evidence of fire along with burned gloves, light bulbs, and light fixtures with bulbs in them.
Rameriez, who had pleaded no contest to possession of methamphetamine and was in custody on drug charges, worked at the ranch from March to September 2006. In April she observed defendant in the ranch warehouse putting Styrofoam peanuts into a light bulb. Rameriez also saw defendant put some type of material into the end of the light bulb. She heard defendant once say he was upset because Johnson was “messing around” with Casity.
Rameriez and Francis testified regarding defendant’s attempts to arrange an alibi at the ranch. According to Rameriez, defendant drove up with Johnson in late April during the evening. Francis testified this incident took place on May 1, 2006, at around 7:00 a.m. According to Johnson, defendant drove up and tried to arrange his alibi at approximately 3:00 a.m. on April 30.
A Jackson police detective found charred red material by the driveway of the house next to Casity’s. A wet spot next to the material smelled like gasoline. The detective found what appeared to be remnants of a Molotov cocktail on the ground below the charred area on the north side of Casity’s house.
The incendiary device was a light bulb with the metal base removed and wicking material stuffed inside. Glass fragments and a wicking material from the bottom portion of the device were found on the roof. Pieces of glass were found fused to the shingles of the roof and Styrofoam was found melted onto rocks found at the scene. The Styrofoam would help the burn by adhering to what it touched.
Defendant’s mother asserted her son was with her on the weekend beginning April 30, 2006.
DISCUSSION
I
Defendant contends the court committed reversible error in failing to instruct the jury that his oral admissions must be viewed with caution. We find the error to be harmless.
Several witnesses testified regarding admissions made by defendant. Richard Woolstrum testified to defendant saying he wanted to kill Casity. The testimony of Rameriez concerning defendant’s being upset over Johnson’s involvement with Casity, as well as the testimony of Francis, Rameriez, and Johnson concerning defendant’s efforts to get an alibi, also involved admissions. Finally, Johnson testified to several other admissions by defendant when he ordered her into the car and told her to throw the Molotov cocktail, as well as threats he made to her after their arrest.
A trial court ordinarily has a sua sponte duty to instruct the jury that evidence of a defendant’s oral admissions must be viewed with caution. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200; People v. Beagle (1972) 6 Cal.3d 441, 455 (Beagle).) “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.” (Beagle, supra, at p. 456.) The failure to give the instruction, however, “does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (Id. at p. 455.)
Regarding the alibi attempt, although Johnson, Rameriez and Francis disagreed on the exact timing when this took place, they all agreed, through very similar testimony, that defendant had in fact drove to Rameriez’s trailer and sought to arrange the alibi. This renders harmless any error regarding these admissions. (See Beagle, supra, 6 Cal.3d at p. 456 [failure to give instruction harmless where statement heard by two witnesses].)
The failure to give the cautionary instruction is also harmless where “there was no issue of conflicting evidence in this case concerning the precise words used, their meaning or context, or whether the oral admissions were remembered and repeated accurately.” (People v. Bunyard (1988) 45 Cal.3d 1189, 1225.) In that context, where defendant simply denies the statements ever having been made, the failure to give the cautionary instruction is harmless error when the jury is properly instructed on evaluating a witness’s credibility. (Ibid.)
Defendant presented no conflicting accounts of what he allegedly admitted. To the extent he challenged the admissions, it was to deny having made the statements or attacking the credibility of the witnesses.
The court properly instructed the jury on how to determine and weigh the credibility of witnesses by giving CALCRIM No. 226 relating to the credibility of witnesses generally, CALCRIM No. 302 regarding conflicts in testimony, and CALCRIM No. 334, to view Johnson’s testimony with caution if the jury determined she was an accomplice. These instructions adequately allowed the jury to determine whether the witnesses’ testimony concerning defendant’s admissions was credible, rendering the court’s error harmless.
II
The court instructed the jury with CALCRIM No. 334, which defines accomplice and instructed the jury that if it determined Johnson was an accomplice, it could not convict defendant based on her testimony without supporting evidence, and must view her testimony with caution. Defendant contends the court should have instructed the jury that Johnson was an accomplice as a matter of law. He is mistaken.
Section 1111 defines accomplice “as one who is liable to prosecution for the identical offense charged against the defendant. . . .” This includes all principals in a criminal act. (People v. Tewksbury (1976) 15 Cal.3d 953, 960.) Criminal liability as a principal attaches to those who aid in the commission of a crime only if they also share in the criminal intent or abet the crime (i.e., encourage it with knowledge of the wrongful purpose). (Ibid.)
Whether a witness is an accomplice is a factual question for the jury unless the facts are undisputed and support only one inference. (People v. Brown (2003) 31 Cal.4th 518, 556-557.) An accomplice must knowingly, voluntarily, and with a shared intent join with the principal offender in committing the crime. (People v. Perez (1973) 9 Cal.3d 651, 658.) A person is not an accomplice as a matter of law if there is evidence he or she acted out of fear of defendant. (People v. Anderson (1987) 43 Cal.3d 1104, 1138 [alleged accomplice testified he acted out of fear of defendant rather than with the necessary criminal intent].)
There is evidence Johnson did not share defendant’s intent to commit the arsons, but acted solely from fear of retribution by defendant. Johnson and others testified to defendant’s abuse of her and her fear of him. According to Johnson’s testimony, defendant placed the Molotov cocktail in her hand, raised her arm, and then “coerced” her into throwing it. Coupled with the testimony of defendant’s prior abuse of Johnson, this is sufficient to leave the question of whether Johnson was an accomplice to the jury.
III
Defendant was allowed to cross-examine Johnson about her agreement with the prosecution, eliciting, through the court’s instruction to the jury, that she had faced the same charges as defendant, but was allowed to plead guilty to a lesser related offense and have the remaining charges dismissed so long as she testified truthfully. The court did not allow defendant to question her regarding the punishment she faced had there been no agreement, and instructed the jury it could not consider the punishment defendant faced when determining any fact or the question of defendant’s guilt.
Defendant invokes his constitutional right under the confrontation clause (U.S. Const., 6th Amend.) to explore a witness’s bias against him. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [89 L.Ed.2d 674, 683].) He contends the trial court abridged his right to confront an adverse witness by preventing him from questioning Johnson about the punishment she faced had she not made a deal with the prosecution. We disagree.
What Johnson stood to gain from her plea agreement with the prosecution was relevant to her credibility. (See People v. Desantis (1992) 2 Cal.4th 1198, 1219-1220.) The potential punishment she would avoid by pleading to a lesser offense is clearly relevant to this consideration. However, within the confines of the Confrontation Clause (as well as the Evidence Code) the trial court retains wide latitude in restricting cross-examination that is prejudicial, confusing, or of marginal relevance. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679 [89 L.Ed.2d at p. 683]; People v. Frye (1998) 18 Cal.4th 894, 946.) The trial court’s exercise of this discretion does not offend the Confrontation Clause unless the prohibited cross-examination would have produced a significantly different impression of the witness’s credibility. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680 [89 L.Ed.2d at p. 684]; People v. Frye, supra, 18 Cal.4th at p. 946.)
The jury knew Johnson faced substantially reduced charges as a result of her agreement with the prosecution. She had also previously testified on direct examination to telling Villanueva she was facing a sentence of 23 years to life. The court informed the jury Johnson faced no more than a four-year term under her agreement and could get probation. Allowing defendant’s question would not have significantly changed the jury’s perception of Johnson’s credibility. The limitation on the cross-examination of Johnson did not violate defendant’s right to confrontation.
IV
When cross-examining Johnson, defendant, representing himself, attempted to elicit the facts of her prior conviction for evading the police. She admitted to being in a drug treatment facility in 2002 and having been diagnosed with drug induced bipolar disorder or schizophrenia the same year. With respect to the evading conviction, Johnson stated she had been acquitted of the other charges against her stemming from that incident.
During her closing argument, the prosecutor made the following statement: “Remember when Carletta Johnson got on the stand right away and, of course, who better to intimidate her, what better control, his last shot at her, better than having an attorney, isn’t that interesting. He represents himself. Who better, more effective to get her to lose it on the stand than him? The ultimate control beyond this crime. What he starts out with, tries to make her sound like a criminal. You were accused of all these things. Yeah, I was acquitted of them. This evading as a felony, evading arrest, he starts right there. Starts intimidating her.”
Defendant contends the prosecutor committed prejudicial misconduct with this argument. We conclude the claim is forfeited.
Defendant never objected to the prosecutor’s argument. “‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 858.) Alternatively, the failure to request an admonition is excusable if the request would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.)
“A jury will generally be presumed to have followed an admonition to disregard improper evidence or comments, as ‘[i]t is only in the exceptional case that “the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.” [Citation.]’” (People v. Pitts (1990) 223 Cal.App.3d 606, 692.) The prosecutor’s argument does not raise to this level, as an admonishment would have cured any prejudice from the prosecutor’s remarks. Accordingly, we conclude defendant has forfeited his claim on appeal.
V
Defendant contends that cumulative error warrants reversal. We have reviewed the contentions and our conclusions and conclude there is no individual or cumulative prejudicial error warranting reversal of the judgment.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., HULL, J.