Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA081891, Paul A. Bacigalupo, Judge.
Law Offices of Ted T. Yamamoto and Geoffrey R. Pope, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Erwin Barillas appeals from the judgment entered following a jury trial that resulted in his conviction of two special circumstance first degree murders and one premeditated attempted murder. His sole contention is that the trial court erred in failing to instruct the jury sua sponte on the proper use of accomplice testimony. We affirm.
Defendant was charged by information with the first degree murders of Vicente Zuniga and Roberto Rosales and the attempted premeditated murder of Juan Lezama; multiple murder special circumstance, gun use and gang enhancements were also alleged. A jury convicted defendant as charged and found true the enhancements and the special circumstance allegation. On each murder count, defendant was sentenced to life in prison without possibility of parole plus consecutive 25 year to life sentences for the gun use enhancements; on the attempted murder count, he was sentenced to life in prison plus additional 10 and 25-year gang and gun use enhancements.
FACTS
A. The People’s Case-In-Chief
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that, in October 2005, defendant was a member of the criminal street gang known as the Street Villains.
On October 15, 2005, a house party was held in the backyard of a Los Angeles residence. Before being allowed into the backyard, guests were searched for guns in the front yard. Members of a Street Villains rival gang were at the party, as were people not affiliated with any gang. During the party, two separate fights broke out. When the second fight was over, Vicente Zuniga and Roberto Rosales had been fatally shot and Juan Lezama wounded.
Lezama testified that he and his friend, Oscar Lopez, arrived at the house party at about 10:30 p.m. While he was talking to Maria Padilla and others standing on the back porch, a brawl erupted in the rear of the backyard. Eventually, Lezama became embroiled in the fight and was hit by someone in a white T-shirt. When his assailant moved to one side, Lezama saw another person holding a gun. Lezama described the man holding the gun as a stocky, five-foot six-inch, light-skinned Hispanic wearing a black hooded sweatshirt and dark pants. This person shot Lezama. When Lezama fell to the porch, the person in the white T-shirt resumed hitting him and then moved away. The gunman then shot Lezama again. When Lezama attended a lineup at the county jail two months later, he was unable to identify anyone. At trial, Lezama testified that defendant had a similar build and complexion to the gunman.
Lezama’s friend, Lopez, recalled a fight breaking out among what appeared to be a crowd of gang members. Lopez heard one shot fired, then several more. Lopez saw a “chubby” person wearing a white T-shirt and jeans point a gun and shoot someone lying on the ground. Lopez ran away. At the police station a few days later, Lopez circled a photograph of defendant in a photographic lineup and wrote next to it: “He kind of looks, body type, chubby. He has a chubby face.” Two months later, Lopez was not able to identify the shooter from the participants in a live lineup.
Maria Padilla testified that as the fight neared where she was standing with Lezama and others, Lezama tried to direct the fighters away. Padilla heard a sound that she thought was a balloon popping, then saw people start running. Lezama, meanwhile, became involved in the fight. When Lezama fell to the ground close to the steps, Padilla heard another shot. Padilla saw Lezama fighting with two people, both of whom appeared to be in their 20’s and one of whom was holding a gun. Padilla described the person with the gun as between five foot eight and five foot nine inches tall, stocky with a light complexion and wearing a dark hooded sweatshirt and dark jeans. This person pointed the gun at Lezama and pulled the trigger. Padilla described the second person with whom Lezama was fighting as slightly taller but a lighter build than the gunman, wearing a white T-shirt and blue jeans. Several days later, Padilla wrote next to defendant’s photograph in a photographic lineup: “The eye features of the picture seem familiar. When the person I saw with the gun looked at me, his eyes caught my attention. That seems to be what I recognize in the picture, the eye and nose area.” A few months later, Padilla did not identify defendant at a live lineup. At trial, Padilla was unable to say whether the person she identified in the live lineup was in the courtroom.
At the live lineup, Padilla identified someone else as the person she thought looked most like the shooter.
When Detective Christopher Barling arrived at the scene in the early hours of October 16, 2005, he noticed that Zuniga and Rosales, whose bodies were in the center of the backyard, both had bruising and abrasions, indicating that they had been in a fight. Each had suffered a single fatal gunshot wound. Barling found three expended .25-caliber Winchester casings: one near each of the bodies and a third in the kitchen.
Defendant was arrested for the murders of Zuniga and Rosales and the attempted murder of Lezama. In a search of defendant’s home, police found two .38-caliber handguns and .38-caliber ammunition in a closet. Although a box of Winchester .25-caliber cartridges was also found, no .25-caliber gun was located; the .25-caliber cartridges looked like the casings found at the scene of the shooting.
Like defendant, Alex A., Eduardo H., and Jesse L. were also members of the Street Villains. Each testified at defendant’s trial. Alex was 14 years old at the time of trial. He did not bring a gun to the party. When interviewed at the police station about a month after the shooting, Alex looked at police photographs and identified defendant as the shooter. At trial, Alex testified that he was at the party but did not recognize anyone; he heard shots but did not see the shooter or a gun; he did not know anyone named “Serio,” which was defendant’s gang moniker. He did not tell the police about a person at the party named Serio, or that Serio had or showed Alex a gun. He was high and drunk during his interview. Alex understood that snitches and rats “get smoked.”
Detective Barling testified that Alex did not appear to be under the influence during that interview; he behaved like a normal 12-year-old – his age at the time of the police interview. By contrast, when Alex testified at trial he acted like a “hard gang member with an attitude and using vulgarity and body mannerisms.” At the interview, Alex identified a photograph of defendant as the person Alex knew as “Serio” and the shooter. Alex’s audiotaped interview was played for the jury and they were given a transcript. (People’s exh. 8.)
Fifteen-year-old Eduardo testified. He had seen defendant around but did not recognize him as a member of the Street Villains. Eduardo never saw anyone at the party point or shoot a gun, but he heard two or three shots when the fighting started. When he heard the gunfire, Eduardo and his cousin left. A few days after the party, Eduardo was interviewed by detectives. At the time, he knew that someone had been killed. Initially, Eduardo denied and then later admitted being at the party. He told the officers other Street Villains were at the party, but he denied giving any names. He denied telling the detectives that: he saw Serio (defendant) at the party wearing a dark hooded sweatshirt, that Serio had or shot a gun, that Serio was the only person at the party with a gun, or that Serio mentioned or showed him either the gun or the clip. Eduardo was in custody when he was interviewed a second time. During this second interview, the detectives showed him pictures. At trial, he denied saying to the officers when he saw those pictures, “Whoa, you got him. That’s him.”
When Detective Barling interviewed Eduardo at the police station a few days after the shooting, Eduardo was being detained on an unrelated probation violation. Barling did not believe that Eduardo was the shooter because Eduardo did not match the description given by other witnesses. Barling had no evidence that Eduardo had a gun. It was Eduardo who first named defendant as the shooter. Eduardo’s audiotaped interview was played and the jury was provided with a transcript. (People’s exh. 11.) During a second interview, Eduardo told the officers that gang members had somehow learned that Eduardo, Alex, and Jesse were all “snitching.” The audiotape of this interview was also played for the jury and they were given a transcript. (People’s exh. 14.)
Sixteen-year-old Jesse testified that he was not at any party, but he heard about it afterwards. Jesse had not met defendant and did not know a “Serio.” He denied telling police that: he was at the party, heard gun shots, Serio was the shooter, and that he saw Serio shoot. When Jesse was interviewed a second time, he did not identify defendant as the shooter from photographs. The morning before Jesse testified, he told the prosecutor and Detective Barling that he was concerned for his family and did not want to testify. Jesse believed that snitches get killed and he was afraid.
Detective Andrew Moody, who was present at the interview, testified that Jesse was in custody on an unrelated matter when he was interviewed and identified the shooter as “Serio.” When Moody interviewed Jesse again the next day, he indentified a photograph of defendant as “Serio. A copy of the audiotape of this interview was played for the jury and they were provided a transcript. (People’s exh. 13.)
B. Defendant’s Case
Guadalupe Sanchez, the mother of defendant’s child, testified that defendant was once an active member of the Street Villains but had left the gang when Sanchez became pregnant. On the day of the shooting, she spent the day with defendant shopping for a Halloween costume for their child. That evening, they relaxed together at defendant’s home while their son napped. At midnight, Sanchez took the child. The next day, they resumed costume shopping then went back to defendant’s house to relax some more. Between the time defendant was arrested and the day she testified, Sanchez told her relatives that defendant was with her at the time of the shooting; the first time she spoke to defense counsel was the day before she testified. Defendant’s prior counsel never asked Sanchez whether she was with defendant at the time of the shooting. It never occurred to Sanchez to bring the information to the attention of anyone in law enforcement.
Defendant testified that when he was a member of the Street Villains his moniker had been “Kilo,” not “Serio.” He ended his involvement with the gang in 2001 or 2002. In 2002, he had a child with Sanchez and purchased a home; he worked as a machine operator for Electronic Data Services, made monthly mortgage payments and lived with his mother. Defendant maintained that the only contact he ever had with Alex was at a funeral in 2006. On that occasion, defendant advised Alex to get out of the gang and not waste his life. Defendant thought he may have also seen Eduardo at the funeral. Defendant had never met Jesse.
After he was arrested on November 4, 2005, defendant told the police that he was at work on October 15, 2005, not at a party, because that is what he then believed. He had not been on speaking terms with Sanchez when he was arrested. About a month and a half after his arrest, Sanchez reminded him that they had been together that day. Defendant immediately told his former attorney but he did not bring it to the attention of law enforcement. Defendant explained: “I didn’t want to tell you guys because you guys didn’t want to drop the case.” Defendant testified that he had never before seen the guns and ammunition that the police found in the search of his home.
DISCUSSION
The Failure to Instruct on Accomplice Testimony Was Harmless
Defendant contends he was denied a fair trial as a result of the trial court’s failure to instruct the jury sua sponte that it could not find defendant guilty based on the testimony of an accomplice absent other evidence to connect defendant with the commission of the offense. He argues that such an instruction was required because there was evidence that witnesses Alex, Eduardo, and Jesse were accomplices in the charged offenses. We conclude that there was no evidence to warrant accomplice instructions as to Jesse. As to Alex and Eduardo, even if an instruction were required, the failure to give it was harmless.
We understand that defendant is referring to CALCRIM No. 334, which instructs the jury to first decide whether named witnesses were accomplices to the charged crime; if so, their testimony alone is not sufficient to convict defendant but must be corroborated; and to view an accomplice’s testimony with caution.
Penal Code section 1111 (§ 1111) provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined 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.” An accomplice “must act ‘ “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging, or facilitating commission of, the offense.” ’ ” (People v. DeJesus (1995) 38 Cal.App.4th 1, 23 (DeJesus).)
For purposes of section 1111, a coconspirator is an accomplice. (People v. Garcia (2000) 84 Cal.App.4th 316, 325; DeJesus, supra, 38 Cal.App.4th at p. 23.) There are four elements to a conspiracy: “(1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy.” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024.)
Whether a person is an accomplice is generally a question of fact. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) Trial courts have a sua sponte duty to instruct on the rules governing accomplice testimony if the evidence at trial suggests that a witness could be an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 330.) To warrant an instruction, it is the defendant’s burden to prove by a preponderance of the evidence (including by reference to the prosecution’s evidence) that a witness is an accomplice. (People v. Snyder (2003) 112 Cal.App.4th 1200, 1219 (Snyder); DeJesus, supra, 38 Cal.App.4th at p. 23.)
In Snyder the defendant and two codefendants were charged with the murder of Lafayette resident Janet Daher occurring during a home invasion robbery. At trial, a witness testified that while he was selling drugs to the three perpetrators the day before the killing, he heard them discuss robbing a Fairfield drug dealer; the witness declined to drive the perpetrators to the robbery. The next day, the witness again declined to drive the perpetrators. That day, after unsuccessfully trying to find someone else to drive, the witness dropped the perpetrators off at the BART station without any plan to pick them up. That evening, the witness complied with a telephone request to pick up the perpetrators at a motel. As the witness was driving the perpetrators back to San Francisco, he heard them talking about a home invasion robbery they had committed in Lafayette that afternoon, the details of which matched the Daher home invasion. (Snyder, supra, 112 Cal.App.4th at p. 1211.) A codefendant testified that the witness had not wanted to be involved in the Fairfield robbery, but was interested in selling the perpetrators drugs if they obtained cash in the robbery. (Id. at pp. 1214-1215.) The trial court instructed the jury that the codefendant was an accomplice as a matter of law and his testimony therefore required corroboration. On appeal, the defendant complained that the trial court failed to sua sponte instruct either that the nonparty witness was an accomplice as a matter of law or that the jury was required to determine whether he was an accomplice. (Id. at p. 1218.) The appellate court affirmed, finding the evidence insufficient to warrant a conclusion by the jury that the witness was an accomplice. (Id. at p. 1219.) It reasoned that there was no evidence that the witness knew about the Lafayette robbery, which was completely unrelated to the plan to rob the Fairfield drug dealer. (Id. at p. 1221.)
In DeJesus the court found it was error, albeit harmless, to not give accomplice instructions where there was evidence that the witness tried to talk the perpetrator out of the killing several days before it happened; on the day of the killing, the witness went into a bathroom when the victim arrived, telling the perpetrator he would not be present in the room when the killing occurred; afterwards, the witness helped the perpetrator move the body. (DeJesus, supra,38 Cal.App.4th at pp. 22-24.)
Here, defendant did not establish by a preponderance of the evidence that Jesse had the requisite knowledge and intent relating to the charged offenses to establish that he was an accomplice or coconspirator. When interviewed by the police, Jesse admitted he was at the party and he saw defendant start shooting. Eduardo told the police that he saw Jesse arrive at the party with defendant in defendant’s car. Alex told the police that he saw Jesse walk into the backyard with defendant that night and that Jesse was involved in the fistfight that preceded the shooting. There was no evidence Jesse was himself armed or knew defendant was armed. There was no evidence of an agreement between Jesse and defendant to bring a gun to the party, much less to shoot anyone. No evidence suggested Jesse knew about any plan defendant may have had to shoot someone, or that Jesse facilitated or encouraged defendant in any way. Jesse’s only connection to the incident was that he was a member of the same gang as defendant, was at the party and got caught up in a fistfight that witnesses agreed involved almost everyone there that night. This is insufficient to make Jesse an accomplice, and the trial court had no sua sponte duty to give CALCRIM No. 334 as to him.
Somewhat more evidence connected Eduardo and Alex to the shooting. In his first interview with the police, Eduardo first denied he was at the party himself, but claimed that defendant called him after the party and said that Alex had snuck the gun into the party because, as a little kid, he would not be searched. Eduardo also said that he heard that both defendant and Alex fired the gun. Later in that same interview, Eduardo admitted he was at the party. Eduardo told the officers that as he was arriving, he saw Alex and Jesse arriving with defendant in defendant’s car; Eduardo saw Alex with the gun, which Eduardo described as a chrome .22-caliber, in his shoe, and then saw defendant with the gun in his pocket. As soon as Eduardo saw the gun, he walked away to another part of the backyard. About 20 minutes after arriving, Eduardo saw someone in a blue and white striped shirt arguing with one of the party givers, he then saw defendant and Alex start fighting with the person in the striped shirt. Soon it seemed like everyone, including the girls, was fighting. Eduardo then saw defendant pull out the gun and start shooting. Although Eduardo told the police that he did not participate in the fight, he admitted at trial that the fight started when a rival gang member asked Eduardo what he was looking at and Eduardo responded, “At you.” The rival gang member then punched Eduardo, Eduardo hit him back and “[t]hat’s what started it.”
Murder victim Rosales was wearing a blue and white striped shirt.
During his interview, Alex told the police that came to the party with several other people, not defendant. Alex later saw defendant walk into the backyard with Eduardo and Jesse. Almost immediately defendant showed Alex a black gun in his waistband and said, “Look what I got right here, like in case of something.” Alex denied bringing the gun into the party for defendant. Alex was not aware that there had been a fight earlier that evening, but about 20 minutes after he arrived at the party, Alex saw “a lot of guys start fighting.” The fight began when Eduardo asked a rival gang member, “Where you from?” When the person identified his gang, Eduardo “start[ed] disrespecting their – their ‘hood, you know, their gang.” This led to someone from the rival gang hitting Eduardo, which triggered the brawl. After the fistfight started, Alex heard gunshots and saw two people fall to the ground. He did not see defendant fire the gun, but the next day defendant told Alex that he “came up to them and blast them in the neck.”
Gang expert, Detective John Richardson, testified that shooters are usually somewhat more experienced gang members, but it is typical for younger members of the gang to carry the handgun for the shooter. This allows the younger members to “prove” themselves.
Detective Barling testified that, when he interviewed Alex in November 2005, Alex was under arrest for murder under a coconspirator theory, but the district attorney assigned to juvenile matters “declined prosecution on this case based on the totality of the investigation regarding [Alex].” Police did not suspect that Alex was the shooter.
Assuming this evidence was sufficient to require an instruction that the jury was required to determine whether Alex and Eduardo were coconspirators and if so, to view their testimony with caution, any error in failing to so instruct was harmless. “A trial court’s failure to instruct on accomplice liability under section 1111 is harmless if there is ‘sufficient corroborating evidence in the record.’ [Citation.] To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘ “[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 562-563; People v. Brown (2003) 31 Cal.4th 518, 556; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1163.) Only a portion of the accomplice’s testimony need be corroborated and it is not necessary that every element of the offense be established with corroborative evidence. (DeJesus, supra, 38 Cal.App.4th at p. 25.)
Here, there was abundant corroborating evidence connecting defendant to the charged offenses independent of Alex’s and Eduardo’s testimony. First, Jesse identified defendant as the shooter. Defendant’s photograph was identified by attempted murder victim Lezama, who said that defendant had a similar build and complexion as the man who shot him, although Lezama had failed to identify defendant at a live lineup. Witness Lopez also identified a photograph of defendant as looking similar to the shooter, although he too failed to identify defendant at the live lineup. Likewise, witness Padilla identified defendant as the shooter from a photograph, but failed to identify him at the live lineup and at trial.
Second, defendant was also circumstantially connected to the shootings by the discovery of a box of Winchester .25-caliber cartridges in his closet, which was the same brand and caliber of the casings found near the two bodies and in the kitchen. His explanation for their presence was lacking.
This evidence was sufficient corroborative evidence to make any failure in giving the accomplice instructions patently harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J., BIGELOW, J.