Opinion
G035261
4-23-2007
THE PEOPLE, Plaintiff and Respondent, v. VICTOR HUGO SALGADO, Defendant and Appellant.
Dennis P. OConnell for Defendant and Appellant. Bill Lockyer, and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Victor Hugo Salgado appeals to us following retrial on the same set of charges for which he was convicted originally in 2001. We reversed the judgment for that conviction in the unpublished opinion, People v. Salgado, numbered G028368 and filed in June 2003. In the judgment following retrial, Salgado received a determinate term of 23 years plus an indeterminate term of 40 years to life.
In the original trial, Salgado was convicted of murder, attempted murder, two counts of assault with a semiautomatic firearm, street terrorism and possession of a firearm while on probation. Those charges were enhanced—excepting the street terrorism count—with the allegations that he used a gun to benefit a criminal street gang and inflicted great bodily injury. (See Pen. Code, §§ 186.22, subds. (a) & (b), 187, 245, subd. (b), 664, 12021, subd. (d), 12022.7, 12022.53.) In the retrial, Salgado was convicted of those same charges although the jury found it was a murder of the second degree, and not premeditated and deliberated.
In the original sentencing, the court ordered Salgado to serve the indeterminate term of 81.25 years to life.
On appeal from the retrial, Salgado contends our unpublished opinion held his statements to the police were involuntarily given, and thus, their exclusion was binding on any retrial as law of the case. In the alternative, any statements he made subsequent to the interrogating officers use of the inadmissible lie detector test were involuntary, and the retrial court erroneously failed to suppress them. However, we want to emphasize that the retrial court properly deleted all mention of the lie detector test before admitting Salgados incriminatory statements, and thoroughly edited those statements, redacting all language unduly prejudicial or irrelevant.
Additionally, Salgado contends that Roberto Gonzalez, a fellow gang member who testified for the prosecution, was an accomplice as a matter of law for which an instruction to that effect was required to be given sua sponte. We affirm.
FACTS
In January 1999, a "flier" party was held at Wilshire Court, a banquet hall available for rental in Fullerton. The event was organized by David Sanchez and Grant Lee, and it was publicized that an admission fee would be charged. Sanchez and Lee hired Roy Rodriguez and Carlos Chiang to assist them in hosting the party.
As Chiang took the admission fee at the door, a group of 15 to 20 members of the Santa Ana-based Brownside Street gang attempted to enter the party without paying the fee. Salgado ("Boxer"), along with his gang buddies, Roberto Gonzalez ("Grumpy"), Amit Frias ("Stranger"), Mario Frias ("Weasel"), and Michael Delgado ("Dopey"), demanded entry and became angry and insulting when Chiang barred the door.
Gonzalez, a.k.a. Grumpy, took matters into his own hands by forcing open a nearby double door. The gang spilled into the party, running into Sanchez and Lee who demanded they leave. While voices became louder and tempers flared, someone yelled to "go get the strap[s]," and several gang members retired to the parking lot, presumably to arm themselves with the aforementioned guns. Chiang saw Salgado and Frias walk to separate cars, withdraw something from their cars interior and tuck it into their waistbands. With that observation, Chiang gathered up his friends and left the scene.
Lee, however, negotiated with the gang, convincing them to pay a "discounted" price, which they did. The party went on as planned. Three party-goers, Jose Guillen, Eleazar Cruz and Jesus Piedra, were watching a group of girls who were dancing together when someone pushed Guillen from behind, throwing him into the girls and knocking them down. Immediately, Guillen and his friends had a group of Brownside gang members "in their face." This situation eased somewhat when one of Guillens friends recognized one of the Brownsiders, and they started talking. However, Cruz stepped in, escalating the tension by "mouthing off." The gang members started shouting out their gangs name as an indication of its superiority; then, challenges were made and insults were thrown. Suddenly, Salgado and Frias, a.k.a Stranger, pulled out guns and, pointing them at Cruz, fired.
At the critical moment, Sanchez stepped forward to intervene, fatally receiving two of the bullets intended for Cruz. Piedra and Rodriguez also received bullets, two in Piedras left leg and one in Rodriguezs right leg.
The Brownsiders ran to their cars and fled the scene. They gathered the next day, disputing whether they had hit the right guy. Salgado insisted that his bullets had hit the right one when he discussed the matter with Delgado, a.k.a. Dopey.
Two semiautomatic handguns were recovered by police from various Brownside gang members: from Amit Frias, a Browning 9 millimeter handgun; from another gang member, a TU-90, which had been purchased for Frias. The bullet that killed Sanchez was fired from the Browning. The shell casings recovered from the scene were determined to have come from these two handguns seized from the gang members.
Guillen testified that he had identified a photograph of Salgado provided to him by the police soon after the shooting as looking like one of the shooters. He was unable to identify Salgado in court because, he contended, Salgado no longer looked like either the man in the photograph or the man at the party. Fullerton Police Officer Robert Richardson testified that Salgado had lost a great deal of weight since the incident.
Santa Ana Police Officer James Armstrong testified as a criminal street gang expert. He concluded that the shooting was committed for the benefit of, and in association with the Brownside Street gang, which he opined was a "non-traditional Hispanic criminal street gang." Based on his knowledge and experience, Armstrong opined Salgado and Gonzalez were members of Brownside. He also testified that gang guns are often passed among gang members—particularly to those not directly involved in a particular crime—for safekeeping and for the gangs further use. According to Armstrong, gangs typically prepare themselves by carrying guns for protection whenever they leave their home area. Both Gonzalez and Delgado had committed crimes and had been convicted of those felonies as Brownside gang members in the past.
Gonzalez, a.k.a. Grumpy, testified for the prosecution, revealing that he was on parole at the time of the trial for an armed carjacking. He said he accompanied Salgado to the party but that their gang was barred from entering. In response, he forced open the side door for them to gain entry into the party. According to Gonzalez, Salgado left the party to get a gun out of his car and returned along with two other gang members who were likewise armed. Gonzalez saw Salgado fire his weapon. He also admitted "holding" one of the gangs guns that night for Amit Frias, a.k.a. Stranger, while Frias put on gloves. Gonzalez also admitted that he was there to back up his gang buddies.
Delgado, a.k.a. Dopey, was granted immunity to testify for the prosecution. He testified that he was present at the party that night in the company of Salgado. The next morning, the gang got together and at that meeting, Salgado insisted that his shot had hit the right man. Delgado had been convicted of a felony: accessory to murder.
We based our reversal of the original judgment on the egregious error committed by the trial court, which admitted testimony of a clearly inadmissible lie detector test. (See Evid. Code, § 351.1.) On retrial, the lower court—after extensive discussion, research and consideration—decided that it could decide the issue of the voluntariness of the incriminatory statements Salgado made after failing that test. Initially, the retrial court had found our opinion to impliedly hold Salgados taped statements to be involuntary, and that decision was binding on it. Upon reconsideration and a thorough review of the original hearing on the taped statements admission, it found that the incriminatory statements voluntariness had never been actually litigated in the original trial court and had not been addressed in directions by our court. Thus, the retrial court determined that the issue of the statements voluntary nature was subject to litigation for purposes of the retrial.
Evidence Code section 351.1, subdivision (a), provides "[n]otwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, . . ." (Italics added.)
At this retrial hearing, the defense did not contest that Salgado received a proper advisement of his rights and waived them pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Nonetheless, the retrial court, based on its own viewing of the tape and the testimony of one of the interrogators, ruled that Miranda had been complied with and that Salgado impliedly waived those rights by answering the questions.
Although the parties refer to the interrogation of Salgado as if there were one session, it actually occurred in two separate sessions, one on January 20, 1999 and the second one on January 21, 1999, which involved many of the incriminatory responses following the "results" of the voice stress test indicated Salgado had "lied" in his responses on January 20. There were actually three tapes: two tapes of the interrogation on January 20 and a single tape of the interrogation on January 21. The transcriptions of these two sessions resulted in two distinct transcripts: one for the two tapes taken on January 20, and one for the taped conversation on January 21. The retrial court reviewed both transcripts and all three tapes in its review to determine the voluntary nature of Salgados statements.
The retrial court explicitly noted that the original trial court reviewed only two of the three tapes which recorded Salgados entire interrogation by the police. The original trial court never reviewed the third tape which contained most of Salgados incriminatory statements. The two tapes actually stopped after the lie detector test was conducted. Based on this glaring disparity between the evidence reviewed in the original trials voluntariness hearing and that reviewed by the retrial court, the retrial court felt confident its litigation of the issue was appropriate.
After conducting a full hearing under Evidence Code section 402, the retrial court admitted the tapes and the transcript of the full videotaped interrogation, after excising various questions and answers it deemed inadmissible. Because the record from below contained both the tapes and transcripts from the in limine hearing as well as the redacted tape and transcript admitted at trial, the parties on appeal apparently had difficulty keeping the two sets of transcripts separate. Their reading of the record was, on more than one occasion, in error.
Nevertheless, the record establishes that, in the more than six-hour interrogation, Salgado initially denied being at the party or an active member of Brownside. He eventually wavered in these denials, however, and he gradually admitted having driven Brownsiders to the party. He insisted that as soon as somebody fired a gun, he ran to his car and left the area. He claimed never to have seen a gun, but had heard the discharge of two different guns. He also admitted witnessing at least three confrontations at the party, but only the last one resulted in shots being fired.
It was after these first two versions of the nights events that a third detective entered the room and gave a lie detector test to Salgado because Salgado continued to insist that he never participated in the shooting and the officers continued to insist he was lying. Salgado agreed to take this test which involved various questions to which he was to answer. His responses were then "analyzed," and the third detective resumed the interrogation after showing Salgado that his responses on the so-called test indicated falsehoods. It was after this confrontation that Salgado, in a slow but progressive way, admitted his involvement in the shooting.
The tape and transcript was redacted, eliminating the detectives description of the lie detector test and all conversation concerning Salgados preparation for, and taking of, that test. After the excised conversation, Salgado initially denied having a gun, but changed his story, admitting he received a gun from another gang member and then had fired it at the far wall behind the music stand. He said he pointed the gun high on the wall before firing it about four times. He continued to deny who it was who had taken the gun from him or what had happened to the gun.
DISCUSSION
A. The Relitigation of the Voluntariness Issue
"The law of the case doctrine states that when, in deciding an appeal, an appellate court `states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . .." (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893, italics added.) This doctrine applies to principles of law and not mere facts, although evidentiary insufficiency to sustain a conviction meets this definition. (Id. at pp. 841-842.) Another limitation on the rule is that, in subsequent proceedings, an appellate ruling "binds the trial court as to the law but controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based." (People v. Mattson (1990) 50 Cal.3d 826, 850.)
A variety of cases have reviewed whether application of the doctrine of law of the case was appropriate. In People v. Martinez (2003) 31 Cal.4th 673, the doctrine was deemed appropriately applied when a defendant whose original trial court found his prior murder conviction to be disqualified for purposes of the special circumstance allegation of a prior murder, but which decision was reversed by the Court of Appeal on pretrial review of that finding. (Id. at p. 678.) On automatic appeal following his subsequent conviction for murder and imposition of the death penalty, Martinez argued his prior murder conviction from Texas did not qualify as a prior murder conviction for purposes of the capital punishment provisions of Penal Code section 190.2, subdivision (a)(2). This argument was dismissed because the law of the case doctrine controlled the issue based on the pretrial opinion by the Court of Appeal (id. at p. 683), even though a thorough review of the consequences of that application was necessary to ensure "`"no manifest misapplication of existing principles" had occurred and no post-[trial] decisions have intervened to cast doubt on its holding." (Id. at p. 688.)
On the other hand, the doctrine is not applicable when a trial court finds a prior conviction allegation to be true, but the appellate court reverses for insufficient evidence. In such circumstances, double jeopardy does not apply, and retrial is permitted because the evidence would not necessarily be identical in both proceedings. Thus, the law-of-the-case rule does not bind the retrial to the same factual result. (See People v. Barragan (2004) 32 Cal.4th 236, 246-247; see generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 145, p. 392.)
Most importantly, the doctrine of law of the case does not bar relitigation of an evidentiary issue when the original holding, although essential to the appellate reversal, does not include directions in its disposition. "`An unqualified reversal remands the cause for new trial and places the parties in the trial court in the same position as if the cause had never been tried. . . . [¶] That status even permits . . . renewal and reconsideration of pretrial motions and objections to the admission of evidence." (People v. Mattson, supra, 50 Cal.3d at p. 849.)
There is no dispute that our prior opinion did not include directions in its disposition. We reversed the judgment and ordered the case remanded for retrial, although we made it clear that the necessity for the reversal was due to the admission into evidence of the so-called voice stress analysis test. However, the parties actively dispute whether the evidence submitted in the first in limine hearing on the issue of the voluntariness of Salgados admissions was identical to that presented in the retrial court for its in limine hearing. Salgado characterizes it as identical, involving the very same taped interrogation but having only the direct reference to the lie detector test excised. The Attorney General contests this characterization, noting that the entire videotaped interrogation was not presented in the earlier hearing; only the interrogation up to, and including the lie detector test, was proffered and reviewed. The retrial court emphasized that, in reaching its decision, it relied heavily on Salgados demeanor and manner of responses, including his exculpatory replies and continued insistence of innocence even after the test indicated he was lying.
Our opinion held that the admission of the lie detector test was egregious error. We discussed how such a deceptive tool resulted in Salgados change in story, but we did not direct the retrial court to suppress all of his statements. Instead, we found the evidentiary error resulted in a miscarriage of justice, and thus, Salgado had a right to a retrial. Therefore, the issue of his admissions voluntary nature was subject to relitigation, considering we had not directed their suppression and the amount of evidence differed between the two in limine hearings.
As the Attorney General emphasizes, had we determined the statements were involuntary, we would have had to decide their admission was harmless beyond a reasonable doubt (see People v. Maury (2003) 30 Cal.4th 342, 412, relying on Arizona v. Fulminante (1991) 499 U.S. 279) to affirm, in contrast with the harmless error analysis of People v. Watson (1956) 46 Cal.2d 818, which we used in our original opinion.
B. Voluntariness of Salgados Admissions
As an alternative argument, Salgado contends the retrial court erred when it found his statements were voluntarily given. Noting that the Fifth Amendment and basic due process requires a strict adherence to the exclusion of all involuntarily given, incriminatory statements by a criminal defendant, he contests the retrial courts admission of his statements made under police interrogation using allegedly deceptive techniques. (See generally Rogers v. Richmond (1961) 365 U.S. 534, 540-541; Spano v. New York (1959) 360 U.S. 315, 320-321; see also People v. Berve (1958) 51 Cal.2d 286, 290 [overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478].) As the burden was on the prosecution to show by a preponderance of the evidence that his statements were made voluntarily before the jury ever heard it (see People v. Markham (1989) 49 Cal.3d 63, 71), he asserts the retrial court erred when it admitted them.
Moreover, once a court admits a defendants statements, the defense must then be permitted to submit any fact or circumstance for the jurys consideration which may indicate the police used a coercive influence on the defendant to procure the statement. Without such information, Salgado contends, the jury would be unable to accord the proper weight to the statements that they deserve. (See People v. Jimenez (1978) 21 Cal.3d 595, 608.) However, Salgado could have stipulated to the admission of the lie detector test and its results (Evid. Code, § 351.1, subd. (a)) if that was his primary concern.
Salgado contends his incriminatory statements were a direct product of police threats, promises and the psychologically coercive influence of the polices deceptive "lie detector test." As the test was nothing but a manipulative ruse, the resultant admissions were not voluntary, he argues.
"A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.] On appeal, we review independently the trial courts determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including `"the characteristics of the accused and the details of the interrogation" [citation], are subject to review under the deferential substantial evidence standard. [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 659-660.) But in that review, we must consider the totality of the circumstances, and not focus on any single factor as dispositive of the issue of voluntariness. (See Withrow v. Williams (1993) 507 U.S. 680, 693-694.)
The retrial court ruled Salgados incriminatory admissions were voluntary, making numerous factual findings in the process. First, it found Salgados revelations concerning that evenings events was an "evolutionary process" in which he revealed information about the party, his presence there and his knowledge of the shooting in a slow and circuitous manner throughout the six-hour-plus interview, and this manner was knowingly done. Second, it found that Salgado consistently refrained from naming names or identifying his gang buddies and their criminal actions due to his knowledge that, within the gang, one does not "rat" on other gangsters. This characteristic he maintained even after all the discussion of the lie detector test. Third, the court interpreted Salgados repeated expressions "thats all Im gonna say" to mean he was not going to reveal his gangs members names and actions, not that he was invoking his right to remain silent. Fourth, he found Salgados body language throughout the interrogation as indicative of someone not in any way under the psychological control of anyone else: He sat at the table with his arms crossed without slumping or dropping his eyes. Fifth, he noted the third detectives demeanor and mannerism to be very polite, soft-spoken and gentlemanly, not that of a bully or antagonist, and this conversational style of interrogation was one to which Salgado responded warmly. Sixth, the first admission that Salgado made that he had a gun and shot it occurred a few minutes after the third detective showed him that he had failed the test; but Salgado already had started revealing small details about his participation in the party while the test was conducted and throughout his conversation with the third detective. Seventh, Salgado continued to refuse to divulge his gang members names and acts, even after he started incriminating himself. Eighth, the detective told Salgado it would benefit him to reveal the present location of the gun, but in context it was not an inducement. The retrial court then ruled the entire statement—both the answers given on January 20 and those made on January 21—was voluntarily given, noting it considered "the totality of the circumstances surrounding the interrogation," and defining a statement as involuntary when "the accuseds ability to reason, comprehend, or resist were so disabled that he or she was incapable of free or rational choice." (Cf. In re Cameron (1968) 68 Cal.2d 487, 498.) It ordered all mention of the lie detector test be excised from the tapes and transcripts, and following that direct order, admitted all the excised tapes and transcripts.
Salgado also contends the trial court ordered deletion of any mention of his probationary status but that it was negligently retained in the abridged transcript and tape given to the jury. However, the record fails to support him in this accusation. The transcript admitted into evidence has the probation reference deleted. This was but one of the many instances in which the number of separate transcripts resulted in the parties confused and confusing reading of the record.
Salgado directs our attention to various statements the officers made in trying to coax, cajole and finally threaten him into incriminating himself. First, an officer promised never to reveal anything Salgado told him. This, he avers, implied the statements would not be used against him in court. Such a promise, he contends, was clearly coercive as well as overtly false. Next, they told him not "to worry" about his probation violation, implying any statement he made would not be used to revoke his probation grant and thus constituted a promise of leniency. Finally, they rhetorically asked him what harm could result from his explaining to them his participation in the party as he had already revealed he was present. When those promises did not result in a confession, they threatened him with the vague implication that his failure to cooperate with them would harm him. Quite a while passed before the second detective offered to Salgado to take a lie detector test, and then some time passed before the third detective entered the room, explained the procedure, prepared the questions for the examination and finally gave him the lie detector test. Another prolonged period of conversation passed before that third detective confronted him with having failed the lie detector test and resumed interrogating him.
The interplay between the officers and Salgado on this point needs verbatim recitation. There were two detectives talking to Salgado: Richardson and Sosnowski. Richardson commenced the dialogue:
"Ill tell you what. You can say a lot of things about whats gonna happen here, whats gonna happen in the next upcoming weeks, months and years. But one thing youre gonna say is you were never given a fucking, you were not given a chance to tell your story, okay? Cause Ill tell you what. Weve been very patient. Weve listened to you and we told you what other people said. Weve told you just about everything that we know about this thing. About the conversation that happened the next day, what people told us and stuff like that. And, uh, when its all said and done, you know, youre gonna think man, these mother fuckers. But, the one thing you cant say is, you know something? We didnt give you the opportunity to, you know, clear things up and give you your chance to say what the other people had a chance to say and take . . . make no mistake about it, the other people did take the chance and they told us what was said there. And youre the only guy that was there that day that really cant give a logical explanation for why this occurred or who did what. Youre the only guy that sitting there that cans say that. Ill tell you what, You are gonna regret it. I guarantee you youre gonna regret it. You can see it in your eyes, man. You can see it in your eyes, dude. All Im telling you is to take that opportunity. Were willing to listen to you. Take the opportunity. Take the opportunity that everybody else is taking. To give us a logical explanation for what happened. Not the bullshit explanation that hey were trying to end the party. Look at your eyes, man. Dude, you gotta let it go, man. Why? You want it so bad but you think were bullshitting or something. I swear to God were not bullshitting you." Then Sosnowski added, "Was it a big misunderstanding? Was it you had no choice? Whats the deal? So far all youve told us is you shot people cause you wanted to end the party. Youve killed one." Salgado mumbled something in response, ending with "what theyre saying." Richardson replies, "Okay. Well, like I say, you know something? We gave you every chance in the world. I mean, if thats where its at and thats the way you want this thing to end. But theres more to it isnt there? What is your biggest concern right now? Look, youre shaking, you know, your eyes are watering. Wheres your biggest concern? . . . From everything we can tell, its a cold-blooded killing. Is that the way you want it to stand?" (Emphasis added.)
The Attorney General responds that, in context, it was clear the first detective meant he would not reveal to other Brownside members whatever Salgado said to him. Similarly, the reference to the probation violation, the Attorney General contends, was merely a response to Salgados implied reliance on a punitive probation violation if he admitted he had been at the party. In other words, the officer was simply pointing out the illogic of not talking to him if all that Salgado feared was a probation violation due to his admissions. Likewise, when the officer merely asked rhetorically what harm could ensue from explaining to them the details of Salgados presence at the party, he contextually was just furthering the conversation; and Salgados continued denials reflect they had no effect on him. Finally, the Attorney General characterizes Salgados taking the so-called lie detector test as a voluntary act on his part, and one which he could have refused. Indeed, it was an opportunity that Salgado agreed to eagerly to prove to the officers that he was telling the truth.
The Legislature forbade the mention of any polygraph—i.e., lie detector—test in any criminal proceeding because of its inherent unreliability, its tendency to be subjectively manipulated as well as its failure to pass the basic requirements for technologic advancements. (See People v. Hinton (2006) 37 Cal.4th 839, 890; see also People v. Wilkinson (2004) 33 Cal.4th 821, 824-846; see also 2 Witkin, Cal. Evidence (4th ed. 2000) Demonstrative, Experimental and Scientific Evidence, § 89, p. 104.) However, it remains an effective and invaluable tool for law enforcement in ferreting out the truth during investigations. (See United States v. Haswood (9th Cir. 2003) 350 Fed.3d 1024, 1029.)
It might be reasonable to conclude that a person, forced to answer questions under such a test, will be impelled to change his or her answers to try and "pass" the test, whether or not the changed answers are truthful or admissible. (See e.g., People v. Lee (2002) 95 Cal.App.4th 772, 791.) However, the harm from such a circumstance occurs when the jury is presented with such circumstances, for it may not be able to skeptically assess the potential unreliability and scientific inauthenticity of such tests. In Salgados case, the jury never heard even a remote reference to the lie detector test.
As stated in Lee, "[i]t is disingenuous to argue the polygraph evidence was not offered to establish defendants guilt. If it was not offered for that purpose then it was irrelevant. Clearly, however, the prosecution introduced the evidence because it wanted the jury to believe the test results, which showed [the witness] lied when he said he did not know who shot [the victim] so that the jury would also believe he was telling the truth when he said defendant shot [the victim]." (People v. Lee, supra, 95 Cal.App.4th at 791 [italics added].)
An offer to take a lie detector test, and a confrontation with results of such a test, by itself, does not render a subsequent admission involuntary. (See e.g. People v. Maestas (1987) 194 Cal.App.3d 1499, 1506; see also United States v. Haswood, supra, 350 Fed.3d at 1029.) It remains, however, one of the factors which must be considered in our de novo review of the voluntary nature of Salgados statements.
We must accept the retrial courts findings of fact as they find credible support in the record. The most weighty of those facts was the apparent control and self sufficiency exhibited by Salgado throughout the interview, even after the lie detector test. We also find support for the retrial courts finding that the alleged threats and promises were contextually harmless, although we might not have done the same sitting as the trier of fact. Finally, in light of the finding that the third detectives demeanor was soft-spoken, gentlemanly and conversational as opposed to confrontational, antagonistic or overbearing, we affirm the retrial courts ruling, admitting the redacted statements.
C. Accomplice Status of Gonzalez
Salgado argues that Roberto Gonzalez was an accomplice as a matter of law, and that the jury should have been instructed sua sponte to that effect. The Attorney General responds that the retrial courts instruction empowering the jury to decide whether the witness was an accomplice was sufficient. (See CALJIC Nos. 3.10-3.19, as given.) Moreover, the Attorney General contends, if any instructional error occurred, it was harmless because Salgados own admissions were sufficient corroboration for any accomplices testimony to be considered. (Cf. People v. Williams, supra, 16 Cal.4th at p. 680; People v. Lewis (2001) 26 Cal.4th 334, 370 [instructional error harmless if sufficient corroboration in record to support accomplice testimony].)
"No conviction can be had upon the testimony of an accomplice unless such testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense, an `accomplice being one who is liable to prosecution for the identical offense charged against the defendant on trial." (People v. Coffman and Marlowe (2004) 34 Cal.4th 1, 103; see Pen. Code, § 1111; see also CALJIC No. 3.11, as given.) An instruction ordering that such a witnesss testimony must be corroborated before the jury can consider it must be given "[i]f sufficient evidence is presented at trial to justify the conclusion that a witness is an accomplice . . . ." (People v. Brown (2003) 31 Cal.4th 518, 555.) As this was a case involving the special conspiratorial aspects inherent in gang crimes, the "natural and probable consequences" doctrine applied, making all aiders and abettors to the armed fight liable for any resulting homicide. (See People v. Roberts (1992) 2 Cal.4th 271, 316-322; People v. Prettyman (1996) 14 Cal.4th 248, 261; see also CALJIC No. 3.02, as given.) Moreover, the prosecution relied on the testimony of two of Salgados fellow gang members. Thus, the rule requiring corroboration of accomplice testimony carried particularly great weight in this case.
Nonetheless, the jury is the body to decide whether a witness is an accomplice "unless `"there is no dispute as to either the facts or the inferences to be drawn therefrom." [Citation.] Thus, a trial court can determine `as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witnesss criminal culpability are "clear and undisputed." . . ." (People v. Avila (2006) 38 Cal.4th 491, 565 [italics added].)
The facts were clearly in dispute, and liability for the charges hotly contested. The jury was sufficiently instructed. Moreover, assuming arguendo any instructional error by failing to declare Gonzalez or Delgado accomplices as a matter of law, Salgados admissions adequately corroborated the accomplice testimony to render any such error harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
RYLAARSDAM, J.
OLEARY, J.