Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles Super. Ct. No. BA253861, William R. Pounders, Judge.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Bryant Barraza.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Nick Verdugo.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Bryant Barraza and Nick Verdugo were tried together before a jury and convicted of first degree murder, conspiracy to commit murder, assault with a firearm and related charges. The jury also found true several firearm-use and gang enhancement allegations. On appeal Barraza and Verdugo, each joining in the other’s arguments, primarily challenge several of the jury instructions, including those concerning accomplice testimony, conspiracy and assault with a firearm. They also contend the court erred in limiting their cross-examination of a witness and imposing certain sentence enhancements. We modify the judgments to correct unauthorized sentences imposed on both Barraza and Verdugo and, in all other respects, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
On May 22, 2000 15-year-old Ernesto Ortiz, Jr. was fatally shot near his home while playing basketball with friends. In connection with that homicide, an amended information jointly charged Barraza and Verdugo with conspiracy to commit murder and assault with a firearm (Pen. Code, § 182, subd. (a)(1)) (count 1), murder (§ 187, subd. (a)) (count 2), assault with a firearm on Ortiz’s father, Ernesto Ortiz, Sr. (§ 245, subd. (a)(2)) (count 3), and carrying objects into jail to facilitate an escape from custody (§ 4535) (count 6). Barraza was also charged with the attempted premeditated murder of a fellow jailhouse inmate (§§ 664, 187, subd. (a)) (count 4), assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 5) and attempting to dissuade a witness (§ 136, subd. (a)(2)) (count 7).
Statutory references are to the Penal Code.
The information also included several sentencing enhancement allegations against Barraza and Verdugo: As to counts 1 and 2 it was alleged Barraza had personally used and discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (b)-(d)) and a principal in the commission of the offense personally had used and discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (b)-(e)). As to count 3, it was alleged Barraza had personally used a firearm (§ 12022.5, subd. (a)) and a principal in the commission of the offense was armed with a firearm (§ 12022, subd. (a)(1)). As to count 4 it was alleged Barraza had personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). As to count 5 it was alleged Barraza had personally inflicted great bodily injury (§ 12022.7, subd. (a)). Finally, it was alleged as to all seven counts the offenses were committed for the benefit of, at the direction of and in association with a criminal street gang (§ 186.22, subd. (b)(1)).
2. The Conspiracy and the Murder
According to the evidence presented at trial, Barraza (also known as “Stranger”) and Verdugo (also known as “Musky”) were active members of the Arizona Maravilla (AMV) street gang. Peter Quijas (also known as “Pistol Pete”), Angel Martinez (also known as “Bugsy”) and David Lopez (also known as “Grumpy”) were also members of AMV.
In May 2000, after Martinez told Barraza, Verdugo, Quijas and Lopez he had been beaten up by members of the rival Marianna Maravilla gang (MMV), Barraza, Quijas and Verdugo devised a plan to retaliate by shooting a member of MMV. As crafted, the retaliation plan required Verdugo to drive a car into MMV territory and look for MMV gang members. When he spotted an MMV member, he would inform Quijas of the member’s whereabouts using a two-way radio. Quijas and Barraza would then drive to the scene and kill the MMV member. Barraza agreed to be the shooter. Lopez did not say anything during this conversation. He agreed to take Martinez home.
In accordance with the plan, Verdugo drove by himself to look for members of the MMV gang. Using his two-way radio, Verdugo contacted Barraza and Quijas and told them an MMV member known as “Young Guns” was wearing a Los Angeles Lakers jersey and playing basketball on a neighborhood court. Barraza and Quijas drove in a van to the location identified by Verdugo. Barraza got out of the van; Quijas remained in the driver’s seat. When the people on the basketball court saw Barraza, they ran. Ernesto Ortiz, Jr., who was not a member of any gang, ran in a different direction from the others -- to his house near the basketball court. Seeing that Ortiz was wearing a Lakers jersey and mistaking him for “Young Guns,” Barraza aimed his handgun and fired eight or nine shots at him. Ernesto Ortiz, Jr.’s father heard the gunshots, ran outside and saw Barraza shooting at his son. He screamed at his son to “run” and rushed to help him. Ernesto Ortiz, Jr. was shot running to his father and collapsed bleeding in his father’s arms. He later died from his gunshot wounds. Ernesto Ortiz, Sr. suffered a gunshot wound to his abdomen while running to aid his son.
3. The Investigation
A year after the murder, Lopez was incarcerated on an unrelated matter. Lopez told detectives he had information about the murder and implicated Barraza, Verdugo and Quijas, explaining the terms of the conspiracy and the manner in which it was executed. He also agreed to provide detectives with information about other crimes committed by the AMV gang. Based on information Lopez had provided, law enforcement officers searched Verdugo’s residence and recovered a police scanner and two-way radios.
Quijas, who was serving a life sentence for attempted murder in an unrelated case confirmed Lopez’s account of the conspiracy and murder. Quijas, who was also charged in the information in this case, pleaded guilty to conspiracy and murder as part of a negotiated agreement under which he was sentenced to an aggregate state prison term of 15 years to life, to run concurrently with the unrelated prison term he was serving. Apart from a commitment to provide Lopez with relocation assistance to protect him from possible retaliation, law enforcement did not offer Lopez anything else in exchange for his testimony in this case.
Both Ernesto Ortiz, Sr. and his daughter Erlinda Ortiz, who also witnessed the shooting, identified Barraza as the shooter in a line-up and at trial.
4. Barraza’s Offenses While in Custody
On June 15, 2003, while in custody at the Los Angeles County Jail awaiting trial for Ernesto Ortiz, Jr.’s murder, Barraza used a shank and a waist chain to stab Raul Carrerra, a MMV member incarcerated at the same facility.
During Lopez’s preliminary hearing testimony in this case, Barraza simulated a firearm with his hand and pointed it at Lopez. Barraza later explained he was not simulating a gun, but rather using his finger to make an obscene gesture toward Lopez.
On September 10, 2003, while Barraza and Verdugo were being transported by a Los Angeles County Sheriff’s Department van from the county jail to the courthouse, Barazza told Verdugo he had hidden handcuff keys inside his rectum and explained how to use the keys to unlock the handcuffs. Their conversation was recorded. When they returned to the county jail, Barraza was escorted to medical services to be X-rayed. The X-ray confirmed the presence of a foreign object in Barraza’s rectum.
5. The Convictions and Sentences
Quijas and Lopez both testified at trial, confirming each other’s account of the conspiracy and murder. The jury found Barraza not guilty of counts 4 (attempted murder of a jail inmate) and 7 (attempt to dissuade a witness) and guilty on counts 1, 2, 3 and 5, and found true the special allegations associated with those counts. Barraza was sentenced to an aggregate state prison term of 74 years to life.
The jury found Verdugo guilty on all counts against him and found the special allegations true. Verdugo was sentenced to an aggregate state prison term of 57 years eight months to life.
Prior to trial, Verdugo withdrew his not guilty plea as to count 6 and pleaded guilty to that count.
DISCUSSION
1. The Failure To Instruct the Jury with CALJIC No. 3.13’s Admonition Concerning an Accomplice’s Inability To Corroborate Another Accomplice, If Error, Was Harmless
a. Governing law
Section 1111 prohibits conviction on the testimony of an accomplice -- defined by the statute 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” -- unless the testimony is “corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.” The reason for the corroboration requirement is apparent: An accomplice is likely to implicate the defendant in order to shift the blame and minimize his or her own culpability. (People v. Tobias (2001) 25 Cal.4th 327, 331; People v. Hayes (1999) 21 Cal.4th 1211, 1271.)
To be “chargeable with an identical offense” and thus considered an accomplice within the meaning of section 1111, a witness must be found to be a principal under section 31. (People v. Lewis (2001) 26 Cal.4th 334, 368; People v. Williams (2008) 43 Cal.4th 584, 636; see also § 31 [defining principal as “[a]ll persons 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”].) If the evidence establishes as a matter of law the witness was an accomplice, the court must so inform the jury and instruct it on the corroboration requirement. (Lewis, at p. 329 [when “‘“facts with respect to the participation of a witness in the crime for which the accused is on trial are clear and not disputed, it is for the court to determine whether he is an accomplice”’”]; People v. Hayes, supra, 21 Cal.4th at p. 1271.) Likewise, if there is sufficient evidence from which a reasonable juror could find the witness to be an accomplice, the trial court must instruct the jury with the definition of accomplice contained in section 1111 and inform the jury, if it finds by a preponderance of the evidence a witness is an accomplice in accordance with the legal definition, the witness’s testimony implicating the defendant must be independently corroborated before it may be considered. (Lewis, at p. 329; People v. Zapien (1993) 4 Cal.4th 929, 982.) In either situation the jury must also be instructed the testimony of the accomplice witness is to be viewed with distrust. (Zapien, at p. 982.)
b. Relevant proceedings
Although the trial court provided detailed instructions on accomplice testimony -- defining the term accomplice, identifying Quijas as an accomplice as a matter of law and explaining the requirement of corroboration -- the court refused defense counsel’s request to include CALJIC No. 3.13 (testimony of one accomplice cannot be used to corroborate testimony of another accomplice) in the instructions, noting that such an instruction would also require it to give CALJIC No. 3.19, instructing the jury to determine whether Lopez was also an accomplice. The trial court concluded neither instruction had been requested in a timely fashion; and, in any event, because there was no evidence of Lopez’s accomplice liability, neither instruction was warranted.
The trial court gave the following instructions on accomplice testimony: “An accomplice is a person who was subject to prosecution for the identical offense charged in counts 1, 2 and 3 against the defendants on trial by reason of aiding and abetting or being a member of a conspiracy, criminal conspiracy. You cannot find a defendant guilty based upon the testimony of an accomplice, unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense. Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated out of court was true.
CALJIC No. 3.13 states, “The required corroboration of the testimony of an accomplice may not be supplied by the testimony of any or all of his accomplices, but must come from other evidence.”
CALJIC No. 3.19 states, “You must determine whether witness ____ was an accomplice as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that ___ was an accomplice in the crime[s] charged against the defendant.”
The parties first reviewed proposed jury instructions with the court following the close of evidence on May 18, 2006. After considering the instructions, the court told all parties to make a final check for corrections because it was unlikely to make additional corrections the following day. Counsel for Verdugo requested “an informant instruction” as to Lopez. When the court asked what instruction would be applicable, Verdugo’s counsel told the court he would find it. The court responded that counsel only had “the lunch break” and “overnight” to find the applicable instruction.
c. In light of the independent corroborating evidence, any error in failing to instruct the jury with CALJIC Nos. 3.13 and 3.19 was harmless
Barraza and Verdugo contend the trial court had a sua sponte duty to give the full complement of accomplice instructions in this case whether or not they were requested in a timely manner, or at all. (See People v. Frye (1998) 18 Cal.4th 894, 965-966; People v. Hayes, supra, 21 Cal.4th at pp. 1270-1271.) Such instructions, they argue, necessarily should have included CALJIC No. 3.19’s advisement to consider whether defendants had proved Lopez was an accomplice and CALJIC No. 3.13’s admonition that testimony of one accomplice cannot be used to corroborate the testimony of another accomplice. (See People v. Tewksbury (1976) 15 Cal.3d 953, 958 [“[t]he question of Mary’s status as an accomplice is crucial, for if she is an accomplice then her testimony cannot be used to corroborate Sheila’s testimony as the required corroboration must come from a source other than another accomplice”].) Because the instructions were incomplete, they contend, it is reasonably likely the jury believed that the accomplice instructions actually given related only to Quijas and that Lopez’s testimony could be used to corroborate Quijas’s.
In People v. Sanders (1995) 11 Cal.4th 475, 535, the Supreme Court held, when the full panoply of accomplice instructions is otherwise correctly given, there is no sua sponte duty to instruct that one accomplice may not corroborate another. In effect, the Court suggested CALJIC No. 3.13’s admonition that the required corroboration of an accomplice may not be supplied by the testimony of another accomplice is tantamount to a pinpoint instruction highlighting and clarifying the corroboration requirement and need not be given in conjunction with the other, complete accomplice instructions absent a defense request. (See Sanders, at p. 534.)
However, unlike the instant case, the jury in Sanders had been instructed in accordance with CALJIC No. 3.19 as to the defendant’s burden to prove a witness was an accomplice by a preponderance of the evidence. It was that instruction that led the Court to conclude it was not reasonably likely the jury believed the accomplice instructions, generally, and the corroboration requirement, in particular, applied only to the witness identified by the trial as an accomplice as a matter of law and not to any other witnesses. Moreover, the Court’s concern in Sanders was directed to the trial court’s sua sponte duty to instruct the jury that the testimony of one accomplice cannot be used to corroborate another, not its duty to give CALJIC No. 3.13 upon a defense request as occurred in this case.
Whether it was error to omit the requested instructions, therefore, turns principally on an assessment whether there was sufficient evidence Lopez was an accomplice to any of the crimes charged. If so, at the very least, an instruction comparable to CALJIC No. 3.19 relating to Lopez should have been given. (See People v. Frye, supra, 18 Cal.4th at pp. 965-966; see generally People v. Manriquez (2005) 37 Cal.4th 547, 581 [trial court must give appropriate instructions whenever there is evidence substantial enough to merit consideration by jury, but not when the evidence supporting instruction is minimal or insubstantial].) The People urge CALJIC Nos. 3.13 and 3.19 were unwarranted in this case. Although Lopez was present at the time the conspiracy was planned and later at the site of the shooting, mere presence at the scene of the crime or even knowledge a crime will occur, without evidence of aid or encouragement for its commission, is not enough to warrant giving accomplice liability instructions. (See People v. Lewis, supra, 26 Cal.4th at p. 369 [“[a]lthough witness was at the scene of the crime and had intimate knowledge of the robbery and murder, the fact without more merely means that he was an eyewitness and not necessarily an accomplice to the crimes”]; People v. Stankewitz (1990) 51 Cal.3d 72, 90; see also In re Nathaniel C. (1991) 228 Cal.App.3d 990, 998-999 [mere association with perpetrators of crime does not establish participation in conspiracy].) Barraza and Verdugo, on the other hand, emphasize that Lopez not only was present at the scene, but also he left immediately after the shooting in the same direction as Barraza and Verdugo, suggesting he was part of the retaliation plan.
Lopez testified he was driving by the basketball court on route to Martinez’s home when he saw the shooting.
We need not determine whether this evidence about Lopez was sufficient to require giving CALJIC Nos. 3.13 and 3.19, for it is not reasonably likely either Barraza or Verdugo would have received a more favorable verdict on counts 1, 2 or 3 had either or both of those instructions been given. (See People v. Lewis, supra, 26 Cal.4th at p. 371 [applying harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837 to contention concerning omission of accomplice instructions]; People v. Hayes, supra, 21 Cal.4th at p. 1271.)
A trial court’s failure to instruct on accomplice liability is harmless if there is sufficient corroborating evidence in the record. (People v. Williams, supra, 43Cal.4th at p. 638; People v. Lewis, supra, 26 Cal.4th at p. 370; People v. Fauber (1992) 2 Cal.4th 792, 834.) “‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]’ [Citation.] The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’” (Lewis, at p. 370.)
There was sufficient corroborating evidence in the record to support Lopez’s testimony as to the conspiracy and shooting and satisfy the jury as to his veracity. Both Ernesto Ortiz, Sr. and Erlinda Ortiz identified Barraza as the shooter, confirming Lopez’s testimony. The police also recovered a police scanner and two-way radios from Verdugo’s residence, items Lopez had specifically identified as having been used by Verdugo and Barraza to execute their retaliation plan. Finally, expert testimony on the gang war between the AMV gang and the MMV gang supported Lopez’s explanation for the motive for the shooting. Based on this record, any error in failing to instruct the jury with CALJIC Nos. 3.13 or 3.19 was harmless.
2. The Court Did Not Err in Instructing the Jury on the Elements of a Conspiracy To Commit Murder and Assault with a Firearm
a. Elements of conspiracy
“‘A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’” (People v. Jurado (2006) 38 Cal.4th 72, 120; see also People v. Russo (2001) 25 Cal.4th 1124, 1131.) The specific intent element of conspiracy “‘“divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. . . . To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.”’” (People v. Swain (1996) 12 Cal.4th 593, 600; see People v. Petznick (2003) 114 Cal.App.4th 663, 680-681 [“for defendant to be guilty of the crime of conspiracy to commit murder, he had to have been one of the participants who harbored the specific intent to kill”].)
b. The court’s instructions
The trial court instructed the jury on the charge of conspiracy to commit murder and assault with a firearm using CALJIC No. 8.69, which, as given in this case, provides: “Defendants are accused in Count 1 of having committed the crime of conspiracy to commit murder and assault with a firearm in violation of section 182, subdivision (a)(1) of the Penal Code. [¶] Every person who conspires with any other person or persons to commit the crime of murder is guilty of a violation of Penal Code section 182, subdivision (a)(1), a crime. [¶] Murder is the unlawful killing of a human being with malice aforethought. [¶] A conspiracy to commit murder is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. [¶] The crime of conspiracy to commit murder requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being. [¶] In order to find a defendant guilty of conspiracy, in addition to proof of the lawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the Information to be an overt act and that the act found to have been committed was an overt act. It is not necessary to the guilt of any particular defendant that defendant personally committed an overt act, if he was one of the conspirators when the overt act was committed. [¶] The term ‘overt act’ means any step taken or act committed by one [or more] of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy. [¶] To be an ‘overt act,’ the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or an unlawful act. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. Two or more persons entered into an agreement to kill unlawfully another human being and/or to commit an assault with a firearm; [¶] 2. At least two of the persons specifically intended to enter into an agreement with one or more other persons for that purpose; [¶] 3. At least two of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being; and/or the specific intent to commit an assault with a firearm and [¶] 4. An overt act was committed in this state by one or more of the persons who agreed and intended to commit murder and/or assault with a firearm.”
The court also instructed the jury, in accordance with CALJIC No. 6.22, that it must separately consider whether each of the defendants was guilty of the alleged conspiracy to commit murder and/or assault with a firearm: “Each defendant in this case is individually entitled to, and must receive, your determination whether he was a member of the alleged conspiracy. As to each defendant, you must determine whether he was a conspirator by deciding whether he willfully, intentionally, and knowingly joined with any other or others in the alleged conspiracy. [¶] Before you may return a guilty verdict as to any defendant of the crime of conspiracy, you must unanimously agree and find beyond a reasonable doubt, that (1) there was a conspiracy to commit the crimes of Murder and/or Assault with a Firearm, and (2) a defendant willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. You must also unanimously agree and find beyond a reasonable doubt, that an overt act was committed by one of the conspirators. You are not required to unanimously agree as to who committed an overt act, or which overt act was committed, so long as each of you finds beyond a reasonable doubt, that one of the conspirators committed one of the acts alleged in the Information to be overt acts.” The court provided the jury with a list of the five overt acts alleged in the information, including “overt act no. 5”: “On or about May 22, 2000, Barraza exited the van and fired several shots from a handgun at a group of male Hispanic youths playing basketball, killing Ernest[o] Ortiz, Jr.”
c. The court did not err by listing the shooting of Ernesto Ortiz, Jr. as one of the overt acts the jury could consider in determining Barraza’s and Verdugo’s culpability
Barraza and Verdugo contend the trial court erred in instructing the jury it could consider the shooting in determining whether the overt act element had been satisfied. They argue, because conspiracy is an inchoate, prefatory crime, the object of the conspiracy cannot, by definition, be “in furtherance” of the conspiracy. The argument is meritless. “Commission of the target offense in furtherance of the conspiracy satisfies the overt act requirement.” (People v. Jurado, supra, 38 Cal.4th at p. 121.)
Barraza and Verdugo also argue the conspiracy charge itself and firearm-use findings in connection with it are not supported by substantial evidence. Specifically, because it cannot be determined whether the jury “erroneously” relied on overt act number 5 (the shooting) in reaching its conspiracy verdict, their conspiracy convictions are not supported by substantial evidence. In addition, they argue, because the firearm use occurred during the commission of the target offense, after the conspiracy had been completed, it cannot be used to enhance the sentences for conspiracy. Both arguments are premised on the erroneous assertion the jury improperly considered the target offense as an overt act in furtherance of the conspiracy. Accordingly, they too fail as a matter of law. (See Jurado, supra,38 Cal.4th at pp. 121-122 [identifying target offense as one of the overt acts jury may consider in determining defendant’s culpability for conspiracy not improper].)
In arguing the imposition of any firearm-use enhancements for the conspiracy was improper, both Barraza and Verdugo assume the trial court imposed a 25-year-to-life term for the firearm-use enhancement in accordance with the jury’s finding pursuant to section 12022.53, subdivisions (d) and (e)(1). In fact, the record reflects the trial court imposed and then stayed a 25-year-to-life term for the conspiracy itself, but did not impose the firearm-use enhancement under section 12022.53. As we explain in section 5, below, the omission of this firearm-use enhancement, found true by the jury, resulted in an unauthorized sentence that we correct on appeal. (See § 12022.53, subd. (h) [“notwithstanding [s]ection 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section”]; People v. Jones (2007) 157 Cal.App.4th 1373, 1383 [trial court has no discretion to strike § 12022.53 enhancement]; see also People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [appellate court may modify unauthorized sentence on its own even if not raised by parties on appeal and even if results in greater sentence].)
d. The trial court’s jury instructions did not permit the jury to find Barraza and Verdugo guilty of conspiracy to commit murder without regard to whether either of them personally intended to kill
Focusing on the trial court’s instruction that, to prove conspiracy to commit murder, the People must establish “at least two of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being,” Barraza and Verdugo argue the jury may have understood it could convict both of them on the conspiracy charge even if it found only one of them specifically intended to kill Ernesto Ortiz, Jr. We do not agree there is a “reasonable likelihood” the jury understood the court’s conspiracy instructions, viewed in their entirety, in this manner. (See People v. Harrison (2005) 35 Cal.4th 208, 252 [defendant’s argument that jury was confused by court’s instruction rejected when there was “no reasonable likelihood the jury was confused and misconstrued or misapplied the instruction”]; People v. Osband (1996) 13 Cal.4th 622, 679 [appellate court reviews claim of ambiguity in instruction by determining whether, in light of all the instructions given, “‘there is a reasonable likelihood that the jury construed or applied the challenged instruction[s] in an objectionable fashion’”]; People v. Cain (1995) 10 Cal.4th 1, 36 [jury instructions reviewed as whole to determine if there is reasonable likelihood jury understood the instructions to permit conviction on improper basis].)
CALJIC No. 8.69 provides the option of instructing “[Each] [At least two] of the persons to the agreement harbored express malice aforethought, namely a specific intent to kill unlawfully another human being.” The Use Note to CALJIC No. 8.69 (Spring 2007 ed.) at page 409 explains, “The alternate bracketed wording has been provided . . . to accommodate the situation where there is a feigned accomplice.” The comparable portion of the new Judicial Council approved instruction provides, “At the time of the agreement, the defendant and [one or more of] the other alleged member[s] of the conspiracy intended that one or more of them would intentionally and unlawfully kill.” (Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 563.)
Even though no objection was made in the trial court to the use of this version of CALJIC No. 8.69, Barraza and Verdugo have not forfeited their right to raise the issue on appeal to the extent the purported error affects their “substantial rights.” (§ 1259 [“[t]he appellate court may also review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”]; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 [defendant did not waive right to object to instruction alleged to be incorrect statement of law and given in violation of due process]; People v. Van Winkle (1999) 75 Cal.App.4th 133, 139 [defendant’s challenge to constitutionality of jury instructions not waived for failure to object because “the constitutional right to have all elements of a criminal offense proved beyond a reasonable doubt is substantial”].)
The trial court correctly defined a conspiracy to commit murder as “an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that murder, followed by an overt act,” and properly elaborated on that definition by instructing that a conspiracy to commit murder “requires proof that the conspirators harbored express malice aforethought, namely, the specific intent to kill unlawfully another human being” and that to find a defendant guilty of such a conspiracy there must be “proof of the unlawful agreement and specific intent.” The court additionally instructed the jury it must consider the conspiracy charge separately as to each defendant and, as to each of them, it must find beyond a reasonable doubt “there was a conspiracy to commit the crime of murder” and that particular defendant “willfully, intentionally, and knowingly joined with any other or others in the alleged conspiracy.” When viewed in context, the “at least two” language challenged by Barraza and Verdugo simply told the jury that in this case -- in which a conspiracy among Barraza, Verdugo and Quijas was alleged -- it need not find both Barraza and Verdugo guilty of conspiracy to commit murder in order to find either of them guilty of that offense.
The implausibility of any jury confusion as to the required specific intent is confirmed by its findings as to both Barraza and Verdugo that the murder was premeditated and deliberated. The jury’s verdict that both Barraza and Verdugo were guilty of premeditated murder necessarily included a finding that both harbored the specific intent to kill Ortiz Jr. A finding that Verdugo had aided and abetted the premeditated murder necessarily included a finding that he, not simply Barraza, specifically intended to inflict death. (See People v. Jurado, supra, 38 Cal.4th at p. 123 [even though instruction on conspiracy omitted mention of required specific intent to commit target offense, omission was harmless beyond a reasonable doubt; jury’s finding killing was premeditated and deliberated necessarily included finding defendant had specific intent to kill].)
3. The Trial Court’s Failure To Define Assault, Although Error, Was Not Prejudicial
The court instructed the jury on the two assault crimes: “Defendants are accused in Count 3 of having committed an [a]ssault with a [f]irearm in violation of section 245, subdivision (a)(2) of the Penal Code, a crime. Defendant Barraza is accused in Count 5 of having committed an [a]ssault with a [d]eadly [w]eapon in violation of section 245(a)(1) of the Penal Code. [¶] Every Person who commits an assault upon the person of another with a deadly weapon or instrument, other than a firearm or by means of force likely to produce great bodily injury is guilty of a violation of section 245, subdivision (a)(1). Every person who commits an assault upon the person of another with a firearm is guilty of a violation of section 245, subdivision (a)(2) of the Penal Code, a crime. [¶] A ‘deadly weapon’ is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury. [¶] ‘Great bodily injury’ refers to a significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm. [¶] A firearm includes a pistol, revolver, handgun, rifle or shotgun. [¶] In order to prove either crime, each of the following elements must be proved: [¶] 1. A person was assaulted; and 2. The assault was committed with a deadly weapon or instrument, other than a firearm or by means of force likely to produce great bodily injury, or [¶] the assault was committed with a firearm.”
The instructions did not explain the term “assault,” statutorily defined as “an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery.” (§ 240; see People v. Williams (2001) 26 Cal.4th 779, 786 [assault occurs “whenever‘“[t]he next movement would, at least to all appearances, complete the battery”’”].) In that regard, the instructions were incomplete. (See People v. Hoyos (2007) 41 Cal.4th 872, 915 [although court has no sua sponte duty to define terms that are commonly understood in English language, trial court has sua sponte duty to define terms that have “‘a technical meaning peculiar to the law’”]; People v. Simington (1993) 19 Cal.App.4th 1374, 1380-1381 [term “assault” is one of those terms with a technical meaning peculiar to the law and therefore must be defined in the instructions].) Nonetheless, the omission was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 1283, 18 L.Ed.2d 241] [defendant’s due process right to have jury determine every element of offense assessed under harmless beyond a reasonable doubt standard].)
In connection with count 3 (assault with a firearm against Ernesto Ortiz, Sr.), the jury expressly found Barraza had personally used a firearm within the meaning of section 12022.5, subdivision (a)(1), that is, he “intentionally displayed a firearm in a menacing manner, intentionally fired it or intentionally struck or hit a human being with it.” (See CALJIC No. 17.19; see also Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 3146 [“someone personally uses a firearm if he or she intentionally does any of the following: 1. Displays the weapon in a menacing manner; 2. Hits someone with the weapon; or 3. Fires the weapon”].) It was undisputed at trial that the same gunman who had shot and killed Ernesto Ortiz, Jr. had shot and wounded Ernesto Ortiz, Sr. in the process. In finding the firearm-use enhancement true as to both Barraza and Verdugo, the jury necessarily found, beyond a reasonable doubt, Barraza (and Verdugo as an aider and abetter) had both the present ability to commit and did commit a battery on Ernesto Ortiz, Sr. Having found Barraza (and vicariously, Verdugo) committed the battery, it necessarily concluded he (and Verdugo) had committed an assault. (People v. Simington, supra, 19 Cal.App.4th at p. 1381 [omission of definition of assault harmless when jury found the completed crime, a battery, had been committed]; see generally People v. Kobrin (1995) 11 Cal.4th 416, 428, fn. 8 [failure to give instruction is harmless error if factual question posed by omitted instruction is necessarily resolved adversely to defendant under other, properly given instructions].)
Barraza’s contention the omission prejudiced his case in connection with count 5 (aggravated assault against Carrera) fails for a similar reason. Having expressly found true the special allegation Barraza had inflicted great bodily injury on Carrera in connection with count 5, the jury necessarily determined Barraza had committed a battery on him. That conclusion encompassed a finding Barraza had committed an assault. (People v. Simington, supra, 19 Cal.App.4th at p. 1381.)
4. The Trial Court Did Not Err in Limiting Lopez’s Testimony
After Lopez had testified at trial to his membership with the AMV gang and his prior experiences in fighting others on behalf of the gang, the defense attempted to elicit testimony on cross-examination about specific, unrelated missions Lopez had conducted for AMV. The trial court sustained the People’s objection, explaining, “[Y]ou can’t go through his entire detail of everything he’s done as a gang member. He’s an admitted [gang] member, he’s indicated what he’s been doing, not shooting people but fighting. What more is there to do, other than to continue the course? . . . You’ve already made the point.”
Barraza and Verdugo assert whether, and to what extent, Lopez had embarked on retaliation missions was, at the very least, relevant to whether he had engaged in crimes of moral turpitude, a factor that would tend to undermine his credibility. Accordingly, they argue, the trial court erred in sustaining the People’s objection to this testimony and, as a result, violated their constitutional right to confront (cross-examine) the witnesses against them.
“As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [constitutional] right to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834.) “Trial judges retain ‘wide latitude in so far as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant’”; its ruling to admit or exclude impeachment evidence will be upheld unless it “‘exercised its discretion in any arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice.’” (People v. Ledesma (2006) 39 Cal.4th 641, 705; see People v. Cudjo (1993) 6 Cal.4th 585, 611 [“‘[trial c]ourts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice’”].)
At the time defense counsel attempted to elicit testimony about Lopez’s prior gang-related crimes, Lopez’s gang affiliation had been established and descriptions of many of his criminal activities had already been admitted into evidence. Whatever marginal relevance Lopez’s additional gang activities may have had to undermine his veracity, the court’s exclusion of this cumulative evidence was not arbitrary, capricious or patently absurd resulting in a miscarriage of justice. (See People v. Ledesma, supra, 39 Cal.4th at p. 705 [trial court did not err in sustaining objections to defense questions about prosecution witness’s involvement in prostitution and the use and distribution of drugs; when witness testified she had felony convictions for burglary and petty theft with a prior and had been to jail many times and had used drugs, any further evidence of criminal activities relevant to her credibility was cumulative]; People v. Jennings (1991) 53 Cal.3d 334, 372 [“[a]lthough we recognize that a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his favor [citations], ‘[t]his does not mean that an unlimited inquiry may be made into collateral matters; the proffered evidence must have more than “slight-relevancy” to the issues presented’”].)
5. The Judgment Is Modified To Correct Unauthorized Sentences
There are several discrepancies between the trial’s court’s oral pronouncement of judgment as to Verdugo, as reflected in the reporter’s transcript of the sentencing hearing, and the sentences imposed as recorded in the clerk’s minute order and the abstract of judgment that require correction. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [record of court’s oral pronouncement controls over clerk’s minute order]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment that does not accurately reflect oral judgment of sentencing court is clerical error that may be corrected by appellate court on its own motion or upon application of parties].) In addition, as we indicated to counsel for all parties in our requests for supplemental briefing on sentencing issues, the trial court committed several errors in sentencing Barraza and Verdugo that resulted in unauthorized sentences that must be modified on appeal. (See People v. Smith (2001) 24 Cal.4th 849, 854 [unauthorized sentence may be corrected at any time whether or not there was an objection in the trial court]; People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [appellate court may modify unauthorized sentence even if not raised by parties in appeal].)
On count 3, the aggravated assault against Ernesto Ortiz, Sr., the court orally sentenced Verdugo to the middle term of three years, plus a one-year firearm-use enhancement under section 12022, subdivision (a)(1), and a middle term three-year gang enhancement (§ 186.22, subd. (b)(1)(A)), for an aggregate term of seven years. However, the minute order for September 28, 2006 and the abstract of judgment reflect imposition of the upper term of four years for the underlying offense, a one-year firearm use enhancement under section 12022.5 and an upper term four-year gang enhancement (§ 186.22, subd. (b)(1)(A)), for an aggregate term of nine years.
“[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstances in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) In such circumstances “[a]ppellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record of sentencing.” (Ibid.)
First, in connection with count 3 (assault with a firearm on Ernesto Ortiz, Sr.) the court imposed a one-year firearm enhancement on Verdugo pursuant to section 12022, subdivision (a)(1), consistent with the jury’s verdict. That section provides, “[A]ny person who is armed with a firearm in commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of the offense.” As the Attorney General concedes, because “arming” is an element of the underlying offense of assault with a firearm (People v. Bland (1995) 10 Cal.4th 991, 997 [a person is “armed” with a firearm when he or she has it available for use in either offense or defense]; § 245, subd. (a)(2)), the court erred in imposing the section 12022 enhancement on Verdugo for this offense. (§ 12022, subd. (a)(1); cf. § 12022.5, subd. (d) [“[n]otwithstanding the limitation in [§ 12022.5] subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used”]; People v. Ledesma (1997) 16 Cal.4th 90, 93 [firearm-use enhancement under § 12022.5 must be imposed in accordance with § 12022.5, subd. (d), to enhance § 245, subd. (a)(2), conviction notwithstanding limitation in 12022.5, subd. (a), which provides enhancement shall not be imposed when use of firearm is element of offense].) Accordingly, we modify Verdugo’s sentence to strike the count 3, one-year firearm enhancement.
In contrast to section 12022.5, subdivision (d), which specifically states the enhancement shall be imposed even when firearm use is an element of the offense, no similar language exists in section 12022, the enhancement alleged and found true as to Verdugo.
Second, the trial court at sentencing imposed a three-year gang enhancement on Verdugo in connection with count 3. However, because the underlying offense of assault with a firearm is a serious felony under section 1192.7, subdivision (c)(31), the trial court was required to impose a five-year gang enhancement in connection with that count. (See § 186.22, subd. (b)(1)(B) [“if the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years”].)
In a supplemental letter brief to this court, Verdugo acknowledges section 186.22, subdivision (b)(1)(B), as written, requires imposition of a five-year gang enhancement, but argues the language mandating the five-year enhancement for a serious felony was not in existence when the offense was committed. He is mistaken. The offenses for which Verdugo was charged in this case were committed on May 22, 2000. The governing language in section 186.22, subdivision (b)(1)(B), was adopted by the passage of Proposition 21, which was approved by the electorate on March 7, 2000, and became effective March 8, 2000. (See West Ann. Pen. Code (2008 Supp.) foll. § 186.22, pp. 151-152.)
Third, in connection with count 1, conspiracy to commit murder and assault with a firearm, the trial court imposed the prescribed term of 25 years to life on both Barraza and Verdugo (§§ 182, subd. (a)(1), 187, subd. (a), 245, subd. (a)(2)), and then properly stayed that term pursuant to section 654. (People v. Hernandez (2003) 30 Cal.4th 835, 866 [prohibition against multiple punishment in § 654 bars punishment for both conspiracy to commit murder and murder unless murder was not target of conspiracy].) However, the court failed to impose (and then stay) the mandatory firearm-use enhancement under section 12022.53, subdivision (d), pursuant to the jury’s true finding on that special allegation. Imposition of the section 12022.53, subdivision (d), enhancement is mandatory. (§ 12022.53, subd. (h) [“[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section”]; see fn. 8, above.) The proper course of action for the trial court was to impose and then stay the enhancement. (See People v. Gonzalez (June 2, 2008, S149898) __ Cal.4th __ [2008 Lexis 6664]; People v. Guilford (1984) 151 Cal.App.3d 406, 411.)
As to Verdugo the jury found true the special allegations under section 12022.53, subdivisions (d) and (e)(1) -- that he was a principal in the commission of the offense, that he violated section 186.22, subdivision (b) (the felony was committed for the benefit of a criminal street gang), and another principal in the offense (Barraza) personally discharged a firearm proximately causing death or great bodily injury.
Verdugo pleaded no contest to count 6 (carrying things into prison to facilitate an escape) (§ 4535), but did not admit any of the special allegations relating to that count, including the gang enhancement. The court’s oral pronouncement of judgment, however, included a gang enhancement for count 6, although no such enhancement is reflected in the minute order or abstract of judgment. Because Verdugo did not admit the gang enhancement as to count 6 and the jury made no finding on that special allegation, it was error to impose the enhancement. (§ 1170, subd. (e) [for an enhancement to be imposed, it must be “alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact”].) Nonetheless, we need not modify the judgment because the error does not appear in either the minute order or abstract of judgment.
DISPOSITION
As to both Barraza and Verdugo, the judgment is modified to include imposition of a 25-year-to-life firearm-use enhancement under section 12022.53, subdivision (d) (Barraza) or section 12022.53, subdivisions (d) and (e)(1) (Verdugo), on count 1, in addition to the 25-year-to-life term for conspiracy to commit murder and assault with a firearm, all stayed pursuant to section 654. As to Verdugo only, the judgment is also modified as to count 3 to strike the firearm enhancement under section 12022, subdivision (a), and to replace the four-year gang enhancement imposed under section 186.22, subdivision (b)(1)(A), with a five-year enhancement pursuant to section 186.22, subdivision (b)(1)(B). As modified, the judgment is affirmed. The abstract of judgment is ordered corrected to reflect these changes. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: WOODS, J. ZELON, J.
“To corroborate the testimony of an accomplice, there must be evidence of some act or fact related to the crime which, if believed by itself and without any aid, interpretation or direction from the testimony of the accomplice tends to connect the defendant with the commission of the crime charged; however, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged or that it corroborate every fact to which the accomplice testifies. In determining whether an accomplice has been corroborated, you must first assume that the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime. If there is no independent evidence which tends to connect the defendant with the commission of the crime, the testimony of the accomplice is not corroborated. If there is independent evidence which you believe, then the testimony of the accomplice is corroborated. . . .
“If the crimes of conspiracy, murder and assault with a firearm were committed by anyone, the witness, Peter Quijas, was an accomplice as a matter of law, and his testimony is subject to the rule requiring corroboration. To the extent that an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining with care and caution and in light of all the evidence in this case.”
A few days later, on May 22, 2006, following closing arguments in which the jury was urged to find Lopez an accomplice and to view his testimony with caution, Verdugo’s counsel requested for the first time the trial court instruct the jury in accordance with CALJIC No. 3.13. The court denied the request, in part, on the ground counsel had had several opportunities to propose the corroboration instruction and had failed to do so in a timely fashion.