Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. PA057400 Harvey Giss, Judge.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Ruben Aguilar (appellant) was convicted by a jury of first degree murder (Pen. Code, § 187, subd. (a)) with a finding that a deadly and dangerous weapon was used in the commission of that crime (§ 12022, subd. (b)(1)). The question presented on this appeal is whether the trial court had a sua sponte duty to instruct the jury on accomplice testimony. We find no error and even if the trial court had erred, the failure to instruct was harmless.
All further references will be to the Penal Code unless otherwise indicated.
We affirm.
FACTS
On July 17, 2006, while 17-year-old Omar Diosdado (Diosdado) was working at a construction site, he joined coworker Angel Baldera (Baldara) in Baldara’s truck and noticed a pair of boots belonging to another coworker, Alexander Bueno (Bueno) inside. As a joke, Diosdado threw Bueno’s boots to the ground. Bueno became upset and told Diosdado to pick up the boots, but Diosdado did not. Bueno then pulled Diosdado out of the truck. Another coworker, Ezequiel Aguilar (Ezequiel), who had consumed approximately five beers, approached Bueno and told him that Diosdado “was too little to be treated like that.” Bueno and Ezequiel then engaged in a fistfight and were pulled apart by Baldera after it appeared that Bueno had won the fight. After being pulled apart, Ezequiel initially walked away but returned and chased Bueno with a pick. Bueno ran away from the construction site and was given a ride home by Baldera and Diosdado. Appellant, Ezequiel’s cousin, also worked with Ezequiel, Bueno, and Diosdado, but was not present at the job site on that day. Rebar was frequently used by the workers at the construction sites. When rebar is cut with cutters, the end forms a point at the cut.
Later that evening, Ezequiel drove to his estranged wife, Ericca Vergara’s (Vergara) apartment. When Vergara saw Ezequiel that night, his face was black and blue, and his eyes were swollen and bloodshot. Ezequiel asked Vergara to drive him to his boss’s house. Ezequiel then called appellant and told appellant to meet him at the boss’s house. Ezequiel also wanted to speak to Hugo Valdez (Valdez), a former gang member who was the boyfriend of Oscareith “Suje” Baltodano (Baltodano) a friend of Vergara’s. Vergara called Baltodano so that Ezequiel could speak to Valdez. Ezequiel asked Valdez also to meet at the boss’s house. Baltodano later stated that Vergara had asked for Valdez’s assistance in beating up Bueno.
Baltodano and Valdez arrived at the boss’s house with their two children in the backseat of their dark blue Chevrolet Tahoe. Meanwhile, Vergara and Ezequiel had spoken to the boss briefly before the boss went back inside his house and had no further interaction with them that night. Appellant arrived at the boss’s house with his three children and wife, Becky Malnar (Malnar), who was driving their beige GMC truck. Valdez and Baltodano were introduced to appellant and Malnar because the couples had never before met. The three couples spoke for awhile in front of the boss’s house. Valdez and Baltodano each noted that appellant was “pissed.” Valdez heard appellant say that Ezequiel would not have been beaten up if he had been there. Valdez also testified that Vergara told him they needed to go get the guy who beat up her husband. Vergara, however, testified that she did not recall making those types of statements.
Baltodano recalled that Vergara then wanted to find a man named Jaime because Jaime knew where Bueno lived. Each couple drove their vehicle, caravan style, to pick up Jaime. Jaime rode in Vergara’s car and the entire group then proceeded to Bueno’s residence on Dronfield Avenue. When they arrived, Jaime pointed out Bueno’s residence and then said he wanted nothing to do with the situation and that he wanted to go home. On the way to Bueno’s residence, Baltodano told Valdez that Ezequiel had not been “jumped” as they had initially believed. Since Valdez found it was a fair fight between two people, he decided he had “no business” being at Bueno’s residence and he wanted to leave. Vergara called Baltodano and told her Jaime wanted to leave and that she and Ezequiel were going to drive him back home. Vergara yelled out of her car window that everyone should leave. Baltodano and Valdez left with Vergara and Ezequiel following behind in their own car. Baltodano said she noticed that appellant and Malnar’s car did not follow, but instead stayed in front of Bueno’s residence.
At approximately 10:20 p.m., Marceil Farnum (Farnum) was driving to her home on Dronfield Avenue and noticed a “brownish green” extended cab Chevrolet truck that she had not seen in her neighborhood before. Farnum got out of her car to open the gate to her driveway when she noticed someone being chased across the street. Farnum then noticed that the man who had been chased was up against the truck and that the other man was making a stabbing motion toward the victim’s chest. Farnum was unable to tell whether the attacker had a weapon in hand. She noted that the attacker was “larger and more bulky” than the victim and that both men were Hispanic. The attacker then jumped into the bed of the truck and the truck drove off.
Bueno was approximately 5’8” or 5’9” and about 170-180 pounds, while appellant is approximately 5’11” and weighs about 170 pounds.
A neighbor of Farnum, Hugo Corona (Corona), was riding in a car on Dronfield Avenue when he saw two men running on the sidewalk toward him. Corona was not able to tell the nationality of the men because it was too dark. In order to continue witnessing the scene, Corona instructed the driver of the car to make a “U-turn” and park. After parking, Corona noticed what he described as a “Sierra” blocking the victim’s path. After being blocked, the chaser began stabbing the victim. The attacker used an object which Corona thought was a machete. The attacker then threw his weapon inside the bed of the truck and then jumped in and laid down. The truck then sped away. Corona did not see either a Ford Expedition or Chevrolet Tahoe near the scene.
Corona first referred to the vehicle as a gray “GMC Silverado” and later described it as a “GMC Sierra.”
A deputy coroner testified that the stab wounds on Bueno’s body were atypical because instead of being thin slits, the wounds were “oval to round.” The deputy coroner could not rule out rebar as a possible murder weapon in Bueno’s case and testified that it is possible that sharpened rebar caused stab wounds like Bueno’s.
On the way back to her apartment after dropping Jaime off, Vergara received a call from Malnar and appellant asking Vergara and Ezequiel to meet them at a car wash despite the late night hour. When they arrived Vergara saw Malnar and appellant washing their truck. Baltodano and Valdez also came to the car wash. Appellant and Malnar told Vergara that they had beat up Bueno and “did what they had to do.” Vergara later told police that she had been threatened by appellant who told her that if he got caught for what he did then she was going down with him.
On August 6, 2006, appellant and Malnar returned their vehicle, a GMC Sierra, to the dealer. The Sierra had been purchased on July 16, 2006. The owner of the dealership testified that the GMC Sierra and the Chevrolet Silverado are similar in appearance, noting that the there is only a slight difference at the front of the trucks.
DISCUSSION
I. Accomplice Testimony
Appellant contends that the trial court was required sua sponte to give accomplice instructions because there was enough evidence for the court to determine that witnesses Vergara, Valdez, and Baltodano were accomplices as a matter of law. At the minimum, appellant argues the jury should have been instructed to make a factual determination whether these witnesses were accomplices.
In a criminal case, even in the absence of a request, the trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Hovarter (2008) 44 Cal.4th 983, 1021; People v. Abilez (2007) 41 Cal.4th 472, 517.) The court may, however, properly refuse an instruction if it is not supported by substantial evidence. (Hovarter, supra, at p. 1021.)
When there is sufficient evidence that a witness is an accomplice, the trial court must sua sponte instruct the jury both on the principals of accomplice testimony as well as the need for corroboration of accomplice testimony. (People v. Tobias (2001) 25 Cal.4th 327, 331; see also People v. Zapien (1993) 4 Cal.4th 929, 981-982.) Section 1111 defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” A person is liable to be prosecuted for an identical offense when he or she is a principal. Section 31 defines a principal as anyone who is “concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission....” Whether a witness is an accomplice is a question of fact. (People v. Avila (2006) 38 Cal.4th 491, 565 (Avila).) The defendant bears the burden of establishing the witness is an accomplice by a preponderance of the evidence. (People v. Frye (1998) 18 Cal.4th 894, 967-968, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The trial court may determine that a witness is an accomplice as a matter of law only when the facts establishing a witness’s criminal culpability are clear and undisputed. (People v. Hayes (1999) 21 Cal.4th 1211, 1272 (Hayes).) If, however, the evidence is disputed or supports conflicting inferences, the trial court must instruct the jury to make a factual determination whether the witness was an accomplice. (People v. Zapien, supra, 4 Cal.4th at pp. 981-982.)
To sustain a conviction based on a theory of aiding and abetting it is required that a person: (1) know the unlawful purpose of the perpetrator; (2) have the intent or purpose of committing, encouraging, or facilitating the commission of the offense; and (3) aids, promotes, encourages, or instigates the commission of the crime. (People v. Marshall (1997) 15 Cal.4th 1, 40; People v. Beeman (1984) 35 Cal.3d 547, 561.) An aider and abettor may also be liable under a “natural and probable consequences” theory which mandates that an aider and abettor is liable for any other crimes that are the natural and probable consequence of the target crime. (People v. Prettyman (1996) 14 Cal.4th 248, 254; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)
Here the trial court was not required to give accomplice testimony instructions sua sponte because Vergara, Valdez, and Baltodano did not actually participate in Bueno’s murder and were unaware of appellant’s unlawful purpose or intent to murder Bueno. Rather, Valdez and Baltodano met appellant for the first time on the night Bueno was murdered and Valdez’s only reason for meeting was to support Ezequiel because Valdez believed Ezequiel had been involved in an unfair fight in which he had been “jumped.” As soon as Valdez found out the fight was fair he said, “Let’s get out of here.”
Baltodano, who also met appellant for the first time that night, left with Valdez because she did not see any point in staying and because her children were in the car. That Baltodano was unaware of defendant’s intent is evident by the fact that there had been no mention of killing Bueno; the only discussion of Bueno was that he would be get “beat up”; “[Vergara] wanted [Valdez] to you know go and help her to beat the guys down whoever did it... and that’s what we went for.” Also, Baltodano testified that she never saw any weapons.
Vergara was also unaware of appellant’s intent to kill Bueno. All evening she heard only talk of giving Bueno a beating. Vergara made it clear that she was leaving the group when at Bueno’s residence, she yelled that out of the car as she drove away.
In Hayes, the witness led the victims to the spot where they would eventually be killed but was not deemed an accomplice as a matter of law because she did not know the defendant’s intent was to murder. Rather, the witness had driven to the murder location and led the victims to the defendant thinking that the purpose of the meeting was a drug deal. (Hayes, supra, 21 Cal.4th at pp. 1240, 1271-1272.) Similarly, in People v. Williams (2008) 43 Cal.4th 584 (Williams), the witness was not found to be an accomplice as a matter of law even though he was present at the murder scene, opened the trunk where the eventual murder victim was placed, and suggested places to take the eventual murder victim, because the only plan the witness was aware of was to rob the victim – not kill him once they arrived at their final destination. (Id. at p. 636.)
Here, the facts were not disputed, nor did they support conflicting inferences. Vergara, Baltodano, and Valdez never were aware of appellant’s intent to kill Bueno. As mentioned, the only harm to Bueno ever discussed by any of the witnesses was a plan to beat him. None of the testimony regarding the witness’s knowledge of appellant’s intent was contradictory. The trial court was therefore not required to have the jury determine whether Vergara, Baltodano, and Valdez were accomplices; nor was the trial court required to give a sua sponte instruction ruling that the witnesses were accomplices as a matter of law.
Also, there was no substantial evidence to support a natural and probable consequences theory. The test to determine whether a crime is a natural and probable consequence of the target crime is whether a reasonable person in the alleged abettor’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the target crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) To determine whether the ultimate offense was reasonably foreseeable, all the circumstances leading up to the last act by which a participant directly or indirectly encouraged the principal in the commission of the crime must be considered. (Id. at p. 532.) Here, Vergara, Baltodano and Valdez all decided to leave the scene rather than go through with the original plan to beat up Bueno. Considering this, it is not reasonably foreseeable that appellant would stay behind the group and then kill Bueno alone, especially with no indication of any weapon being at hand.
Because there was insufficient evidence to support a natural and probable consequences theory, the trial court was not obligated to so instruct the jury.
II. Harmless Error
People v. Watson (1956) 46 Cal.2d 818 (Watson).
Although appellant suggests that the failure to instruct was structural error and reversible per se, the law is clear that failure to give a jury instruction is subject to the harmless error analysis of Watson. (People v. Lewis (2001) 26 Cal.4th 334, 370.) The Watson standard sets forth that “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence, ’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
B. Corroborating Evidence
Appellant asserts that the error of failing to instruct was not harmless because there was not sufficient corroborating evidence in the record to remedy the omission. Appellant further contends that the trial court failed to give instructions directing the jury to corroborate any testimony given by the possible accomplices. We disagree.
When a trial court commits error because it failed to give instructions on accomplice testimony, the testimony is harmless if there is sufficient corroborating evidence in the record. (Avila, supra, 38 Cal.4th at p. 562; Williams, supra, 43 Cal.4th at p. 636) The corroborating evidence may be slight or entirely circumstantial and does not need to be sufficient to establish every element of the charged offense. (Hayes, supra, 21 Cal.4th at p. 1271; Avila, at p. 563.) The evidence is sufficient if it satisfies the jury that the defendant is connected to the crime. (People v. Fauber (1992) 2 Cal.4th 792, 834.) It is the prosecution’s burden to present independent evidence (or evidence tending to connect the defendant with the charged crime) without relying on the accomplice’s testimony. (People v. Richardson (2008) 43 Cal.4th 959, 1024.)
Even assuming that the trial court had erred in failing to give accomplice instructions, the error here would be harmless because there was sufficient independent evidence to corroborate the witness’s testimony. Corona and Farnum each independently testified that they witnessed the victim Bueno being blocked by and pinned up against a truck which matched the description of appellant’s truck. Farnum was able to identify Bueno’s attacker as a Hispanic male. Additionally, both observed that the truck drove off after the attacker jumped into the truck bed.
There was also proof that after the murder, appellant returned his truck to the dealership less than a month after it was purchased, suggesting appellant’s interest in distancing himself from evidence linked to the murder.
Appellant’s boss testified that appellant frequently had access to rebar which becomes sharp at the end when cut. This, coupled with the coroner’s testimony that rebar could have been the murder weapon, also provides evidence of appellant’s guilt.
There was testimony also that Ezequiel’s eyes were badly swollen, from which the jury could infer that Ezequiel was unable to participate in the crime, thereby excluding him as a potential suspect, thus limiting the number of likely perpetrators.
Establishing a motive for the crime also satisfies the corroboration of evidence requirement. (People v. McDermott (2002) 28 Cal.4th 946, 986.) In McDermott, the prosecution provided sufficient independent corroborating evidence when it was able to show a motive for the murder. There, the defendant killed the victim in order to gain sole possession of a house that was in joint tenancy. (Ibid.) Here, a motive was established by Diosdado’s testimony that appellant’s cousin, Ezequiel, was badly beaten in a fight with Bueno thereby inspiring appellant to seek revenge.
Moreover, not giving a corroboration instruction was mitigated by other instructions. Specifically, the jury was directed to several factors to consider in judging witness credibility and inviting them to consider disbelieving anything a witness said if the jury decided that the witness deliberately lied in some part of his or her testimony or was otherwise not reliable. This caused the jury to be aware of its right to discredit any witness’s testimony if warranted.
Therefore we find that any error here was harmless because there was sufficient independent evidence to establish appellant’s guilt and there was no reasonable probability that the absence of the accomplice testimony instruction would have had any impact on the jury’s verdict.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.