Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F09900642 Edward Sarkisian, Jr., Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted Gustavo Bautista and his brother, Luis Manuel Bautista, of first degree murder and other crimes related to the murder of Jesus Torres. (Pen. Code, § 187, subd. (a).) Gustavo argues that his convictions must be overturned because of insufficiency of the evidence, erroneous admission of evidence, Aranda/Bruton error, and prosecutorial and judicial misconduct.
We will refer to Gustavo Bautista and Luis Bautista by their first names, not out of disrespect but to avoid any confusion to the reader. Collectively, we will refer to them as defendants.
All further statutory references are to the Penal Code unless otherwise noted.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton).
We agree with one of Gustavo’s arguments. We reverse his conviction for arson causing great bodily injury (§ 451, subd. (a)) because there was insufficient evidence that Torres was alive when he was burned. We reject each of Gustavo’s other arguments and affirm the remaining convictions.
FACTUAL AND PROCEDURAL SUMMARY
Defendants were charged with murder in the first degree (§ 187, subd. (a)), kidnapping (§ 207, subd. (a)), robbery (§ 211), and arson causing great bodily injury (§ 451, subd. (a)). The information alleged the murder was committed while defendants were engaged in a robbery and kidnapping, subjecting defendants to a sentence of life without the possibility of parole. (§ 190.2, subd. (a)(17)(A), (B).) Guillermo Villalba, Raymundo Sandoval, Sr., and Raymundo Sandoval, Jr., also were charged in the original complaint. By the time of trial, Villalba, Sandoval Sr. and Sandoval had all pled guilty to various offenses. The only defendants to proceed to trial were Gustavo and Luis. The following evidence was presented to the jury.
We will refer to Raymundo Sandoval, Jr., as Sandoval and Raymundo Sandoval, Sr., as Sandoval Sr.
Initial Investigation
In the afternoon of August 28, 2007, California Highway Patrol Officer Matthew Matsumura was dispatched to an unincorporated area of Fresno County to investigate a report of a burned vehicle. He located the vehicle in an agricultural area. Matsumura was unable to identify the make, model, or year of the vehicle, but was able to confirm through the license plate number that it was owned by Torres. The vehicle had not been reported stolen, nor had Torres been reported missing. Matsumura performed a cursory search of the vehicle, but did not locate anything of value. He was not able to open the trunk of the vehicle. The vehicle was towed from the scene and Matsumura departed without searching the remaining debris.
Later that afternoon, Fresno Police Department Community Service Officer Jonathan Pantages was dispatched to a residence in Fresno where Elia Flores reported Torres, her brother, missing. Flores gave Pantages the license plate number of Torres’s vehicle, and Pantages determined the vehicle had been towed to a local tow company’s storage yard. Another family member informed Pantages that he had last seen Torres around 9:30 p.m. the previous evening when Torres left in his vehicle after stating he would return shortly. Torres never returned.
Detectives responded to the tow yard and unsuccessfully attempted to open the trunk of Torres’s vehicle with a crowbar. Detectives successfully folded down what remained of the rear seat frame to inspect the contents of the trunk and discovered what appeared to be burnt human remains in the ashes in the trunk.
The charred body parts recovered from the vehicle included a portion of the head, neck, and upper chest area, as well as a portion of the pelvic region of the body, along with other smaller parts of the body. Bullets were recovered from the spinal canal of the first cervical vertebra and the muscles of the right shoulder. The first bullet was “almost incompatible with life. Meaning … a person cannot survive such an injury.” The wound would cause a very rapid death. The victim was alive when shot. The cause of death was multiple gunshot wounds. There was no evidence to indicate that the victim was alive when the fire was started.
A search of the area where the vehicle was recovered resulted in the discovery of five.32-caliber cartridge casings and a bullet. Examination of the cartridge casings established that all five were fired from the same weapon. The bullet that was recovered from the scene, as well as two bullets recovered from Torres’s remains, were all.32-caliber and all had the same class characteristics, indicating they were fired from the same weapon. A search of the vehicle did not recover any additional evidence.
The information initially developed did not provide the investigators any leads. The records for Torres’s cell phone, which were not received until the following month, provided the first lead. In the days prior to Torres’s murder, he placed or received 39 phone calls to a phone number associated with Sandoval. The last phone call between the two occurred at 10:17 p.m. on the night of the murder.
The first interview with Sandoval occurred almost one month after the murder. Sandoval was interviewed on four additional occasions during the course of the investigation. Through these interviews, investigators learned that Torres supplied drugs for Sandoval’s father, Sandoval Sr. Sandoval also provided information that led investigators to his wife, Rebecca Sandoval, defendants, and defendants’ cousin, Villalba.
We will refer to Rebecca Sandoval by her first name, not out of disrespect but to avoid any confusion to the reader.
A search of the residence where defendants lived resulted in the discovery of.32-caliber and.38-caliber ammunition, as well as 12-gauge shotgun shells. The.32-caliber ammunition was manufactured by the same company as the spent casings found at the murder scene.
The primary witnesses to the events surrounding the murder were Sandoval and Rebecca. We set out their testimony in detail.
Sandoval
Sandoval eventually admitted he was involved in the murder. During the first interview, however, he denied any involvement, and his description of the events leading to the murder of Torres evolved over the five interviews. The numerous tales Sandoval told investigating officers led defendants to argue he could not be believed.
At the time of the murder, Sandoval was married to Rebecca; they have two children together. Sandoval Sr. is Sandoval’s father. Sandoval, Rebecca, their two children, and Sandoval Sr. and his wife lived at a house on Beran Way in August 2007. Defendants lived across the street. They were merely acquaintances with whom he would occasionally spend time. Sandoval met Villalba, defendants’ cousin, through defendants. Villalba visited defendants frequently.
Each of Sandoval’s five interviews with investigators was recorded. He was charged with the murder of Torres, but he pled guilty to one count of kidnapping (§ 207), one count of armed robbery (§ 211), and one count of accessory to murder (§§ 32, 187); he was sentenced to a term of 11 years. In exchange for pleading to the lesser counts, Sandoval agreed to testify truthfully.
Sandoval had suffered convictions for grand theft of an auto (Veh. Code, § 10851, subd. (a)), evading an officer (id., § 2800.2), two counts of possessing a weapon after being convicted of a felony (Pen. Code, § 12021, subd. (a)(1)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He has been to prison three times, for a total of approximately 34 months.
Sandoval began using methamphetamine when he was approximately 13 or 14 years old. At that time Sandoval Sr. was using cocaine. Around age 19, Sandoval began using drugs with Sandoval Sr. The two used drugs together until they were arrested in this case. Sandoval never used drugs with Luis, but he did use rock cocaine with Gustavo on one occasion. It appeared to be the first time that Gustavo had used rock cocaine. Sandoval, however, had seen Gustavo and Luis smoking marijuana.
Sandoval Sr. had been selling drugs for approximately 10 years and had approximately 50 regular customers. He initially purchased his drugs from Jamie. Jaime was a main distributor of illegal drugs. When Jaime became involved in other things, his brother-in-law, Torres, began supplying Sandoval Sr. Torres worked for Jaime and had provided narcotics to Sandoval Sr. for at least six and one-half years.
Sandoval recalls that in late August 2007 he called Torres to purchase more drugs. At the time, Sandoval helped his father sell the drugs purchased from Jamie. When Sandoval Sr. needed more drugs, he asked Sandoval to call Torres to get more. Neither Gustavo nor Luis purchased any drugs from Sandoval Sr.
About a month before he was murdered, Torres started selling drugs directly to the customers of Sandoval Sr. Torres would sell the drugs at a lower price than Sandoval Sr., thus cutting into Sandoval Sr.’s sales by about $400 to $600 per day. Since Sandoval Sr. was supplying both Sandoval and himself with drugs on a daily basis, they were consuming any profit made from the sale of drugs. The decrease in sales made Sandoval Sr. angry. In late August 2007, Sandoval Sr. decided that Torres needed to be taught a lesson. He asked Sandoval if defendants would be interested in teaching Torres a lesson.
Prior to speaking with Gustavo, Sandoval called Torres and talked to him about coming over so Sandoval Sr. could buy more methamphetamine, with the idea that Torres would be assaulted when he came by. If Gustavo did not want to beat up Torres, nothing was going to happen that night.
Sandoval asked his sister to come to the house and pick up their mother so she would not be present. Rebecca called her aunt and had her pick up the children so they were not present. Sandoval approached Gustavo later that day and asked him if he would be interested in teaching Torres a lesson. Sandoval meant that he wanted Gustavo to beat up Torres. He did not think Torres would be killed. Sandoval never discussed killing Torres with Sandoval Sr. Sandoval told Gustavo he would probably receive something from Sandoval Sr. for beating Torres. Gustavo agreed.
Luis and Villalba were present when Sandoval spoke with Gustavo. After Gustavo agreed to Sandoval’s proposal, Gustavo, Luis and Villalba went inside defendants’ house and put on dark clothing. When Gustavo, Luis, and Villalba reemerged from the house, Sandoval and Rebecca were waiting in the front yard. Rebecca did not know that Sandoval had asked Gustavo to assault Torres.
Sandoval’s plan was to get a ride to Rebecca’s aunt’s house and then call Torres to come over to the house on Beran Way. Sandoval did not want to be in the neighborhood when Torres was assaulted. Sandoval asked Villalba, who was the only one who had a vehicle, to drive Rebecca and him to Rebecca’s aunt’s house. Sandoval, Rebecca, Villalba, Gustavo, and Luis all entered the car and headed to the aunt’s house.
Villalba’s vehicle died shortly after leaving Beran Way. Villalba could not get the vehicle started because the battery was dead. Sandoval called Torres, told him they were having car problems, and asked him to bring jumper cables to their location.
When Torres arrived, he did not have any jumper cables. Torres and Rebecca drove to Sandoval’s house to pick up jumper cables. Torres returned a short while later; Sandoval Sr. and Rebecca were in the car. Torres parked his vehicle so he could provide a jump to Villalba’s vehicle. Torres exited his vehicle and opened his hood.
Defendants and Villalba attacked Torres. Gustavo had a 12-gauge shotgun that he was using to hit Torres. Luis had a.32-caliber pistol in his hands. Sandoval was surprised that Torres was being beaten at that time, although he expected it to occur later when he was not present. Sandoval Sr. watched the beating. Rebecca was hysterical and telling Sandoval to help Torres.
Gustavo, Luis and Villalba put Torres in the trunk of Torres’s vehicle after they beat him. Villalba and Gustavo entered Torres’s vehicle; Sandoval, Sandoval Sr., Rebecca, and Luis entered Villalba’s vehicle. Gustavo drove Torres’s vehicle, and Sandoval followed in Villalba’s vehicle. Sandoval did not know where Gustavo was headed. Rebecca was shaking and crying but had stopped yelling.
Sandoval was surprised when Villalba drove to the cement slab where Torres’s vehicle eventually was found. Sandoval had been there before because it was a location where stolen cars were stripped and/or burned. Sandoval himself had abandoned stolen cars there in the past and also had burned cars there once or twice. He was surprised because he was familiar with the area and did not know that it was Villalba’s destination.
Villalba and Gustavo exited Torres’s vehicle. Sandoval and Sandoval Sr. exited Villalba’s vehicle but stayed near it. Rebecca stayed in Villalba’s vehicle and yelled at Sandoval to get back into the vehicle. Luis exited Villalba’s vehicle and walked to the back of Torres’s vehicle. Villalba and Gustavo opened the trunk of Torres’s vehicle. Gustavo was holding the shotgun and began yelling at Torres. Gustavo poked Torres with the shotgun. Luis was holding the pistol. Gustavo and Luis were looking into the trunk while Villalba was standing behind them. Someone else was also yelling at Torres, but Sandoval could not identify whose voice it was. Gustavo was telling Torres he wanted his money and his drugs. Torres was barely audible, but Sandoval heard him say, “Why me?” Sandoval yelled at Gustavo to leave Torres alone. Gustavo told Sandoval to be quiet. Finally, Sandoval Sr. said it was time to leave. Luis pointed the pistol into the trunk and shot four or five times at Torres’s upper body. The trunk was closed and Gustavo, Luis, and Villalba walked to the passenger door of Torres’s vehicle.
Rebecca became hysterical when she heard the shots, so Sandoval returned to Villalba’s vehicle. Gustavo, Luis, and Villalba closed the doors to Torres’s vehicle and ran to Villalba’s vehicle. Villalba was holding the container in which Torres stored the drugs he sold. Villalba drove away after everyone was in the vehicle. Sandoval could see the flames from Torres’s burning vehicle as they drove away. Villalba drove to Rebecca’s aunt’s house, where Sandoval and Rebecca exited the vehicle and Villalba drove away.
Sandoval did not return to his father’s house until the next night. Sandoval Sr. had a significant quantity of methamphetamine, which he did not have before the murder. Sandoval Sr. also had money, but Sandoval did not know where his father had gotten the money. The following night Sandoval saw his father cleaning the pistol used in the murder. The pistol was distinctive because the grips were missing from the handle. Sandoval did not directly receive any of the drugs stolen from Torres, but his father did give him some methamphetamine, which was probably stolen from Torres.
When Sandoval initially was interviewed, he told the investigators little of what happened that night because he was afraid he would get into trouble and afraid for the safety of his family.
The cross-examination of Sandoval focused on the numerous lies he told investigating officers in the five interviews. In addition, defendants’ attorneys concentrated on other facts, apparently attempting to establish Sandoval’s bad character, including that Sandoval agreed to a plea bargain, thus avoiding a potential life term in prison for initiating the events leading to Torres’s death, his drug addiction history, his criminal history, inconsistencies in his testimony, his participation in Sandoval Sr.’s drug sales business, and his receipt of some of the drugs apparently stolen from Torres.
Rebecca Sandoval
Rebecca was the only other eyewitness to Torres’s murder who testified at trial. Rebecca was granted use immunity. During the initial interview of Rebecca, she appeared scared, worried, and very emotional. It appeared to the investigators that Rebecca did not want to be involved in the investigation and did not want to give them any information.
Rebecca was married to Sandoval; they have two children. Rebecca, Sandoval, their children, and Sandoval Sr. and his wife lived together when the murder occurred. Rebecca identified defendants as neighbors who lived on the same street and identified Villalba as defendants’ cousin.
Rebecca was aware that Sandoval Sr. sold drugs out of the trailer in the back of the house, but she did not believe that Sandoval was involved.
On the night of the murder, her children were with her aunt. Rebecca and Sandoval asked Villalba for a ride to pick up their kids from the aunt’s house. Rebecca thought they were going to get the kids and come back to the house on Beran Way. Rebecca, Sandoval, Villalba, and defendants left in Villalba’s vehicle. The car pulled over after about four minutes. The men exited the vehicle and looked at the engine. Sandoval called Torres and asked him for assistance in starting Villalba’s vehicle.
Torres arrived a short while later. He was alone in his vehicle. He did not have any jumper cables, so Sandoval asked Rebecca to go back to the house with Torres and pick up some jumper cables. When Rebecca and Torres arrived at the house, Sandoval Sr. was in the front yard. Rebecca asked him for jumper cables. Sandoval Sr. got the jumper cables, put them in the trunk, and got into Torres’s vehicle.
When they arrived at the location of Villalba’s vehicle, Sandoval was still working on the engine. Torres exited the vehicle and Sandoval attached the jumper cables to the vehicles. Defendants and Villalba rushed Torres and knocked him down. Rebecca was scared and confused, so she got back into Villalba’s vehicle. She saw defendants and Villalba kicking Torres. Sandoval did not attack Torres, nor did he try to assist him. Sandoval Sr. stayed in Torres’s vehicle.
Sandoval got back into Villalba’s vehicle and started it. Luis and Villalba put Torres in the back seat of Torres’s vehicle and then they entered Torres’s vehicle, along with Sandoval Sr., who had not exited the vehicle, and Gustavo. Gustavo drove away in Torres’s vehicle; Sandoval followed in Villalba’s vehicle. Rebecca asked Sandoval what was happening, and he told her to be quiet. Rebecca did not push the matter because she knew that if she did it would cause bigger problems between the two of them. Sandoval had a history of slapping, pushing and punching her during their relationship.
When they arrived at the murder scene, Sandoval Sr. got out of Torres’s vehicle and into Villalba’s vehicle. Rebecca saw defendants and Villalba put Torres in the trunk of his vehicle. Villalba then returned to his vehicle and got in. Rebecca heard gunshots and saw Torres’s vehicle begin to burn. Luis was shooting into the trunk towards Torres’s head and Gustavo was off to the side getting ready to close the trunk. Defendants returned to Villalba’s vehicle. Rebecca did not say anything during her remaining time in Villalba’s vehicle.
Rebecca did not know a violent act was going to occur that night, nor did she know that Sandoval had arranged for Torres to be beaten. Consequently, she was scared when the events took place. She was aware, however, that Sandoval Sr. was angry with Torres because Torres was selling drugs directly to Sandoval Sr.’s customers.
The first time Rebecca was interviewed by investigating officers, she lied because she was afraid. Rebecca was interviewed after Sandoval, and he told her what he had told the investigating officers. Rebecca attempted to tell investigators the same story. She was unsure what she told the investigating officers because the story was lies. Rebecca went along with Sandoval’s story because she was afraid that Sandoval would hit her if she did not follow his instructions. Sandoval was arrested before Rebecca’s second interview with investigating officers. Since she did not have any reason to fear him, she felt free to tell investigating officers the truth.
Cross-examination focused on the lies Rebecca had told to the investigating officers before telling them the version to which she testified and on the attempts to point out minor inconsistencies between her final statement to investigating officers and her trial testimony.
Gerardo Gomez
The final key prosecution witness was Gerardo Gomez, an inmate in Fresno County jail.
Gomez testified that he had been incarcerated for 15 months for an assault. He became acquainted with Gustavo and Luis while in the jail. They talked frequently. Prior to September 2008, he had gotten along well with Gustavo and Luis.
Gustavo told Gomez that he, his brother, and his cousin were in jail for murder. Gustavo stated the victim was robbed, shot, thrown into a trunk, and burned. Gustavo stated that Luis shot the victim. Gomez stated, “All he was saying is that he burned him. He burned him, ” and “that they shot the guy. And then put him in the trunk. And then they burned him.” Gustavo also stated that investigating officers found bullets at his house. He told Gomez the bullets were for the gun that was used to murder Torres, and he was dumb for leaving them in his room. The gun was disposed of after the shooting.
Gomez’s relationship with Gustavo changed in November 2008 when Gomez was stabbed approximately 18 times by five other inmates. Gustavo and Luis were part of the group that assaulted Gomez. Gomez testified because he knew some information about the case, and this was his chance to get even with Gustavo for the assault. He did not expect to get any favorable treatment as a result of his testimony. Gomez entered a plea in his case before he was attacked by Gustavo and Luis and before he spoke with investigating officers about Gustavo’s statements.
Cross-examination focused on Gomez benefiting from his testimony because he could serve his sentence in county jail, instead of prison, where he would be safer. In addition, defendants focused on Gomez’s criminal history. Gomez also explained that the doors to the cells were open most of the day and night, although an inmate was not supposed to go into another inmate’s cell. Gomez had entered other inmates’ cells to obtain some privacy while visiting when he thought he would not be caught.
Defense Case
Defendants called two witnesses to support their defense. Prince Edwards Capozzi testified he was not present when Torres was murdered, but late that night he had seen Sandoval with the can in which Torres kept the drugs he sold. Sandoval also had the gun used to kill Torres in his possession a few days after the murder, although Sandoval said the gun belonged to Gustavo. Sandoval told Capozzi that he had gotten rid of the gun. Sandoval also said that Gustavo asked for the gun back after he had disposed of it.
Sandoval bragged about how “they” had beaten Torres, and that his father wanted Torres beaten. Sandoval was washing a vehicle that belonged to a different neighbor and told Capozzi it was the car used to lure Torres on the night he was killed.
On cross-examination, Capozzi confirmed that Sandoval never told him he had shot Torres. Sandoval also told Capozzi that Gustavo, Luis, and Villalba participated in the crime. Rebecca also was present, but she was scared and quiet when Sandoval talked about the killing.
Myrl Stebens testified as an expert witness that spent shell casings should be tested for fingerprints.
Arguments
The prosecutor acknowledged Sandoval’s despicable character and his repeated lies, but argued that Sandoval told the truth at trial and used Rebecca’s testimony to confirm his story. The prosecutor also acknowledged Rebecca’s lies to the police, but argued that her fear of Sandoval explained those lies and her decision to tell the truth was courageous considering her life circumstances.
The defense argued that Sandoval and Rebecca were liars and that the jury could not believe either. In addition, defense counsel argued that Rebecca was an accomplice, as was Sandoval, and there was no corroboration of their testimony, thus an acquittal was required.
The Verdict
The jury found defendants guilty as charged after deliberating less than one full day. The enhancements also were found true. Defendants were sentenced to life without the possibility of parole, along with determinate sentences of nine years each. In addition, Luis was sentenced to a consecutive indeterminate term of 25 years to life because he personally used a firearm to murder Torres. (§ 12022.53, subd. (d).)
DISCUSSION
I. Arson Resulting in Great Bodily Injury
Gustavo was convicted of violation of section 451, subdivision (a), arson that caused great bodily injury. The parties agree that there was not substantial evidence that Torres was alive when the vehicle was burned. Indeed, the testimony was unequivocal that one of the shots would have resulted in almost instantaneous death.
To obtain the arson conviction, the prosecutor argued, over defense objections, that great bodily injury could be inflicted on a corpse. Gustavo contends that the trial court erred in permitting the jury to convict him of this crime since one cannot inflict great bodily injury on a corpse. The People agree the trial court erred, as do we, requiring reversal of this conviction.
Neither party has cited, nor has our research located, any case that specifically holds that great bodily injury may be inflicted only on a living person. Nor has any case been cited or located where great bodily injury was inflicted on a corpse. Perhaps this is because “‘The term “great bodily injury” has been used in the law of California for over a century without further definition and the courts have consistently held that it is not a technical term that requires further elaboration.’ [Citation.]” (People v. Maciel (2003) 113 Cal.App.4th 679, 686.)
The closest case to address the issue noted that personal injury included emotional injury because “‘In law the word “person” does not simply mean the physical body, for, if it did, it would apply equally to a corpse. It means a living person, composed of body and soul. Therefore any mental injury is necessarily an injury to the person. Personal injuries may be either bodily or mental, but, whether one or the other, they infringe upon the rights of the person, and not of property.’” (Huntly v. Zurich General A. & L. Inc. Co. (1929) 100 Cal.App. 201, 210.) Huntly implies that a corpse is property, not a person. This statement is consistent with the line of cases that recognize the right to recover damages for the negligent or intentional mishandling of a corpse, which permit injuries suffered by survivors. (See, e.g., Christensen v. Superior Court (1991) 54 Cal.3d 868.)
Consistent with these cases is the definition found in Black’s Law Dictionary (6th ed. 1990) page 175, which defines “bodily injury” as “injury to the body.” In turn, “body” is defined as “a person or a natural body” (ibid.) and “person” is defined as a “human being” (id. at p. 1142). Thus, bodily injury refers to an injury to a human being, not a corpse. Finally, “great bodily injury” is defined in section 12022.7, subdivision (f) as “significant or substantial physical injury, ” with Black’s defining “physical injury” as “Bodily harm or hurt, excluding mental distress, fright, or emotional disturbance.” (Black’s, supra, at p. 1147.)
Perhaps most persuasive, however, is that for the last 100 years the courts have agreed that great bodily injury is not a technical term that refers to injury to a person, not injury to a corpse.
Analogous is the well-settled rule that one cannot rape a corpse. The victim of rape must be a living human being because the crime must be accomplished against a person’s will. (People v. Kelly (1992) 1 Cal.4th 495, 524.) “‘A dead body cannot consent to or protest a rape, nor can it be in fear of immediate and unlawful bodily injury.” (Ibid.) Similarly, great bodily injury must be inflicted against a person’s will, or no crime would occur. If this were not the law, every boxing match or other consensual confrontation would result in the filing of criminal charges. For all of these reasons, Luis’s conviction for arson causing great bodily injury cannot stand.
The parties agree the conviction must be reversed, but disagree as to the appropriate resolution. The jury clearly believed that Gustavo committed arson when he burned Torres’s vehicle. The People rely on section 1260 to argue that we should reduce the degree of the offense imposed to simple arson. Gustavo argues that would be improper because arson is not divisible into degrees. Both parties rely on People v. Muszynski (2002) 100 Cal.App.4th 672 (Muszynski) to support their argument.
Section 1260 states in full: “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”
Muszynski was convicted of violating section 451.5, subd. (a), aggravated arson, when he caused a natural gas explosion in his apartment that damaged a total of six units. The statute required the People to prove the defendant caused a fire that damaged “five or more inhabited structures.” (§ 451.5, subd. (a)(3).) The People theorized that each apartment was an inhabited structure within the meaning of the statute. The appellate court disagreed, holding that the apartments were a single building or structure, not six separate structures. (Muszynski, supra, 100 Cal.App.4th at p. 683.) Instead of reversing the conviction, however, the appellate court relied on section 1260 to reduce the conviction to a lesser degree, arson causing great bodily injury. (Muszynski, at p. 684.)
Here, Gustavo was convicted of arson causing great bodily injury. The jury necessarily found that he not only committed arson of personal property, Torres’s vehicle, but that he caused great bodily injury in doing so. Arson of personal property is necessarily included in the crime of which Gustavo was convicted. Therefore, pursuant to section 1260, we will reduce the conviction to arson of personal property and remand for resentencing.
II. Abuse Suffered by Sandoval
In addition to arguing the conviction for arson causing great bodily injury must be reversed, Gustavo joined each of Luis’s arguments. Accordingly, in the following sections we address each of the arguments made by Luis, and our analysis of those arguments, with the exception of Luis’s argument that the prosecutor committed Aranda/Bruton error. Luis argued the testimony obtained from Gomez erroneously was admitted because Gomez testified to comments made by Gustavo that implicated Luis. Gustavo cannot rely on the Aranda/Bruton line of cases because Gomez testified to statements allegedly made by Gustavo, not comments made by another codefendant. Therefore, we need not address this argument in this appeal.
Sandoval testified that he arranged for Torres to be beaten because his father, Sandoval Sr., asked him to do so. On redirect examination, the prosecutor elicited from Sandoval that he was abused by Sandoval Sr. when he was a child. The apparent purpose of this testimony was to explain why Sandoval would act to cause harm to Torres, someone he described as a friend. Gustavo’s objection to the testimony was overruled by the trial court. Gustavo argues the trial court erred.
The testimony on the issue lasted for approximately five pages, including objections. Sandoval explained that if he did not do what his father asked him to do, Sandoval Sr. would call him names and put him down in other ways. When Sandoval was younger, his father would beat him whenever Sandoval Sr. was “high [or] drunk.” These beatings occurred approximately four times per week and involved extension cords, brooms, fists, and feet. Sandoval could not remember when the beatings started, but they stopped when Sandoval stood up to his father, around the time Sandoval was 16 or 17. After the “ass whooping, ” Sandoval Sr. would use drugs with Sandoval to “make up” for the assault.
The issue can be simply stated: Did the trial court err in admitting testimony about the abuse Sandoval claimed he suffered as a child? Gustavo argues the testimony caused the jury to feel sympathy for Sandoval’s plight, and thus enhanced his credibility. In other words, the probative value of the evidence was substantially outweighed by its prejudicial effect. (Evid. Code, § 352.)
We review a trial court’s evidentiary decisions, including those decisions based on Evidence Code section 352, for an abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805 (Jablonski).) A trial court does not abuse its discretion unless it acts in an arbitrary, capricious, or patently absurd manner that results in a miscarriage of justice. (People v. Williams (2008) 43 Cal.4th 584, 634 (Williams).)
Evidence Code section 352 requires the trial court to weigh the proffered evidence to determine if the probative value of the evidence is substantially outweighed by its prejudicial effect. “‘Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome” [citation].’ [Citation.]” (Jablonski, supra, 37 Cal.4th at p. 805.)
Sandoval’s testimony did have some limited probative value. His relationship with his father helped explain why he would agree to arrange a meeting at which Torres was going to be beaten. This evidence helped explain Sandoval’s actions. (Evid. Code, § 210.)
Admittedly, Sandoval’s testimony did not have significant probative value, but neither was the testimony prejudicial. The testimony was very brief and was not mentioned by the prosecutor in closing argument. Luis’s counsel was the only one to mention the testimony during argument. Considering Sandoval’s admitted history of criminal activity and drug abuse, it is unlikely any jury would be swayed to believe him simply because he was abused as a child. Instead, the jury believed his testimony because it was consistent with the objective facts of the case and with Rebecca’s testimony. In this case, the trial court did not act in an arbitrary or capricious manner when it concluded that the probative value of the evidence was not substantially outweighed by its prejudicial effect.
Even if we were to assume the trial court erred, we would not reverse unless the claimed error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs only when, after an examination of all of the evidence, we conclude that it is reasonably probable that the defendant would have obtained a more favorable result if the error had not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Gustavo cannot meet this standard.
Sandoval’s’ testimony on this issue was very brief and was relevant on the issue of Sandoval’s motivation for arranging the confrontation that led to Torres’s death. The prosecutor did not refer to the testimony at any other part of the trial. Indeed, the prosecutor made it plain in closing argument that Sandoval was not entitled to sympathy for any reason. She described him with the following terms: “inmate, ” “criminal, ” “thug, ” “dope user, ” one who minimized his role in the murder, “selfish addict, ” “bad husband, ” “bad friend, ” “horrible, ” “self-serving jerk, ” and “bully.”
The prosecutor also addressed Sandoval’s character in her rebuttal argument when she responded to Luis’s attorney’s argument that the jury should not feel sorry for Sandoval. “Did I not stand up here yesterday morning and tell you what a piece of crap I thought [Sandoval] was? I had a laundry list of things that he was, a liar, a thief, a thug, someone who burned cars.” She pointed out that both Sandoval and Gomez were in custody and dressed in jail clothing and shackled when they testified. The prosecutor then turned to the beatings Sandoval Sr. inflicted on Sandoval.
“The issue of [Sandoval] being beaten by his dad, that wasn’t to make him sympathetic, because there are a lot of people who are beaten by their fathers that don’t turn out to be drug using thugs like [Sandoval], liars. They don’t do that. There’s not an excuse for that. But there’s also not very many people that come along that will, upon the request of their father, solicit people to beat down a drug dealer. So the reason that that information from the People’s perspective was brought forth, to show you that there probably was a little mind control going on between [Sandoval and Sandoval Sr.] Not to make you feel sorry for him. Just another -- another example of sort of the pathetic life that he [led]. Not to make you feel sorry for him. It might even make you dislike him even more. It is not about whether you like [Sandoval], because you know what, I don’t think I would like him if I knew him in my personal life. It is not about liking him.”
Defense counsel also attacked Sandoval’s character with every weapon in their arsenal. The entire defense was based on the theory that the evidence was insufficient to prove defendants guilty beyond a reasonable doubt because the prosecution’s witnesses were admitted liars who could not be believed.
Under these circumstances, it is impossible to conclude the jury found Sandoval believable simply because he was abused as a child. No one suggested to the jury that it should so conclude. Each attorney argued that Sandoval was not entitled to any sympathy. Therefore, if the evidence that Sandoval had been abused as a child had been excluded, it is not reasonably probable that Gustavo would have obtained a better result. On this record reversal would not be required under any standard of review.
III. Lay Opinion Testimony
Gustavo argues the trial court erred in admitting opinion testimony expressed by Sandoval and the chief investigating officer, Sergio Toscano.
Generally, a witness may testify only to matters about which he or she has personal knowledge. (Evid. Code, § 702, subd. (a).) An exception to this rule exists for opinion testimony. (Id., § 800 et seq.) If a witness is not testifying as an expert, his or her opinion is admissible only if it is rationally based on the perceptions of the witness and is helpful to a clear understanding of his or her testimony. (Id., subds. (a), (b).)
A. Sandoval’s Opinion That Rebecca Was Surprised When Torres Was Attacked
After describing the attack on Torres, Sandoval was asked what Rebecca was doing during the attack. Sandoval first stated that Rebecca was “stressing” and then described her as “hysterical.” Rebecca was yelling at Sandoval to help Torres and yelling at everyone else to calm down. The prosecutor then asked Sandoval if Rebecca was surprised by the attack on Torres. Sandoval replied that the attack “caught [Rebecca] off guard.” Sandoval stated that this opinion was based on the knowledge he had gained about Rebecca during their multiyear relationship.
Gustavo argues that Sandoval’s opinion that the attack surprised Rebecca should have been excluded because it did not rest on subtle or complex interactions that were difficult to put into words. This argument is based on Gustavo’s interpretation of People v. Hinton (2006) 37 Cal.4th 839 (Hinton).
Hinton was convicted of the murder of three men. The incident began when the victims attempted to purchase five kilos of cocaine from Hinton. Hinton, or one of his accomplices, prepared four packages that appeared to be cocaine, but were not. When the victims began testing the packages, they were shot and killed. Hinton denied shooting anyone, claimed he did not know anyone was going to be shot, and that one of the accomplices murdered the victims.
A witness testified that one of the victims, Barnes, was initially approached by the prospective buyers. Barnes, however, could not provide any details about the proposed cocaine purchase to the buyers. Instead, Barnes suggested he drive around the neighborhood with the witness to find the dealer. When Barnes saw Hinton, he identified him as the dealer and exited the vehicle to speak with Hinton. After speaking with Hinton, Barnes called the buyers and relayed the proposed details of the transaction. Barnes informed the buyers that the dealer would deliver the cocaine personally. Hinton arrived with an accomplice at the site of the proposed transaction with the packages. Based on this information, the prosecutor asked the witness if it appeared that Hinton was directing the transaction, to which the witness stated it did. (Hinton, supra, 37 Cal.4th at p. 889.)
On appeal Hinton argued that the witness’s opinion was an improper lay opinion. The Supreme Court rejected the argument.
“A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness’s testimony [citation], ‘i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed.’ [Citation.] It is certainly possible that [the witness’s] impression rested on subtle or complex interactions between Barnes and defendant that were difficult to put into words, which would render [the witness’s] opinion proper. [Citations.] But, even if it did not, defendant could not have been prejudiced, inasmuch as [the witness] was able to provide concrete and compelling evidence that defendant was directing Barnes in this transaction. Indeed, further evidence on this point was provided by [another witness], who testified that defendant joined [the victim] to verify the money had arrived, and by the fact that Barnes was shot in the motel room. There is no reasonable probability of a different result even if [the witness’s] opinion had been omitted.” (Hinton, supra, 37 Cal.4th at p. 889.)
Here, Gustavo focuses only on the portion of the opinion where the Supreme Court stated that a lay opinion is proper “‘where the concrete observations on which the opinion is based cannot otherwise be conveyed.’ [Citation.]” (Hinton, supra, 37 Cal.4th at p. 889.) We think the remainder of the quoted passage is on point. Sandoval’s testimony that the attack on Torres caught Rebecca off guard undoubtedly was the product of not only his observations (Rebecca was yelling, stressed, and hysterical) but also of his subjective knowledge that he did not tell Rebecca of the pending attack and his knowledge of how Rebecca would react to unexpected situations since the two had been in a multiyear relationship. In other words, Sandoval’s opinion was based not only on his observations but on the subtle and complex interactions between Rebecca and himself. The trial court properly admitted the lay opinion.
B. Sandoval’s Opinion About Gustavo’s Motivation
After Sandoval testified that he asked Gustavo to beat Torres, the prosecutor asked if Sandoval had offered anything to Gustavo for his services. Sandoval stated that he told Gustavo that Sandoval Sr. would probably give Gustavo something, meaning money or drugs. The prosecutor then asked Sandoval why he approached Gustavo to beat Torres.
“Q. Why did you pick him? Did you just think he was a tough guy or what?
“A. Somewhat. A person -- he reminded me something of myself when I was younger. Just didn’t care.”
Gustavo argues that he did not have a sufficient relationship with Sandoval to permit Sandoval to form an opinion about Gustavo’s attitude or “nihilism.” Gustavo misreads the record. Sandoval was explaining why he approached Gustavo about beating Torres. Sandoval approached Gustavo because Sandoval felt it was a task that Gustavo would be willing to do because he did not care, apparently about potential consequences. Sandoval was not giving a psychiatric diagnosis or attributing to Gustavo any particular mindset, but merely explaining his thought process based on his observations. And since Sandoval’s impression relied on subtle and complex conclusions based on his observations, it was a proper subject on which Sandoval could express a lay opinion. (Hinton, supra, 37 Cal.4th at p. 889.) The trial court did not err in permitting the testimony.
To the extent that Gustavo is suggesting that Sandoval’s testimony was irrelevant, we disagree. Sandoval approached Gustavo and asked him to beat someone with whom Gustavo had no apparent relationship. Sandoval’s thought process was relevant to explain why he approached Gustavo, and not someone else, and was relevant to the issue of the identity of the perpetrator, especially since the defense claimed that Sandoval was the murderer.
C. Toscano’s Opinions About Rebecca
Toscano was the lead investigator for the Fresno County Sheriff’s Department. He testified that he interviewed Sandoval on five occasions and Rebecca on two occasions.
The prosecutor asked Toscano why an investigator would interview a witness five times. Toscano explained that often, and especially in a murder investigation, witnesses do not tell the truth initially. This problem is magnified if the witness is involved in the crime. The investigator tries to pry information out of the reluctant witness using various tools. Also, additional information is obtained on each successive interview. “When you really start seeing the picture, they’re scared, they’re nervous, they’re afraid of getting in trouble, they don’t know what kind of trouble they’re going to get into, and it is a process. These guys just don’t come out and tell you the truth from the very beginning. Sometimes it takes twice, sometimes it takes four or five times to finally get some truth out of this person as to what happened, and why it happened, who all was involved. They don’t want to just come out and tell you.” Toscano confirmed that it is common to interview witnesses and suspects on numerous occasions. Toscano also confirmed that Sandoval’s story evolved over the course of the five interviews.
The prosecutor then questioned Toscano about the interview process with Rebecca. Toscano confirmed that Rebecca’s story also evolved during the two interviews. “As usual, the first time, minimal. She will give you some information, and it was obvious to us as the investigators that she’s -- she has some knowledge about what happened to [Torres].” He described Rebecca as scared, emotional, crying, and worried in this interview.
Toscano also described a third contact with Rebecca. Toscano and his partner went to Sandoval’s house hoping to speak with Sandoval. Sandoval was not home, but they spoke with Rebecca in the front yard of the home. Toscano did not know defendants, so he asked Rebecca if she could identify them for him. Rebecca seemed scared and nervous. All she would say is that defendants were right across the street in the front yard. It appeared that Rebecca did not want defendants to see that she was pointing them out to Toscano.
On cross-examination, defense counsel confirmed that Toscano did not believe that either Sandoval or Rebecca was truthful in their first interviews (which were conducted on the same day). During the first interview, Rebecca told Toscano that she knew about the murder only because other people had told her about it. Toscano testified that he did not believe Rebecca was telling him everything she knew about the murder.
Defense counsel also confirmed that one of the reasons that Sandoval was interviewed five times was because each time he told Toscano a story, Toscano was able to determine through independent evidence that the story was not completely true. Toscano explained that this was another example of how witnesses or suspects in an investigation were not always truthful.
Defense counsel next returned to Rebecca’s emotional state during the first interview. Toscano admitted that people involved in homicides generally experience the same reactions as exhibited by Rebecca. He also admitted that since Rebecca had access to the phone used by Sandoval, it was possible that she had spoken with Torres in the two days before his death.
Defense counsel then asked if the reason Rebecca was so emotional during her interview was because she had spoken to Torres before his death. Toscano responded, “The -- I think, from what I remember, why she was so emotional was because she was mixed up in something that she did not want to be involved -- a witness to anything. She did not want to know. So I had no reason to believe that she was directly a participant in this incident, in this homicide. It’s not -- it’s not common for women to be involved in something like that. And I didn’t even think that she would be.” Defense counsel then chided Toscano, “Oh, come on, Detective, are you saying that women aren’t murderers.” Toscano replied, “I’m saying in this particular case I had no -- I didn’t think that she -- I think she got mixed up in something that was out of her control.” There was no objection to the questions or responses.
Gustavo first argues that Toscano’s comment that it was obvious to him that Rebecca had some knowledge about the murder was an improper opinion testimony. We disagree. Toscano’s comment is better described as his mindset -- he believed Rebecca was withholding information about the murder. It was not an opinion about Rebecca’s involvement in the murder. Moreover, contrary to Gustavo’s assertions, Toscano’s comment was not offered as an explanation for Rebecca’s emotional state during the interview.
Additionally, Rebecca herself testified that she was not truthful in the first interview. Therefore, it was clear to all that Toscano’s perception about Rebecca was accurate. Whether or not her emotional state in the first interview was attributable to her lies, her witnessing the murder, or both, was insignificant. It was undisputed that during the first interview Rebecca was emotional and she lied.
Gustavo next complains that Toscano’s testimony that he did not think Rebecca was an active participant in the murder undermined the defense theory that Rebecca was an accomplice. According to Gustavo, Toscano’s comment was an improper lay opinion on the ultimate issue presented to the jury.
First, Gustavo has forfeited the claim because there was no objection in the trial court. (Williams, supra, 43 Cal.4th at p. 620.) Second, once again, Toscano’s comment was in direct response to defense counsel’s snide remark, thus the comment was invited. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.) Third, Toscano’s opinion about Rebecca’s involvement in the murder was completely consistent with all the evidence in the case. As explained above, there was no evidence that linked Rebecca to the murder other than her presence at the scene.
For all of these reasons, we reject Gustavo’s arguments that this testimony should have been excluded. Indeed, it is hard to fathom how the trial court could have excluded the evidence in the absence of a motion to strike the testimony.
D. Prejudice
We have rejected on the merits Gustavo’s claim that the “opinions” of Sandoval and Toscano were inadmissible. Even if we were to assume, arguendo, that the trial court erred in permitting this testimony, reversal would not be required because Gustavo cannot establish a miscarriage of justice, i.e., it is not reasonably probable that Gustavo would have obtained a better result if the opinions had been excluded. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d at p. 836.)
Each of Sandoval’s observations indicated that Rebecca was surprised when Torres was attacked. Sandoval’s observations were confirmed by Rebecca’s and his testimony that she did not know Torres was going to be attacked. Thus, the jury was presented with overwhelming evidence that Rebecca was unaware of the plan to attack Torres. Sandoval’s opinion added little to this evidence.
We recognize that both defendants hoped to convince the jury that Rebecca was an accomplice because she knew of, and participated in, the plan to assault Torres. There was no evidence, however, that Rebecca had such knowledge. Counsel for both defendants suggested that Rebecca participated in the plan to attack Torres, but their argument was based on speculation (e.g., as Sandoval’s wife she must have known what was going to happen) and nothing more. The lack of evidence to support their argument compelled the jury to reject it.
Sandoval’s testimony about his observation of Gustavo’s attitude was brief, was not a focus of the prosecutor during closing argument, and did not label Gustavo as a nihilist. Although relevant, it added little to the testimony at trial and did not influence the outcome of the trial.
Finally, Toscano’s testimony explained the investigation and the evolving stories of Sandoval and Rebecca. His belief that Rebecca was not involved in the murder explained his mindset. The comment was brief and was not a focus of the prosecutor’s closing argument. Moreover, there was no evidence that Rebecca was involved in the murder, so Toscano’s statement was confirmed by the evidence.
Whether we consider the testimony individually, or in total, we conclude admission of the testimony did not result in a miscarriage of justice.
IV. Photographic Evidence
Defendants moved to exclude any photographs of the remains of Torres. The prosecutor offered several photographs that she intended to introduce into evidence. The essence of the defense argument was that the probative value of the photographs was substantially outweighed by their prejudicial effect because they were so gruesome they would inflame the jury. (Evid. Code, § 352.) The trial court ruled that only three of the proposed photographs would be admitted. These photographs were entered into evidence as exhibit Nos. 18, 19, and 20.
We apply a two-step analysis when determining whether the trial court erroneously admitted photographic evidence. (People v. Scheid (1997) 16 Cal.4th 1, 13 (Scheid).) The first step is to determine if the photographs were relevant. (Evid. Code, §§ 210, 350.) The photographs clearly were relevant in this case. Defendants were accused of murdering Torres. Sandoval and Rebecca testified that Torres was put into the trunk of his vehicle, shot, and then the vehicle was burned. The prosecution introduced evidence showing the burned vehicle, as well as the partial remains of Torres’s body that were in the trunk. The photographs were relevant because they corroborated Sandoval’s and Rebecca’s testimony. In addition, Gopal, the medical examiner, testified to his findings and the difficulty he had in reaching his conclusions because Torres’s body was so badly burned. The prosecution introduced a photograph of Torres’s remains as they lay on an examination table, thus corroborating Gopal’s testimony.
In addition, Gustavo criticized the investigating officers for the amount of time it took to discover Torres’s remains in the trunk of the vehicle. The photographs were relevant to corroborate the officers’ testimonies about the difficulty in discovering the remains. While the prosecution presented other evidence to establish these facts, “it is immaterial for purposes of determining the relevance of evidence that other evidence may establish the same point.” (Scheid, supra, 16 Cal.4th at p. 16.) Therefore, each photograph was relevant.
The second step in the analysis is determining whether the trial court abused its discretion in admitting the photographs because the probative value of the photographs was substantially outweighed by their prejudicial effect. (Scheid, supra, 16 Cal.4th at p. 13.) “The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.)
We recognize that victim photographs in a murder case are always disturbing. (People v. Hendricks (1987) 43 Cal.3d 584, 594.) We, however, must focus on whether the photographs uniquely tend to evoke an emotional bias against a party as an individual, while having only slight probative value. (Scheid, supra, 16 Cal.4th at p. 19.) We have independently reviewed the three photographs about which Gustavo complains and conclude they were not unduly inflammatory. (Ibid.)
The three photographs at issue were preceded by several photographs of Torres’s burnt vehicle. The first photograph was a closeup view of Torres’s remains in the vehicle’s trunk. (Trial exh. No. 18.) What appears to be a skull is visible in this photograph, as well as what may be a portion of the spinal column. There is no blood or other sign of trauma other than the severe damage caused when the vehicle was burned.
The second photograph was a view of the remains while at the coroner’s office. (Trial exh. No. 19.) The remains are separated on what appears to be a gurney. While easily identifiable as something that had been burned, they would not be identifiable from this photograph as human remains but for the testimony of Gopal. There are no obvious signs of blood or injuries other than the damage caused by the fire.
The third photograph was of one portion of the remains. (Trial exh. No. 20.) This photograph appears to be of a portion of Torres’s skull and a portion of his upper body. This by far is the most graphic photograph, but is not unduly gruesome.
Defendants were charged with murder and with committing arson that caused great bodily injury. These photographs merely corroborated the testimony of Sandoval and Rebecca. It was a gruesome crime, and any photographs of the victim could not avoid some level of gruesomeness. The trial court, however, did not abuse its discretion in determining the probative value of the photographs outweighed their prejudicial effect.
Even if we were to assume, arguendo, that the photographs should have been excluded, reversal would not be required unless it is reasonably probable that the jury would have reached a different result if the photographs had been excluded. (Scheid, supra, 16 Cal.4th at p. 21.) That burden has not been met here. The prosecution’s case was strong, and Gustavo did not present any viable defense or alibi to the testimony of Sandoval and Rebecca, other than attacking their credibility. The photographs merely confirmed the testimony of the witnesses; they were not more inflammatory than the testimony about Luis’s act of shooting a defenseless Torres and defendants then igniting his vehicle. The photographs did not elicit the type of emotional response that would influence the jury.
V. Prosecutorial Misconduct
Gustavo next complains that the prosecutor committed misconduct in six different instances. The standards regarding prosecutorial misconduct are well established. “‘“A prosecutor’s … intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
We begin by noting that any claim of prosecutorial misconduct has been forfeited because Gustavo did not object on that basis and did not request the jury be admonished to disregard any impropriety. (People v. Stanley (2006) 39 Cal.4th 913, 951-952.) As we shall explain, however, the argument also fails on the merits.
A. Impugning Defense Counsel
During their cross-examination of Sandoval, defense counsel asked numerous questions of Sandoval about the lies he told the investigators in his five interviews. The questions typically would be something like “Didn’t you tell the officers in the second interview.…” Sandoval generally would agree that he had made the untruthful statement to officers.
On redirect examination, the prosecutor attempted to emphasize that Sandoval did not recall what he specifically said in each interview. “Now, when you are answering the questions that [defense counsel] ask you, and they’re reading from their binders, or they’re reading form their papers, do you actually remember saying the answers that they’re suggesting that you said, or are you just trusting that what they’re reading off of the papers is true?” Sandoval responded that he assumed the attorneys were accurately repeating what he had said in an earlier interview.
Defendants objected, arguing their right to due process was being violated because the prosecutor was suggesting that both defense counsel were lying. The trial court overruled the objection.
The prosecutor then clarified her intent. “And, Mr. Sandoval, to be clear, I’m not suggesting that [either defense counsel] has read you anything that’s not in the transcripts, because I have the transcripts in front of me, also, so I don’t mean to suggest that to you or to the jury. I’m only wanting to know if when they ask you, ‘Mr. Sandoval, do you remember saying this?’ Are you saying ‘Yes’ because you remember saying it, or are you saying ‘Yes’ because they’re reading it to you.” Sandoval said he responded affirmatively because the attorney’s were reading from the transcripts. On recross-examination, defense counsel confirmed with Sandoval that he responded to similar questions posed by the prosecutor in the affirmative for the same reason.
We reject Gustavo’s contention that the prosecutor was impugning defense counsel. It is clear from the record that the prosecutor’s point was that Sandoval did not recall many of the lies he told to the investigating officers, and he answered affirmatively to many of the questions because the attorneys were reading from the transcript of those interviews.
B. Vouching for Sandoval
Although the argument is far from clear, Gustavo apparently argues that the prosecutor vouched for Sandoval. The prosecutor began her closing argument by focusing on the only real issue in the trial -- the credibility of Sandoval and Rebecca. When discussing Sandoval, she began by noting he was an inmate in the jail, and she described him as a “criminal, ” “thug, ” “dope user, ” “minimizer, ” “selfish addict, ” “bad husband, ” and “bad friend.” She then noted that he arranged for Torres to be beaten and robbed. “So I’m not going to stand here and try to tell you that [Sandoval] is a great guy. He’s horrible.”
The prosecutor then made the statement, “Now, if there’s anything redeeming about [Sandoval], it’s that he’s the only one, according to Detective Toscano, either had the nerve or the stupidity to come forth and tell the authorities what happened, ” to which Gustavo objected.
“A prosecutor may not suggest the existence of ‘“facts”’ outside of the record by arguing matters not in evidence. [Citation.] Nor may a prosecutor suggest that matters outside the record establish the veracity of a witness; however, the prosecutor may assure the jury of a witness’s apparent honesty or reliability based on matters in the record. [Citations.]” (People v. Woods (2006) 146 Cal.App.4th 106, 113.)
Gustavo argues that the reference to Toscano somehow referred to facts outside the record that suggested Sandoval was truthful. We disagree. Toscano testified that Sandoval was the witness who was first contacted because of his frequent phone calls to Torres. Sandoval also was the one who identified defendants, although he at first claimed no personal knowledge. The prosecutor’s remark did nothing more than suggest that Sandoval, a despicable person, provided the evidence that led the investigators to Torres’s murderers. There was no reference to any evidence outside the record that would suggest Sandoval was being truthful.
C. Toscano Vouching for Rebecca and Sandoval
The prosecutor began her rebuttal argument by acknowledging the attacks made by defense counsel on Sandoval, Rebecca, and Gomez. She also acknowledged that these three were not paragons of virtue, but explained the average citizen is not involved in murder. She then turned to the issue of the lies that Sandoval and Rebecca told to investigating officers: “These are not people with the same moral compass as you. These are not the people who have the same values as you. You have to take these people for what they are and evaluate them based on your life experience. Ask yourself, is it reasonable to do the things that they did? It is not unreasonable for people to lie about being involved in murder. Don’t believe that because [the prosecutor] tells you that, believe that because [Toscano] testified to that. A man who has made it his life’s work to prosecute and investigate crime --” (Italics added.)
Gustavo complains that the italicized portion of the argument somehow constituted vouching by Toscano. He is wrong. The italicized portion of the argument referred directly to testimony by Toscano that it is not unusual for people involved in a crime to initially lie about what they know and what they did. There was no reference to matters outside the record. The prosecutor’s argument pertained to testimony heard by the jury. There was no misconduct.
D. Arson with Great Bodily Injury
Gustavo next complains that the prosecutor committed misconduct when she misstated the law about arson causing great bodily injury by suggesting Gustavo could be found guilty of the crime, even though Torres was dead when the car was ignited. We agree with Gustavo that the conviction cannot stand because there was no evidence that Torres was alive when the car was burned, thereby rejecting the prosecutor’s theory. Her argument that a dead body could suffer great bodily injury, however, was based on her interpretation of the law, albeit an incorrect interpretation of the law. She read the jury instruction correctly to the jury, but merely argued for an erroneous application of the law. The argument did not constitute misconduct. Moreover, since we have vacated the conviction, Gustavo cannot demonstrate any possible prejudice.
E. Vouching for Rebecca
During her rebuttal argument, the prosecutor argued the defense was trying to distract the jury from the truth by focusing on the lies that Sandoval and Rebecca told the investigating officers. She urged the jury to focus on the truth. “So you can go down that road, and if you do and you render a verdict of not guilty, you’re going to be letting two people who are guilty of murder walk out of here. They want you to avoid the truth. The truth is what [Rebecca] … told you. The truth is what you know from the ballistics. The truth is what you know that those shell casings, and those bullets, and the live ammo found at the Bautista house, all share class characteristics.” (Italics added.)
Gustavo focuses only on the italicized portion of the quotation to argue that the prosecutor was vouching for Rebecca. Once again, we disagree. The prosecutor did not suggest the jury should believe Rebecca because of some facts that were not in the record that proved Rebecca was being truthful. The prosecutor was urging the jury to believe Rebecca because the facts in the record corroborated her testimony. There was no improper vouching, nor any misconduct.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
“It is a bedrock principle in our jurisprudence that one accused of a crime cannot be compelled to testify against oneself. [Citations.] In order that an accused not be penalized for his invocation of this fundamental right, the prosecutor may neither comment on a defendant’s failure to testify nor urge the jury to infer guilt from such silence. [Citations.]” (People v. Hardy (1992) 2 Cal.4th 86, 153-154 (Hardy).) Both direct and indirect comments about a defendant’s failure to testify are prohibited. (People v. Hovey (1988) 44 Cal.3d 543, 572 (Hovey).) The prosecutor, however, may comment upon the state of the evidence or the defendant’s failure to introduce material evidence or to call logical witnesses. (Ibid.)
During her rebuttal argument, the prosecutor discussed Gomez’s testimony. She urged the jury to reject defense counsel’s argument that Gustavo had not made any statements to Gomez, but instead that Gomez had gone into Gustavo’s cell and read the police reports and then testified to what was in those reports. She pointed out that Gomez testified that Gustavo stated it was a mistake to leave the bullets in his bedroom closet. “Another thing that weaves into this is that … Gomez said that Gustavo admitted leaving this ammo in the closet was a mistake. Do you think that was in the police reports that he supposedly read? Those -- that’s not a statement that’s going to be in a police report. That came right out of Gustavo’s mouth. Because, guess what, if [Gustavo] would have told that to … Toscano we would have tried to admit it as evidence.” (Italics added.)
Gustavo argues that the italicized portion of the prosecutor’s comment violated the prohibitions of Griffin. We disagree. The prosecutor’s comment was a rebuttal to Gustavo’s argument that Gomez had surreptitiously entered Gustavo’s cell, read the police report, and then falsely claimed Gustavo made incriminating statements to him.
The prosecutor’s comment, when considered in context, demonstrated that Gustavo failed to introduce material evidence. If Gomez had fabricated the information to which he testified, then that information would have to be contained in the police report. Gustavo, however, did not produce evidence that the statement was contained in the police report, despite its being material evidence to support his argument that Gomez should not be believed.
Even if we were to assume, arguendo, that the statement violated Griffin, “brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citations.]” (Hovey, supra, 44 Cal.3d at p. 572.) Here, the comment was brief, mild, and was not asserted to suggest that Gustavo’s guilt could be inferred therefrom. The prosecutor was merely explaining why Gustavo’s argument that Gomez should not be believed was factually incorrect. No attempt was made to infer that Gustavo should be found guilty because he did not testify. Indeed, the comment referred to an event that, if it happened, did so before trial, i.e., a statement made by Gustavo that would have been included in a police report. The statement, if erroneous, was harmless beyond a reasonable doubt. (Hardy, supra, 2 Cal.4th at p. 154.)
VI. Judicial Misconduct
Defendants objected several times during the prosecution’s closing and rebuttal arguments. In lieu of directly ruling on the objections, the trial court repeatedly stated, “I’ll just simply state that the jury will be governed by the Court’s instructions and their recollection of the evidence, ” or words to that effect. The trial court had the same response to the prosecutor’s objections during defense closing arguments.
During the prosecution’s rebuttal argument, the defense objected that the prosecutor was misstating the law. The trial court responded, “Well, Counsel, I’ve said many times, Counsel, you’ve all made that objection. And, again, the jury will be governed by the Court’s instructions. And I hope that objection isn’t given any further in light of my statement.” Shortly thereafter defense counsel objected, claiming the prosecutor was improperly commenting on Gustavo’s failure to testify. The trial court responded, “Well, I’ll state for the final time, the jury will be governed by the evidence that they heard.” A short while later, the trial court overruled the next defense objection, perhaps recognizing its mistake.
The trial court’s failure to give thorough consideration to objections, defense and prosecutorial, was improper. Not every objection is properly resolved by referring the jurors to the instructions and the evidence. This approach should be discarded by the trial court.
Gustavo argues, however, that the trial court’s rulings, or failure to rule, and its rebuke to defense counsel constituted judicial misconduct. We disagree.
“A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution. [Citations.]” (People v. Carpenter (1997) 15 Cal.4th 312, 353.) “We ‘evaluate the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the court’s remarks deprived the accused of his right to trial by jury.’ [Citation.] ‘The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made. [Citation.]’ [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 531.)
First, defense counsel did not object on the basis of judicial misconduct. Accordingly, any claim has been forfeited. (People v. Boyette (2002) 29 Cal.4th 381, 459.) Second, even if we were to assume the objections have not been forfeited, there is no merit to the claim.
We have examined each of the claimed instances of judicial misconduct. While the last two comments by the trial court when ruling on defense objections indicated some impatience with defense counsel, the comments did not rise to the level of persistent discourteous and disparaging remarks. The remarks neither discredited the defense nor created the impression that the trial court was allying itself with the prosecution. Indeed, the trial court responded in the same fashion to prosecutorial objections during the closing arguments of defense counsel. The record establishes that the trial court was quite solicitous of all the attorneys throughout the trial and ruled in a fair and impartial manner. There was no judicial misconduct.
VII. Cumulative Error
Gustavo contends that even if the individual instances of error do not require reversal, the cumulative impact of the errors demands a new trial. (See, e.g., People v. Buffum (1953) 40 Cal.2d 709, 726, overruled on other grounds in People v. Morante (1999) 20 Cal.4th 403, 422.) We disagree because we have rejected all but one of Gustavo’s arguments. Therefore, there could not possibly be any cumulative effect.
VIII. Special Circumstance Findings
“Murder” is defined as the unlawful killing of another with malice aforethought. (§ 187, subd. (a).) All murders are murder in the second degree, unless the prosecution proves beyond a reasonable doubt that the murder was (1) committed in a manner specifically identified in section 189, (2) committed willfully, deliberately, and with premeditation, or (3) perpetrated during the commission or attempt to commit a list of enumerated crimes. (§ 189.) Robbery and kidnapping are included in the list of enumerated crimes. (Ibid.) Therefore, if a murder is committed during the commission or attempted commission of a robbery or a kidnapping, the murder will be of the first degree.
Once a jury determines the defendant is guilty of first degree murder, it may then consider whether the prosecution has proven beyond a reasonable doubt any special circumstance allegations alleged in the information. If the jury finds a special circumstance allegation true, then the defendant must be sentenced to either death or life in prison without the possibility of parole. (§ 190.2, subd. (a).) The special circumstances that will support an enhanced sentence include first degree murders committed while the defendant or an accomplice was engaged in the commission of a robbery or a kidnapping. (§ 190.2, subd. (a)(17)(A), (B).)
In this case the prosecutor argued that Gustavo committed first degree murder because Torres was killed during the commission of a robbery and a kidnapping. The jury found Gustavo guilty of both robbery and kidnapping. The prosecutor also alleged, and the jury found true, that Gustavo was subject to an enhanced sentence because the special circumstances of a murder committed during a robbery and a kidnapping existed in the case.
Gustavo contends the dual use of the fact that the murder occurred during a robbery and kidnapping (first to elevate the crime to first degree murder and second to impose an enhanced sentence) violates the Eighth Amendment to the United States Constitution. He candidly admits this argument has been rejected by the California Supreme Court (see, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1195), but makes the argument to preserve the issue for federal appeal. We are bound by the decisions of the Supreme Court and reject Gustavo’s argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
Gustavo’s conviction for violation of section 451, subdivision (a) is reversed, and the trial court is ordered to enter a conviction for violation of section 451, subdivision (d). In all other respects the judgment is affirmed. We remand the matter to the trial court for resentencing, and for issuance of a new abstract of judgment.
WE CONCUR: GOMES, J., DAWSON, J.