Opinion
B148380.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR BERMUDEZ et al., Defendants and Appellants.
Manuel U. Araujo, Lynne Patterson for Defendant and Appellant Arthur Bermudez. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Michael Castro, Jr. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Arthur Bermudez and Joseph Castro, Jr., were convicted by a jury of conspiracy to commit murder (count 6, with the jury finding true some but not all of the overt acts alleged), and murder in the first degree of Jamie Castillo (count 7). The jury also found true as to both appellants the special circumstance allegation that Castillo was a witness to a crime who was intentionally killed to prevent him from testifying, and found true as to Castro that he was a principal in the murder and at least one principal intentionally and personally discharged a firearm that caused great bodily injury. Bermudez was found not guilty of dissuading two witnesses, Jesus Marin and Tracie McGuirk (counts 8 and 9). After the jurys verdicts, the court found that Bermudez had suffered a prior serious felony conviction.
Two other co-indicted and jointly tried defendants, Richard Penunuri and Alfredo Tapia, are not parties to the present appeal. Penunuri was convicted of the following offenses (and related firearm and great bodily injury enhancements and special circumstance findings): the robberies of Shawn Kreisher (count 1) and Randy Cordero (count 2), an assault with a firearm on Carlos Arias (count 3), the murders of Brian Molina (count 4) and Michael Murillo (count 5), conspiracy to commit murder (count 6), and the murder of Jamie Castillo (count 7). The jury fixed Penunuris penalty at death.
Tapia was found not guilty of conspiracy to commit murder (count 6) and not guilty of murder in the first degree of Castillo (count 7).
Bermudez and Castro were both sentenced, inter alia, to prison terms of life without the possibility of parole. Contrary to their contentions on appeal: (1) there was no prosecutorial or judicial misconduct warranting a reversal of their convictions; (2) Marins testimony regarding the conspiracy and murder of Castillo was adequately corroborated; (3) the trial court did not err in refusing a requested instruction on third party culpability, or in instructing with CALJIC No. 17.41.1; (4) the trial court properly denied the motions for severance; and (5) there was no cumulative error warranting reversal of appellants convictions. However, Castro correctly contends that the 25-year enhancement for the use of a gun (Pen. Code, § 12022.53, subd. (d)) imposed with count 7 must be reversed because the jury did not find that he personally discharged the firearm. But for this required modification to Castros sentence, the judgments are affirmed.
Bermudez was sentenced to life in prison without the possibility of parole for the murder (count 7), plus a 5-year term for the prior conviction enhancement, but the court stayed the sentence of 25 years to life for the conspiracy (count 6). Castro was sentenced to life in prison without the possibility of parole for the murder (count 7), plus a 25-year term for the gun use enhancement, but the court stayed the sentence of 25 years to life for the conspiracy (count 6).
In this appeal, Castro joins in and adopts by reference all issues raised in Bermudezs opening brief that might accrue to his benefit (see Cal. Rules of Court, rule 13(a)(5)), though none do.
FACTS
Counts 1 and 2 - The Ralphs parking lot robberies of Shawn Kreisher and Randy Cordero by Richard Penunuri.
On October 23, 1997, Randy Cordero drove his friends Shawn Kreisher and David Bellman to the Ralphs supermarket in Whittier to buy some beer and cigarettes. On the way to the store, they noticed a white Cadillac with four or five occupants of the car staring at them. Cordero parked in the Ralphs parking lot. As he and his two companions started to walk toward the entrance of the supermarket, the Cadillac pulled into the parking lot and parked near their car. Several people got out of the Cadillac and ran toward Cordero, Kreisher and Bellman. The driver of the Cadillac, Richard Penunuri, stayed in the car.
A fight ensued, with the people from the Cadillac attacking Cordero, Kreisher and Bellman. During the fight, Penunuri got out of the Cadillac, walked over to Kreisher and demanded money. Kreisher gave Penunuri $ 40 because it appeared that he may have had a weapon in his pocket. Penunuri also demanded money from Cordero, but Cordero told him that he did not have any money. As Cordero, Kreisher and Bellman made their way back toward Corderos car, they heard one of their attackers yell, "Lets get his keys. Get his keys."
Cordero ran to his trunk and pulled out a baseball bat. Someone in the group with Penunuri yelled out, "Blast em" or "Blast his ass." Penunuri then walked toward the three men, pulled a gun from his jacket, and cocked the gun as if to fire it. Cordero, Kreisher and Bellman ran through the parking lot to a nearby intersection, where there happened to be several police officers investigating an accident. As they ran toward the police officers, they noticed that someone from the group with Penunuri picked up a black bag that had fallen out of Corderos trunk.
Two employees at Ralphs saw the men get out of the Cadillac and attack Cordero, Kreisher and Bellman. The employees wrote down the license plate number of the Cadillac and gave it to the police, who subsequently determined that the Cadillac was registered to Alejandro Delaloza.
Count 3 - Penunuri assaults Carlos Arias with a firearm.
At approximately midnight of the same day as the robberies at the Ralphs parking lot, Carlos Arias and his friend Luke Bissonnette were outside the home of Bissonnettes grandfather on Hornell Street in Whittier. Arias was not a member of a gang, but he was friends with members of the Chivas gang, a rival of the Cole Street gang to which Penunuri belonged. And Bissonnette had seen Bermudez and Castro associate with members of the Cole Street gang.
While Bissonnette and Arias were outside, Bissonnette saw a white car, which he recognized as Alejandro Delalozas Cadillac, pull up. Penunuri got out of the Cadillac and walked toward them. Delaloza remained inside the car with Jaime Castillo. When Penunuri told Bissonnette to get into the car, Bissonnette was frightened and ran to the back door of his grandfathers house.
Then Penunuri pointed a gun at Arias. Arias, in fear for his own safety, ran and hid in a neighbors backyard. Meanwhile, Bissonnette waited until he was certain the Cadillac had left, and then he ran from his grandfathers house back to his own house, which was a few blocks away. At his house, Arias met Bissonnette and Bissonnettes sister. Arias told Bissonnette that Penunuri had pulled out a gun and put it to Ariass head.
The trial court found that Arias was an unavailable witness, so his testimony from a prior proceeding was read into the record.
Counts 4 and 5 - The murders of Brian Molina and Michael Murillo.
Arias and Bissonnette continued talking on the back patio of Bissonnettes house, telling Bissonnettes sister what had happened. Also on the back patio were two friends, Brian Molina and Michael Murillo, who were asleep on the patio. After a few minutes, Arias, Bissonnette and his sister went inside the house.
Approximately 20 minutes later, they heard several gunshots. Bissonnette looked out the window and saw Penunuri running across the street. In his initial statement to the police, Arias identified Penunuri as the shooter. Both Molina and Murillo died from multiple gunshot wounds.
After hearing the gunshots, two neighbors looked out their windows and saw a white Cadillac. One neighbor saw two figures come from the backyard of the house next to Bissonnettes house and enter a Cadillac. Another neighbor looked out her window after she heard the shots and saw a male passenger get out of the white Cadillac and stand on the corner before the car left.
The next morning, Jaime Castillos uncle found Castillo and Penunuri asleep in the uncles van. The uncle gave Penunuri a ride home.
Soon after the double murder, the registered owner of the Cadillac, Delaloza, was arrested and gave the police a statement that was tape recorded. Delaloza admitted that he was a member of the East Side Whittier Cole Street gang. Regarding the events pertaining to the double murder, Delaloza told the police that he and Penunuri went to the house where Bissonnette lived to talk to a girl. When they arrived, Delaloza parked around the corner, and Penunuri went into the house. While Delaloza sat in the car, he heard gunshots and saw Penunuri running.
The trial court deemed Delaloza an unavailable witness and admitted, over appellants objections, the taped statement as a statement against Delalozas penal interest. The taped statement was played for the jury.
Delaloza was tried separately for his role in the double murder and was found guilty.
At the time of the double murder, Penunuris girlfriend was Castros sister. Penunuri told his mother that Castillo was with him and Delaloza on the evening of October 23.
Counts 6 and 7 - The conspiracy to murder and the murder of Jaime Castillo.
Appellants Bermudez and Castro, as well as defendant Tapia and the victim Castillo, were all members of the East Side Whittier Cole Street gang. Jesus Marin, who was not a member of that gang but associated with its members, lived in an apartment in Whittier with his wife, Tracie McGuirk, and their two children. Marin knew that Bermudez, Castro, Tapia and Penunuri were gang members. Marin had known Castro for several years and since approximately January of 1998 allowed Castro to live in his garage. Several members of the gang occasionally hung out in Marins garage and some, in addition to Castro, would spend the night. Marin would sometimes join the gang members in the evening and party with them.
Carmen Miranda was a close friend of Marins wife, and Miranda moved into their apartment with her two children at the end of December of 1997. Soon after she moved into the apartment, Miranda and Castro started a relationship.
In addition to coming over to party at the garage where Castro lived, Bermudez, Tapia and other members of the Cole Street gang called the apartment looking for Castro. Penunuri often called collect from the county jail looking for Castro, Bermudez or Tapia. Usually, Marin or his wife answered the phone and then passed the phone around to other people present in the apartment.
According to Marin, on one occasion when Penunuri called collect and talked to Castro, who was in the living room, Castro mentioned Castillos gang moniker (Cartoon) and heard Castro say things like, "Its fucked up. I11 handle it." Bermudez was also present during this phone call and talked to Penunuri on the phone. After Penunuris phone call, Bermudez and Castro went to the garage and were agitated, saying that "Cartoons gonna rat" and that "they need to shut him up." Castro explained that Penunuri told him that Castillo was going to testify against him and that Castro was to tell Castillo to "keep his mouth shut." Tapia was also present in the garage during the discussion.
McGuirk recalled a telephone call from Penunuri during which she overheard Castro say that Castillo was going to testify against Penunuri. She also overheard Castro tell Penunuri not to worry and that he would take care of it. Both Bermudez and Tapia were present in the living room during the telephone call. McGuirk also recalled other telephone calls from Penunuri to her apartment in which she heard Castillos name mentioned.
Miranda recalled Penunuri calling the apartment in the beginning of January and talking to Bermudez and Castro. Bermudez and Castro, as well as Tapia, took the call upstairs in the apartment. Miranda overheard Castro mention Castillos name and say that he and Bermudez would get rid of him. Miranda recalled several telephone calls where Penunuri called from the county jail and talked to Bermudez, Castro and Tapia.
Telephone records established that Penunuri called Marins apartment from the county jail on January 5, 1998, and that the call lasted 31 minutes. When Penunuri called again on January 8, the call lasted five minutes. Penunuri also called Marins apartment on January 9, 10, 11 and 15, as well as several more times during the ensuing two weeks.
Bermudez and Castro began discussing plans to harm Castillo to ensure that he did not talk about the murders of Molina and Murillo. They told Tapia that he had to shoot Castillo or they would "hurt" Tapia. A few nights before Castillos murder, Tapia was in Marins garage with a small handgun. Although Bermudez and Castro told Tapia they would "fuck him up" if he did not kill Castillo, Tapia said that he could not do it. At some point, they decided that Marin would drive all of them in his car to pick up Castillo.
On the evening of January 14, 1998, Castro told Tapia to call Castillo and tell him that they wanted by buy some drugs from him and party with him. McGuirk recalled that Bermudez arrived after school. He attended evening classes at a technical institute. According to telephone records, Castro used his cell phone to page Castillo three times, at 10:40 p.m., 11:21 p.m. and 11:50 p.m. on January 14. Sometime after the pages, Castillo called back.
They planned to pick up Castillo, drive to a secluded location, and kill him. Marin drove all of them to Castillos house, and they picked him up. Bermudez and Castro both gave Marin driving directions. Eventually, they pulled over at a turnout embankment off Highway 39 in Azusa Canyon. Everyone got out of the car and walked down the side of the embankment.
Castillo took out some crystallized methamphetamine which he shared with everyone. When Tapia separated from the group, Marin went over to him. Tapia told Marin that he could not kill Castillo and that he had given the gun to Castro. Marin and Bermudez returned to Marins car and rolled a joint. Marin watched Castro, Tapia and Castillo through his rear view mirror. Marin saw Castro walk behind Castillo, stretch out his arm while holding a gun, and kill Castillo by shooting him in the back of the head. Marin drove Bermudez, Castro and Tapia back to his apartment. During the drive back, Castro kept repeating that he had shot Castillo.
When they returned to Marins apartment, Bermudez left without going inside the apartment, while Castro sat in the garage and cleaned the gun. Castro removed an expended casing that was jammed in the gun and placed it inside a hole in the garage wall. The next day, Miranda saw Castro wrap up some items and put them in a hole in the garage wall; she believed he hid the gun and some gloves. Castro confessed to Miranda that he had shot Castillo.
Counts 8 and 9 - Bermudez allegedly attempts to dissuade Marin and McGuirk from testifying.
Several weeks after Castillos murder, Castro was arrested on an unrelated matter, and his truck was impounded. Castro called Marin and asked him to get his truck out of the impound. Marin and his wife did so. Soon thereafter, Bermudez and two other men visited Marin. They accused Marin of talking and being a "rat." While the two men fought with Marin, Bermudez jumped into Castros truck and drove off. Bermudez called Marins apartment a couple of days later and told Marin and McGuirk to keep their mouths shut or he was going to hurt them. Marin and his family then moved to another area.
The defense evidence at trial.
Penunuri presented evidence that no gunshot residue particles were found on his black jacket, and that such telltale residue would have been left on the shooters jacket. His defense also attempted to undermine the reliability of Bissonettes eyewitness identification of him as the shooter by pointing out the lighting conditions, the distance, the observers expectations, and the limited opportunity for accurate observation.
Bermudezs defense was alibi. He was enrolled in evening classes at ITT Technical Institute. His classes met between 6:00 p.m. and 10:00 p.m. Monday through Friday. The instructors at the school took attendance each hour, marking on a scan form whether the student was present, absent, tardy or left early. However, if the instructor does not mark the form, the computer records the student as present. School record for January 14, 1998, show that Bermudez was not in the classroom when the roster was called at 6:00 p.m., but arrived approximately 15 minutes later. The instructors did not mark the scan forms for the next three hours, and the computer thus interpreted this to mean that he was present until his class ended at 10:00 p.m.
Christina Esqueda, Bermudezs girlfriend, supported his alibi claim. She asserted that on January 14, 1998, Bermudez and a friend picked her up after school. They went to Marins apartment, then to visit another friend, and returned to Marins apartment where they used drugs together before she and Bermudez left to be alone.
Bermudez also relied on the fact that forensic evidence from the area where Castillos body was found included numerous shoe prints. None of the shoe prints from the crime scene matched any of his (or Tapias) shoes, which had been seized by police in May of 1999.
Castro did not present any evidence in his defense.
Rebuttal evidence at trial.
On May 21, 1999, wiretaps were placed on the telephones of the residences of appellants, Tapia and Marin. Wiretaps were also placed on the jail telephones of Penunuri and Delaloza. In three telephone calls recorded from Bermudezs residence, he told friends and family members that the police had searched his house, that they were trying to prosecute him for Castillos murder, and that "Tony" (i.e., Marin) was "ratting" on him. In a telephone conversation several days later with an unknown person, Bermudez asked how the police got their information and commented, "You know we can do Tony right away." Later that same day, Bermudez remarked during another conversation that he was going to "jam," meaning get out of town. Other taped telephone conversations also revealed Bermudezs desire to hide and leave town.
DISCUSSION
I. No prosecutorial or judicial misconduct warranting a new trial.
Appellants contention that misconduct by the prosecutor and the court violated their rights to a fair trial and due process is without merit.
A. General principles in evaluating
alleged prosecutorial misconduct.
It is well settled that a defendants federal constitutional rights are violated when a prosecutors behavior amounts to a pattern of conduct so egregious that it infects the trial with such unfairness as to render the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819, 952 P.2d 673.) Conduct 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 trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)
A prosecutor is accorded wide latitude during argument and may vigorously argue his case, even without politeness and with the use of appropriate epithets. (People v. Hill, supra, 17 Cal.4th at p. 819.) But a prosecutor must maintain the respect due to the courts and abstain from all offensive personality. (Ibid.) The valued interest in a criminal prosecution is not that the prosecutor ""win a case, but that justice shall be done."" (Id. at p. 820.)
Moreover, as a general rule a defendant may not complain on appeal of prosecutorial misconduct unless the trial record reflects a timely objection or a request for an admonition to the jury, unless such objection or admonition would have been futile. (People v. Hill, supra, 17 Cal.4th at p. 820.) "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (People v. Hines (1997) 15 Cal.4th 997, 1038, 938 P.2d 388.)
B. No improper display of emotion during opening statement.
At the conclusion of the prosecutors opening statement and out of the presence of the jury, Bermudez moved for a mistrial "based on the prosecutors showing of emotion," arguing the prosecutor had been close to tears. Bermudez contended that such "emotion [is] really playing to the passions [and prejudice] of the jury" and alleged it amounted to prosecutorial misconduct. The prosecutor replied that his voice may have cracked, but that he had not displayed any improper emotion. The trial court denied the motion for a mistrial.
A prosecutor must not engage in "an improper appeal to a free-floating passion and prejudice unrelated to the evidence" to be presented to the jury. (People v. Padilla (1995) 11 Cal.4th 891, 945, 906 P.2d 388.) An argument may not give the impression that "emotion may reign over reason" and present "irrelevant information or inflammatory rhetoric that diverts the jurys attention from its proper role, or invites an irrational, purely subjective response." (People v. Lewis (1990) 50 Cal.3d 262, 284, 266 Cal. Rptr. 834, 786 P.2d 892.) Nonetheless, counsel may argue the evidence "emotionally and vividly . . . using terms that might be thought melodramatic or theatrical." (People v. Ochoa (1998) 19 Cal.4th 353, 463, 966 P.2d 442.)
Here, the prosecutors voice cracking during the opening statement did not constitute an improper appeal to passion or prejudice. A criminal trial, particularly one involving multiple murders, is not an abstract, sterile event with all semblance of human emotion barred at the door. Even the most experienced and hardened counsel bring with them human nature. The record does not indicate that the prosecutors voice or actions reflected anything unduly theatrical or exaggerated in tone or duration, were accompanied by any improper remark, or were otherwise inappropriately inflammatory. The prosecutors voice cracking at one point, and any related display of emotion, was simply not error.
C. No improper vouching by the prosecutor.
Appellants contend that the prosecutor in his closing argument improperly vouched for the credibility of witness Marin. A prosecutor may not express a personal opinion or belief in the credibility of a witness where there is a "substantial danger that jurors will interpret this as being based on information at the prosecutors command, other than evidence adduced at trial." (People v. Adcox (1988) 47 Cal.3d 207, 236, 253 Cal. Rptr. 55, 763 P.2d 906.) However, when the prosecutors assurances regarding the apparent honesty or reliability of a witness are based on the facts established by the record and the inferences reasonably drawn therefrom, his comments cannot be characterized as improper vouching. (People v. Frye (1998) 18 Cal.4th 894, 971, 959 P.2d 183.)
In the present case, Bermudez argues that the following passage taken from the prosecutors rebuttal argument constitutes improper vouching for Marins credibility: "If you in your mind decide that a person like Tony Marin, who from what theyre portraying him to be, to be such an intelligent person that he was able to master mind this frame up of four innocent individuals, including Richard Penunuri, if you found that Tony Marin was just so intelligent that he could actually fool the sheriffs department; a person like Joe Holmes caliber of 30 years experience in handling murder cases, but he was able to pull the wool over his eyes; pull the wool over the eyes of a Grand Jury and as well as the prosecutors office, who makes it its business to get to the bottom of these particular crimes, if Tony Marin is, in fact, that master mind, he should not have been working at the Rio Hondo College. He should have been working for the C.I.I. [sic] in covert operations. Because that was a brilliant job that he did in coming up with this particular story to frame these innocent men."
Neither appellant objected to the above statement by the prosecutor or requested any admonition to the jury. Apart from whether the issue was thus waived (see People v. Samayoa (1997) 15 Cal.4th 795, 841, 938 P.2d 2) and whether, even if there were an objection and a curative admonition, there is no reasonable probability of a different outcome (ibid.), the passage complained of does not constitute improper vouching.
"Accusations of misconduct of counsel read out of context frequently exaggerate its seriousness." (Love v. Wolf (1964) 226 Cal. App. 2d 378, 385, 38 Cal. Rptr. 183.) "It is only the record as a whole, and not specific phrases out of context, that can reveal the nature and effect of [the conduct complained of]." (Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 318, 74 Cal. Rptr. 534, 449 P.2d 750.)
The context here is as follows: before Marin testified, the jury was informed that he had been granted immunity in this case; the jury was advised that Marin was an accomplice as a matter of law and his testimony had to be corroborated by someone other than an accomplice; and when Marin testified, he confirmed that he had been granted immunity in this case in exchange for his truthful testimony. And Marins credibility was a major focus during closing argument.
During the prosecutors closing argument, he argued that as to Marin it was "a lousy thing to have to take an accomplice and transform that person into a witness," but that it was necessary in this case to bring appellants and the two other defendants to trial. During Castros closing argument, his counsel challenged Marins accomplice testimony, urged that Marins testimony was suspect, that he had a motive to lie, and that Marin was the shooter. Castro cited alleged examples of Marins lies, and argued that McGuirk and Miranda also had motives to lie and thus did not sufficiently corroborate Marins testimony.
During Bermudezs closing argument, he asserted the validity of his alibi, based on his school attendance records and his girlfriends testimony. He also repeatedly and forcefully argued that Marin, McGuirk and Miranda were liars who had motives to lie and concocted a story about Bermudezs involvement. According to Bermudez, the physical evidence at the crime scene of Castillos murder did not corroborate Marins accomplice account, and neither did Marins home and Castros cellular telephone records.
During the prosecutors rebuttal, he addressed appellants arguments. He noted the evidence he believed corroborated Marins account of the conspiracy to murder Castillo and Castillos subsequent murder and the evidence that implicated appellants. Specifically, the prosecutor focused on circumstantial evidence, such as telephone and pager records. He also argued that the events had occurred some time ago, and that any inconsistencies in Marins testimony were innocent misrecollections of the sequence of events.
Regarding the passage in the prosecutors rebuttal complained of as vouching, it is apparent that the prosecutor merely pointed out to the jury the implausibility of appellants theory that Marin had set them up because Marin was purportedly the shooter or because he wanted to avenge Miranda. The prosecutor properly argued that Marin was not sophisticated enough to have framed appellants and that there was no believable motive for him to have done so.
Viewed in its proper context, the prosecutor did not suggest to the jurors that they should forgo their independent assessment of the evidence and accept his word that Marin was truthful. Rather, the prosecutors comments that Marin could not have "fooled the sheriffs department," "pulled the wool over [the] eyes" of the officer who had "30 years experience in handling murder cases," and "pulled the wool over the eyes of a Grand Jury and as well as the prosecutors office" was a challenge to the jurors to reflect on the evidence presented and to test appellants theory that Marin was purportedly the shooter and lied to exculpate himself.
Considered in context and in relation to appellants closing arguments, the prosecutors rebuttal argument cannot reasonably be construed as an effort to vouch personally for Marins credibility. This was not, for example, a case where the prosecutor improperly asserted he was "absolutely convinced" of guilt (People v. Hidalgo (1947) 78 Cal. App. 2d 926, 938, 179 P.2d 102, italics omitted), or proclaimed "that he knew that [the defendant] was guilty" and "God knows that [the defendant] is guilty" (People v. Talle (1952) 111 Cal. App. 2d 650, 673, 245 P.2d 633), or argued to the jury that he would never prosecute a man he did not believe was guilty and that 24 other jurors and two trial judges had agreed with him (People v. Modesto (1967) 66 Cal.2d 695, 715, 59 Cal. Rptr. 124, 427 P.2d 788). To the contrary, where the prosecutor here urged the jury to accept Marins version of events while discussing the evidence corroborating it, there was no vouching but only a permissible argument to persuade jurors to draw reasonable inferences based on the evidence. (People v. Frye, supra , 18 Cal.4th at p. 972.)
D. Wiretap evidence was properly admitted as rebuttal evidence and did not violate the parties pretrial agreement.
Bermudez contends the admission of the wiretap evidence as rebuttal evidence voided the parties pretrial agreement. He alleges the prosecutor sandbagged the defense by improperly introducing the wiretap evidence as rebuttal, the trial court should have imposed a proper limitation on the use of the evidence, and the erroneous admission of the wiretap evidence warrants a reversal of the convictions. Alternatively, he asserts that if we find the wiretap evidence was properly admitted, he received ineffective assistance of counsel due to defense counsels failure to make a pretrial motion to suppress this evidence. Apart from Bermudezs failure to object on constitutional grounds to this evidence at trial (which was introduced only as to Bermudez), the contention is unavailing because the evidence was properly admitted during rebuttal, and Bermudez was not denied the effective assistance of trial counsel.
Prior to trial, the prosecutor had wiretap evidence showing Bermudezs consciousness of guilt and some adoptive admissions. Bermudez advised the trial court that the prosecutor would be turning over log sheets kept in connection with this evidence. The prosecutor indicated there were several hours of wiretap recordings that had been compiled on a set of two CD ROMs, which had been turned over to defense counsel. To go forward with the trial as soon as possible, the prosecutor offered not to introduce the wiretap recordings in his case-in-chief, but with the specific reservation that "perhaps something might be necessary to use in rebuttal." The prosecutor candidly acknowledged that he did not expect to use any of the wiretap evidence during his case- in-chief because the process of culling out material in preparation of the trial would be overly burdensome for him.
During the trial, the prosecutor indicated he would seek a hearing, pursuant to Evidence Code section 402, to determine the admissibility of some of the wiretap evidence. He sought to introduce evidence of telephone conversations between Bermudez and family members and friends for the purposes of rebuttal. He urged that the evidence was relevant to rebut Bermudezs alibi defense, by indicating Bermudezs consciousness of guilt in his attempt to flee, which was the subject of some of the taped conversations. The trial court ruled that since Bermudez would be arguing that he was not at the murder scene, the evidence was "certainly impeaching and rebuttal evidence to put on a consciousness of guilt evidence to indicate that he was there" and that it was not necessary to have had Bermudez testify on his own behalf.
Bermudezs counsel then asserted that he had forgone a motion to suppress the evidence "not on the condition that it would be used for rebuttal, but it would only be used for purposes of impeachment, which is a lot different. . . . That was specifically our discussion as I recall it." The prosecutor insisted that his offer had been merely to reserve use of the wiretap evidence for purposes of rebuttal, that he had honored the offer, and that the evidence was proper for rebuttal. The court observed that rebuttal "gives the lie to any evidence that was adduced by the defense," since the thrust of the defense was that Bermudez was not present and there would have been no reason to flee and much incentive to reveal more promptly his alibi to the investigating officers.
Thereafter, at the hearing the court reviewed the pretrial transcript and quoted from the prosecutors statement that he would "not use any wire tap information whatsoever in [his] case in chief but thats not to say that perhaps something might be necessary to use in rebuttal." Counsel for Bermudez again raised the issue of his subjective interpretation of the prosecutors offer as the reason for not filing a motion to suppress, which he asserted would not have been a frivolous motion even though the wiretaps were court authorized.
Ultimately, the court admitted the wiretap information involving 10 different taped telephone conversations in which Bermudez was a participant. Most of the statements were introduced to show consciousness of guilt, and other statements were adoptive admissions. In pertinent part, the taped conversations contained statements from Bermudez acknowledging that he was being investigated for Castillos murder, that he intended to leave town, that he knew Marin and Miranda had "ratted" on him, that they could "do" Marin "right away," that he was "hiding," and that he was ready to run when they came to get him. But for one telephone call, Bermudez did not deny involvement in Castillos murder.
"The admission of rebuttal evidence rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of palpable abuse." (People v. Carrera (1989) 49 Cal.3d 291, 323, 261 Cal. Rptr. 348, 777 P.2d 121.) As discussed below, we find no palpable abuse, and certainly no unfairness amounting to a denial of due process.
We note that at trial, Bermudez did not specifically challenge the admissibility of the evidence on due process grounds. He urges on appeal that his general complaint about the evidence evoked concerns about unexpected unfairness, though he did not specifically use the term unfairness either, and that unfairness is equivalent to a violation of due process. In any event, Bermudez did specifically raise a due process violation in his motion for a new trial.
"If evidence is directly probative of the crimes charged and can be introduced at the time of the case in chief, it should be. [Citations.] [P] The purpose of this restriction is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponents case is suddenly confronted at the end of trial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecutions possession that tends to establish the defendants commission of the crime. It is restricted to evidence made necessary by the defendants case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt." (People v. Thompson (1980) 27 Cal.3d 303, 330, 165 Cal. Rptr. 289, 611 P.2d 883, italics added; see also People v. Mayfield (1997) 14 Cal.4th 668, 761, 928 P.2d 485.)
In the present case, the prosecutor introduced Bermudezs statements made during telephone conversations in an effort to persuade the jury that Bermudezs alibi defense that he was with his girlfriend at the time of Castillos murder was false. These statements indicated Bermudezs desire to flee. They became relevant only after his alibi defense was presented to the jury, as such statements were inconsistent with Bermudezs not having been present at the scene of Castillos murder. As the trial court explained, he would have had no reason to flee if he had not been at the scene of Castillos murder, and he would have promptly come forth with his alibi as soon as he realized he was being investigated for the murder.
Bermudez argues that the prosecutor had pretrial notice of Bermudezs alibi defense. Indeed, Bermudezs motion to sever the trial from Tapias trial noted: "Bermudez anticipated defense [is] that he neither conspired to kill Mr. Castillo nor was he present when someone murdered Mr. Castillo." And during his opening statement to the jury Bermudezs counsel gave an overview of Bermudezs alibi defense, noting the ITT school records and claiming that at the time of the murder Bermudez was with his girlfriend.
However, as repeatedly observed in cases discussing rebuttal evidence, such evidence is restricted to evidence necessitated by the defendants having "introduced new evidence or made assertions that were not implicit in his denial of guilt." (People v. Mayfield, supra , 14 Cal.4th at p. 761; see also People v. Thompson, supra, 27 Cal.3d at p. 330; People v. Carter (1957) 48 Cal.2d 737, 753-754, 312 P.2d 665.) That the prosecutor had notice of Bermudezs likely presentation of an alibi defense is thus not determinative. What is critical to the determination here is that the alibi evidence presented in the defense case was indeed new "evidence," and that the alibi defense was not "implicit in [the] denial of guilt." (People v. Mayfield, supra, 14 Cal.4th at p. 761.) All that a defendants denial of guilt necessarily implies is a denial of the elements of the offense alleged in the accusatory pleading. (Pen. Code, § 1019.) And it is only the facts establishing the elements of the offense that must be put into the prosecutors case-in-chief and not unfairly arrive in rebuttal at the end of trial as "crucial evidence" of "a material part of the case." (People v. Carter, supra, at p. 753.)
Accordingly, we find no palpable abuse of discretion or denial of due process in permitting the rebuttal evidence of wiretaps revealing in pertinent part consciousness of guilt from statements inconsistent with an innocent persons alibi defense.
Bermudez also complains that his trial counsel "forewent [sic] drafting and filing a motion to suppress the wiretap evidence on the representations of the prosecutor that he would not be utilizing this information except for rebuttal [,which trial counsel thought] applied [only] to the situation where a person took the stand and testified contrary to the taped evidence permitting them to be impeached." Bermudez thus alternatively claims ineffective assistance of trial counsel. The record, however, is barren of any indication of any possibility of success on a theoretical motion to suppress the wiretap evidence. Trial counsel is not ineffective for failing to raise fruitless, time-consuming or nonproductive motions or objections. (People v. Ochoa, supra, 19 Cal.4th at p. 463; People v. Jackson (1989) 49 Cal.3d 1170, 1189, 264 Cal. Rptr. 852, 783 P.2d 211.) Bermudez has thus failed to establish the requisite prejudice. (See In re Visciotti (1996) 14 Cal.4th 325, 352, 926 P.2d 987.)
E. The trial courts various evidentiary rulings and comments to defense counsel did not constitute judicial misconduct.
Bermudez complains of instances of the trial courts conduct that he alleges demonstrate the court was biased against him and engaged in prejudicial misconduct. The complaints are without merit.
A trial court may commit misconduct if it persistently makes discourteous and disparaging remarks discrediting the defense or creating the impression that it is allying itself with the prosecution. (People v. Fudge (1994) 7 Cal.4th 1075, 1107-1108, 875 P.2d 36; People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207.) Nonetheless, a trial court possesses the inherent power to control its courtroom, regulate the proceedings before it, and maintain order and security. (People v. Woodward (1992) 4 Cal.4th 376, 385, 841 P.2d 954; People v. Miller (1960) 185 Cal. App. 2d 59, 77, 8 Cal. Rptr. 91.)
A trial court has the extremely broad power to control the conduct of "all . . . persons in any manner connected with a judicial proceeding before it, in every manner pertaining thereto." (Code Civ. Proc., § 128 , subd. (a)(5).) Moreover, "it shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (Pen. Code, § 1044.) Absent clear evidence of bias or other misconduct, a reviewing court should defer to the trial courts decisions to control the proceedings over which it presides. (People v. Fudge, supra, 7 Cal.4th at p. 1108.)
First, Bermudez complains now, without having objected at trial, about two comments made by the trial court during the cross-examination of Marin, arguing that the comments denigrated his defense counsel. Apart from the waiver of such claims by the failure to object (see People v. Sanders (1995) 11 Cal.4th 475, 531, 905 P.2d 420; People v. Burnett (1993) 12 Cal.App.4th 469, 476), as discussed below, the trial court properly exercised its right to control the proceedings and restrict cross-examination which is, for example, "confusing of the issues, . . . repetitive or only marginally relevant." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679, 89 L. Ed. 2d 674, 106 S. Ct. 1431; see People v. Frye, supra, 18 Cal.4th at p. 946.)
The first challenged comment by the court
Just prior to the first comment complained of by Bermudez, his defense counsel used an "exhibit book" in an attempt to refresh Marins recollection relative to his taped statements to a detective on April 20, 1999, regarding when he had next seen appellants after Castillos murder. In response to the courts question, Marin replied that his independent recollection was that he had next seen Castro within a day or two of the murder, which coincided with the transcript of the taped interview Marin had given to the detective. At that point, the court interjected with the challenged comment: "Seems to me thats completely consistent with his testimony up to this point. The only time that its proper to bring this sort of material up is if its impeaching and the court finds that it is not impeaching."
Bermudezs defense counsel took exception to the courts comment: "Well, your Honor, I beg to differ. Im sorry. We11 have to let the jury decide." The court responded, "You may beg to differ, but Ive ruled." The court was correct in ruling that Marins testimony on that point was consistent with his prior statements, and cross-examination on that point was thus not relevant, arguably confusing, and well within the trial courts discretion to limit. (See Pen. Code, § 1044; Evid. Code, § 765, subd. (a).) In any event, as Bermudez acknowledges, defense counsel "then went on to thoroughly question the witnesses in order to point out the discrepancy of the statement," thus establishing the absence of prejudice from any purported restrictions on that line of questioning.
The second challenged comment by the court
The second comment by the trial court about which Bermudez complains was preceded by Bermudezs defense counsel asking Marin whether he had told an investigating detective on April 20, 1999, that Bermudez and Castro did not have a car. Marin replied that he had in fact so told the detective. When defense counsel then asked Marin to turn to a specific page in the transcript of that interview, the court inquired if either side intended to play the tape for the jury. Defense counsel said he would not play the tape, as it contained too much hearsay and other matters that had been excluded by the court. The prosecutor responded that his only concern was that "information may be taken out of context, if we dont hear the entire record." The court remarked that it had the same concern.
The trial court then made the second challenged comment to counsel in front of the jury: "So if were not going to play the tape, why, then, I think its unfair to pull a sentence here and a sentence there and the jury is left in the dark as to what the conversation is about." (Italics added.) When defense counsel asked whether the court was preventing him from asking a question by referring to the transcript, the court replied that it had ruled as inadmissible some of the testimony included in the tape, it would be difficult to edit the tape, but that if defense counsel insisted "on asking questions in these tapes, in order that the jury may be advised of the whole thing, then the tape will be played in its entirety and all of the answers will come in. [P] So . . . you proceed in this matter at your peril."
Contrary to Bermudezs belated assertion on appeal, the court did not comment inappropriately when remarking that it would be unfair to pull out of context various sentences and leave the jury in the dark about the nature of the conversation. The court did not accuse defense counsel of trickery, but rather commented in response to the prosecutors stated concern that portions of the transcript which defense counsel was attempting to use to impeach Marin might be taken out of context if the jury did not hear the entire tape. And the court properly pointed out to defense counsel the danger in his tactic, because where part of a conversation is put into evidence by one party, "the whole [conversation] on the same subject may be inquired into by an adverse party." (Evid. Code, § 356.) This was simply not a case where the trial courts comment was so discourteous or disparaging toward defense counsel as to indicate any improper alliance between the prosecution and the court.
The courts comments during the cross-examination of McGuirk and Miranda
During the cross-examination of McGuirk, Bermudezs defense counsel asked her about the presence of a gun during one of the two alleged instances of Bermudezs attempt to dissuade a witness (i.e., counts 8 and 9, of which Bermudez was found not guilty). The trial court interjected: "Counsel, there was no suggestion in this evidence that there was any gun that was involved in this incident by any witness thats testified." Defense counsel replied, "Your Honor, Ive let the record speak for itself." However, before the court interrupted, McGuirk had responded that she had not seen Marin with a gun at that time.
The next day, while McGuirk was on call to the defense, Bermudezs defense counsel reminded the trial court that Marin had, in fact, testified he had a gun and had pulled it out when McGuirk was pushed. The court admitted it had made a mistake. Defense counsel then stated that he knew the judge was a "fair man" and that he believed the court was "not biased in this case," but that "the manner in which [the court] interjected [its] comment . . . ." The court interrupted and stated it would correct the matter with the jury.
When the jury was seated, the court addressed it with a lengthy apology. The court stated, in pertinent part, that "I must apologize" for a "mistaken" impression as to the facts and specified as follows: "In Mr. Marins testimony its been called to my attention that the record supports the fact that Mr. Marin himself said that when these people began to rough up his ole lady, as the testimony went, that he, in fact, did display a weapon to discourage them from doing so. [P] There was a conflict in that testimony, because the last witness denied that there was any weapon. But, in fact, there was evidence from Mr. Marin himself that there was. [P] And I called on [defense counsel] in the middle of his examination and said that there wasnt any evidence that a weapon was presented at that time. And I was mistaken." (Italics added.)
The trial court also reminded the jurors that they were the sole judges of the evidence, and that what the jury should consider was what was said from the witness stand. Finally, the court stated, "Because of the fact that I may have created an erroneous impression, I wanted to correct the record for you." In view of the trial courts profuse and explicit apology, its clear correction of the record facts for the jury, the presumption that the jury followed the courts admonition (see People v. Horton (1995) 11 Cal.4th 1068, 1121, 906 P.2d 478), and Bermudezs acquittal on the two relevant counts, Bermudez suffered no prejudice. And the trial courts candid acknowledgment of error and its thorough correction actually illustrate the absence of any purported judicial bias.
Nor is there any merit to Bermudezs complaint when the trial court interjected an objection during defense counsels cross-examination of Miranda, noting it considered a question "to be frivolous and absurd," and restricting cross-examination under Evidence Code section 352. Bermudez contends that defense counsel was precluded from establishing "that the defendants would not have called her on her pager and left threatening messages because they did not know that she was speaking to [a detective.]" In context, prior to the complained of remark, counsel had questioned Miranda regarding who had access to her pager number. During cross-examination, Miranda testified she had spoken with McGuirk prior to contacting the detective, that McGuirk had told her that the detective wanted to speak to her about the night of Castillos murder, and that she had obtained the detectives telephone number from McGuirk. When defense counsel asked Miranda whether, after talking with McGuirk, she had "picked up the phone and called up [appellant] Castro and [told] him that [she was] going to be talking to [the detective,]" the trial court made the statement complained of: "Counsel, thats an absurd question. The court will sustain its own objection to it." The court then denied defense counsels request for "a side bar." Counsel asserted he was attempting "to establish foundational facts."
Counsel for Bermudez then proceeded with the cross-examination of Miranda, asking her whether she had told any of the defendants that she would be speaking to the detective before doing so. She responded that she had not. Miranda then related how she had received several pages out which she had told the detective. The pages received on March 30 and 31 and April 1, 2 and 4 were coded references, which meant "murder to you," "murder you hoe," "murder to you, ha, ha, ha," and the like.
At that point, the trial court interjected, and determined from Miranda that she was not able to determine who had sent these pages. The court then admonished the jury: "I feel that for the protection of the defendants its fair to say that the jurors can consider this testimony for what its worth but it would be completely unfair to attribute these calls to any one of these four defendants. Remembering each one of them [is] entitled to a completely separate trial. And since theres no authorship here, you can . . . give this testimony whatever weight you feel it deserves. But I feel, out of my desire to protect the fair trial of each of the defendants, that I should caution you that you should not consider this evidence against one of these defendants individually."
Thereafter, Miranda indicated she had spoken with the detective at the time the first page was received on March 30, 1999, and defense counsel asked her, "Now, isnt it true that the only persons who knew that you were talking to [the detective were] Tracie McGuirk and Tony Marin?" The trial court, denying counsels request for a side-bar, sustained its own objection because it called for a conclusion on Mirandas part. The court also reminded the jury that a question was not evidence, that it was only material to the extent it gave meaning to the answer, and that the jury was not to consider the reason for the objection or the question itself if an objection was sustained. When defense counsel asked, "And the only one that had contact with you about talking to [the detective] was Tracie McGuirk, who had called you a few days before; is that correct?" the court sustained the prosecutors objection on the same ground. Miranda then testified that McGuirk paged and also talked to her a few days before Miranda met the detective.
After Miranda was placed on call to the defense, Bermudezs counsel moved for a mistrial. Out of the presence of the jury, counsel claimed that the trial courts conduct toward him gave the jury the impression that the court believed his questions were "ridiculous and ill-founded." The court denied the motion, reminding counsel that the parties had "a side-bar conference" on the same subject, that the other defense attorneys had objected to "this information being brought up," and that counsel did not "say that it was [his] intention to bring it up." The court also explained that it believed the testimony on this subject was detrimental to the other defendants because the jurors knew that calls could have originated from any of the defendants, as there were telephones in the county jail, as well as elsewhere, and all the defendants could possibly have been interested in making these calls. The court noted that it considered defense counsels question to be "frivolous and absurd," and had therefore exercised its right to control the proceedings and to preclude it under Evidence Code section 352.
Viewed in its proper context, the trial courts comments regarding counsels cross- examination of Miranda were accurate and arguably quite frank, but nonetheless not so discourteous or disparaging as to indicate bias by the court. (See People v. Carpenter (1997) 15 Cal.4th 312, 353, 935 P.2d 708.) The courts rulings were consistent with its statutory authority to control the proceedings (see Pen. Code, § 1044; Evid. Code, § 765, subd. (a)), and its broad discretion to keep cross-examination within reasonable bounds. (See People v. Jones (1962) 207 Cal. App. 2d 415, 421, 422, 24 Cal. Rptr. 601.)
The courts advisement to the jury that Delaloza had refused to testify.
Bermudez contends that the trial court committed prejudicial misconduct by advising the jury that Delaloza had refused to testify because the jurors might have thought he was threatened not to testify. Out of the presence of the jury, Delaloza had stated he was not going to testify just "cuz I refuse to," and was declared unavailable. He did not specifically assert a Fifth Amendment privilege. After consulting with all counsel, the court advised the jury that Delaloza had been convicted by another jury of the double murder that had occurred in October of 1997 (counts 4 and 5, which were charged against Penunuri only) in which he participated at least as an accomplice, that Delalozas case was now pending on appeal, and that Delalozas tape-recorded statement would be played to the jury in the present case.
Although defense counsel for Bermudez had expressed "concern" prior to the trial courts statement to the jury that the jurors might think Delaloza had been threatened, there was no contemporaneous objection on that ground. The claim was thus waived. (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 430; People v. Sanders, supra, 11 Cal.4th at p. 531.) In any event, the notion that the jury might draw the inaccurate conclusion that Delaloza had refused to testify because he had been intimidated by the defendants is sheer speculation, not reasonably supported by anything the court stated, and countered by the courts explanation that Delalozas case was pending on appeal.
II. The testimony of accomplice Marin regarding the conspiracy and the murder of Castillo was sufficiently corroborated.
"A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . ." (Pen. Code, § 1111.) "To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged." (People v. Bunyard (1988) 45 Cal.3d 1189, 1206, 249 Cal. Rptr. 71, 756 P.2d 795.) Evidence of corroboration is sufficient if it connects the defendant with the crime, even though it is slight and would be entitled to little consideration when standing by itself. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128, 885 P.2d 1.) The corroboration must come from a source other than the accomplice (People v. Fauber (1992) 2 Cal.4th 792, 834, 831 P.2d 249), but the corroborating evidence may even be entirely circumstantial in nature. (People v. Rodrigues, supra, at p. 1128.)
Bermudez contends that Marins testimony as to where he and his codefendants were on the evening of January 14, 1998, was not corroborated. To the contrary, there was more than sufficient evidence to corroborate Marins testimony that Bermudez conspired to murder Castillo and was involved in his murder.
Marins testimony as to the telephone calls prior to Castillos murder and the events surrounding the murder were corroborated by the testimony of McGuirk and Miranda. Marins testimony that Penunuri called from jail and talked to Bermudez and Castro about the need to prevent Castillo from testifying against him was corroborated by the testimony from McGuirk and Miranda. All three testified that Penunuri often called the apartment and spoke to Bermudez and Castro. McGuirk and Miranda also recalled telephone calls from Penunuri in which Castillos name was mentioned. Telephone records further corroborated Marins testimony that Penunuri often called the apartment and talked to various gang members present at the time. Indeed, Marins telephone records revealed a call from Penunuri on January 5, 1998, at 7:28 p.m., and Bermudezs school records established that he was not in school that evening.
Moreover, Marins testimony concerning the events immediately preceding Castillos murder is also corroborated by testimony from McGuirk and Miranda. Marin testified that he left with Bermudez, Castro and Tapia between 9:00 and 11:00 p.m. to pick up Castillo. McGuirk also testified that Marin and the other three left in her car that evening, though she estimated the time at somewhat later. Similarly, Miranda testified that Marin, Bermudez, Castro and Tapia left in Marins car at approximately 10:30 p.m. And Castros cellular telephone records and Castillos pager records corroborated Marins testimony that Castro had Tapia call Castillo and tell him that they wanted to meet up with him.
Accordingly, viewing the evidence of corroboration in the light most favorable to the verdict (People v. Garrison (1989) 47 Cal.3d 746, 774, 254 Cal. Rptr. 257, 765 P.2d 419), the testimony of accomplice Marin was sufficiently corroborated.
III. There was no error in denying an instruction on third party culpability or in giving CALJIC No. 17.41.1.
The proposed jury instruction on third party culpability.
Bermudez contends that the trial court erred in denying the following requested jury instruction: "You have heard evidence that a person other than the defendant may have committed the offense with which the defendant is charged. The defendant is not required to prove the other persons guilt. The defendant is entitled to an acquittal if the evidence raises a reasonable doubt in your minds as to the defendants guilt. Such evidence may by itself raise a reasonable doubt as to the defendants guilt. However, its weight and significance, if any, are matters for your determination. If after consideration of this evidence, you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of the doubt and find him not guilty." The trial court refused to give the instruction, finding it was not required.
"[A] defendant is entitled upon request [to] instructions [that] relate particular facts to a legal issue in the case or pinpoint the crux of a defendants case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory . . . ." (People v. Saille (1991) 54 Cal.3d 1103, 1119, 820 P.2d 588.) Even if evidence supports the defense theory articulated in the proposed instruction, the trial court may refuse to give the instruction that pinpoints the theory of the defense if the proposed instruction highlights specific evidence as such." (People v. Wright (1988) 45 Cal.3d 1126, 1137, 248 Cal. Rptr. 600, 755 P.2d 1049; see People v. Saille, supra, at p. 1119.) "Because the latter type of instruction invites the jury to draw inferences favorable to one of the parties from specified items of evidence, it is considered argumentative and therefore should not be given. [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 886, 978 P.2d 15.)
In the present case, even assuming the proposed instructions reference to "evidence" the jury purportedly "heard" was not improperly argumentative, there was no substantial evidence of third party culpability. Marin was at the murder scene by his own admission, drove the car, took gloves with him, and handled the gun before the murder. Marin testified that Tapia gave the gun to Castro and Castro shot Castillo, although the jury made no finding that Castro was the shooter (i.e., overt act number 9). Bermudez further notes that according to the shoe print evidence, only the victim could be placed on the hillside, as none of the shoe prints matched any of the defendants shoes. Bermudez thus urges that Marin could not be eliminated as the shooter, since he had disposed of his shoes by the time of the investigation. And Bermudez argues that the "inference" from some of the evidence regarding the timing of the threatening pages was that the source of the threats was Marins wife, and that the actions and threats attributed to Bermudez and Castro "were actually reflective of Marins own conduct."
The above facts and inferences relied upon by Bermudez, however, do not provide adequate evidentiary support to justify the first part of the requested instruction that "You have heard evidence that a person other than the defendant may have committed the offense with which the defendant is charged." There was no direct evidence that anyone else committed the crime. Rather, there were only inferences, speculation and argument to that effect. Argument is not evidence (see Evid. Code, § 140), and a defendants "sheer speculation" (People v. Lewis (1990) 50 Cal.3d 262, 277, 266 Cal. Rptr. 834, 786 P.2d 892) or "conjecture" (People v. Day (1981) 117 Cal. App. 3d 932, 936, 173 Cal. Rptr. 9) regarding a different factual scenario is not substantial evidence sufficient to warrant a jury instruction. The trial court thus properly denied the instruction, as there was no substantial "evidence supportive of the theory." (People v. Saille, supra, 54 Cal.3d at p. 1119.)
In any event, as the Supreme Court in People v. Earp, supra, 20 Cal.4th 826, concluded in assessing a similar third-party culpability instruction, "Even assuming that this proposed instruction accurately pinpointed the defense theory, defendant suffered no prejudice from the trial courts refusal to give it." (Id. at p. 887.) In Earp, the Supreme Court held that the trial courts refusal to give the instruction did not warrant a reversal because the jury was fully instructed on the requirement of proof beyond a reasonable doubt and was fully informed of the defense theory through the arguments of counsel. It was thus "not reasonably probable that had the jury been given defendants proposed . . . instruction, it would have come to any different conclusion." (Ibid.)
Here, even without Bermudezs proposed instruction, the jury was well aware of Bermudezs theory that Marin had committed the murder and of Bermudezs alibi defense, as defense counsel had strenuously argued both in his closing argument. The jurors were instructed on Bermudezs alibi defense and admonished (CALJIC No. 4.50) that if they had a reasonable doubt he was present at the time of the crime, they must find him not guilty. And the trial court instructed (CALJIC No. 2.90) as to the requirement of proof beyond a reasonable doubt.
Accordingly, even assuming arguendo error in refusing the requested instruction, under the circumstances, as in People v. Earp, supra, 20 Cal.4th at page 887, there was no reasonable probability the verdict would have been different had the proposed instruction been given, and therefore any error was harmless.
No error in instructing the jury pursuant to CALJIC No. 17.41.1
Castros complaints about CALJIC No. 17.41.1 have been addressed by the Supreme Court in People v. Engelman (2002) 28 Cal.4th 436, which held that this instruction does not infringe upon a defendants federal or state constitutional right to trial by jury or the state constitutional right to a unanimous verdict.
Moreover, in the present case, there were no problems arguably attributable to CALJIC No. 17.41.1. For example, there was no jury deadlock, no coercion of holdout jurors, and no report to the court of any juror refusing to follow the law. Thus, even if it were error, which it was not, this unobjected to instruction would not warrant a reversal of the judgment under any standard of harmless error. (See People v. Molina (2000) 82 Cal.App.4th 1329, 1335.)
Pursuant to CALJIC No. 17.41.1, the jury was instructed as follows: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment in this phase of the case, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
IV. The trial courts denial of the motion to sever the trials was not an abuse of discretion or a denial of due process.
Bermudez and Castro claim the trial court erred in denying their motions for severance, and that they were denied a fair trial by the failure to sever the trial of counts 6 and 7, involving their conspiracy to murder and the murder of Castillo, from the trial of the offenses in counts 1 through 5, relating to Penunuri and the robbery in the Ralphs parking lot and the murders of Molina and Murillo. Bermudez also contends he was denied his rights to confront witnesses and to a fair trial by the joint trial with codefendant Tapia, who presented an antagonistic and irreconcilable defense. Castro joins in this contention to the extent is accrues to his benefit. We find the trial court properly exercised its broad discretion in denying the motions to sever, and that Bermudez and Castro received a fair trial.
Bermudez raised the issue of severance of counts 1 through 5, as well as severance of the trial from defendants and appellant Castro. Castro filed a written motion, seeking severance regarding the trial of counts 1 through 5, counts charged only against Penunuri. Castros claim that his trial should have been severed from Tapias trial is thus waived on appeal. (People v. Mitcham (1992) 1 Cal.4th 1027, 1048, 824 P.2d 1277.) In any event, as discussed hereinafter, the contention is without merit as to both Bermudez and Castro.
A. General principles as to severance.
Penal Code section 1098 establishes the general principle of preference that codefendants charged with an offense be jointly tried unless, in it discretion, the trial court orders separate trials. (People v. Jackson (1996) 13 Cal.4th 1164, 1207, 920 P.2d 1254.) The question of whether a jointly charged codefendant is entitled to a separate trial is therefore addressed to the sound discretion of the trial court. (People v. Turner (1984) 37 Cal.3d 302, 312, 208 Cal. Rptr. 196, 690 P.2d 669.) The "classic" case for a joint trial is one where the defendants are charged with common crimes involving common events and victims. (People v. Keenan (1988) 46 Cal.3d 478, 499-500, 250 Cal. Rptr. 550, 758 P.2d 1081.)
Whether the denial of a motion to sever is an abuse of discretion must be assessed based on the facts appearing at the time of the motion to sever, and not based on what subsequently develops during trial. What transpires during trial is relevant in assessing prejudice from any abuse of discretion, but not in determining if there was error in the first place. (People v. Turner, supra , 37 Cal.3d at p. 312.) Generally, "a trial court must order a joint trial as the rule, and may order separate trials only as an exception." (People v. Alvarez (1996) 14 Cal.4th 155, 190, 926 P.2d 365.) Joinder conserves judicial resources and public funds by requiring only one courtroom and one jury and reducing delay in resolving criminal charges at trial and in reviewing cases on appeal. (People v. Bean (1988) 46 Cal.3d 919, 939-940, 251 Cal. Rptr. 467, 760 P.2d 996.)
The California Supreme Court has set forth and repeatedly emphasized several circumstances under which a trial court should separate the trials of codefendants. (See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 167, 825 P.2d 781; People v. Turner, supra, 37 Cal.3d at p. 312; People v. Massie (1967) 66 Cal.2d 899, 917, 59 Cal. Rptr. 733, 428 P.2d 869.) The trial court should separate the trial of a codefendant "in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." (People v. Turner, supra, at p. 312; see also People v. Box (2000) 23 Cal.4th 1153, 1195.)
On appeal, a defendant bears the burden of proving the trial court abused its discretion when denying a severance motion. A defendant is entitled to relief only upon "a clear showing of prejudice" (People v. Price (1991) 1 Cal.4th 324, 388, 821 P.2d 610), which is based upon facts known at the time the motion for severance was made. (People v. Balderas (1985) 41 Cal.3d 144, 171, 222 Cal. Rptr. 184, 711 P.2d 480.) In considering a defendants motion to sever, a trial court abuses its broad discretion when its ruling "falls outside the bounds of reason." (People v. Osband (1996) 13 Cal.4th 622, 666, 919 P.2d 640.) Regarding the analysis of a constitutional claim, if consolidation results in "a gross unfairness" a defendant may be deprived "of a fair trial or due process of law." (People v. Turner, supra, 37 Cal.3d at 313; see also People v. Bean, supra, 46 Cal.3d at p. 940.)
B. The trial court did not err in refusing to sever Bermudezs trial from the trial of codefendant Tapia, who presented a conflicting defense.
Contrary to Bermudezs contention, he was not denied his rights to confrontation and a fair trial by the joint trial with codefendant Tapia, who presented an antagonistic and irreconcilable defense. As urged by Bermudez, Tapias defense was in conflict with Bermudezs defense, since Tapia could not have been coerced into the murder by Bermudez if Bermudez was not present at the scene of the crime and did not threaten him. According to Bermudez, the jury could have acquitted Tapia under Bermudezs alibi defense, but the jury could not have acquitted Bermudez under Tapias defense that Bermudez forced him to participate in the murder. Bermudez also urges that in argument before the jury the prosecutor and Tapias defense counsel both vouched for the veracity of Marins testimony, and concludes that the jury had to find for either Tapia or Bermudez. Bermudez thus argues that substantial prejudice ensued that denied Bermudez his right to due process and a fair trial.
We conclude otherwise. Even if defenses are characterized as "totally antagonistic," it does not necessarily mean that the denial of a motion to sever results in gross unfairness. (People v. Greenberger (1997) 58 Cal.App.4th 298, 363.) " Antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other. [Citation.] Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. [Citations.]" (People v. Hardy, supra , 2 Cal.4th at p. 168.)
In the present case, the conflict did not result in the jurys conclusion that both were guilty, as Tapia was acquitted. And Tapia did not present a defense that Bermudez was the only guilty party. Tapias defense was that he had been coerced into participating in the conspiracy by Bermudez and Castro. And although Tapias counsel acknowledged his clients participation with Bermudez and Castro in some of the charged overt acts, the jury was free to disregard this proffered defense theory and accept Bermudezs evidence (from his girlfriend and school records) and find that Bermudez was neither present at critical points in time at Marins apartment nor at the scene of Castillos murder. Thus, the jurys task was to assess credibility and assign responsibility by evaluating the testimony of Marin, Bermudezs girlfriend, and documentary evidence. Bermudezs conviction was the product of the intrinsic implausibility of his witnesss account of the events, the inconclusiveness of the school records, and the strength of the prosecutions case, not the joint trial.
Moreover, this was not a case where only one of several defendants could be found guilty. (See People v. Cummings (1993) 4 Cal.4th 1233, 1287, 850 P.2d 1.) The prosecutions theory was that all defendants, including Bermudez and Castro, participated in and were equally guilty of the offenses charged in counts 6 and 7. The record establishes that the prosecutor blamed all four defendants in like measure, and sought to obtain verdicts as to each of them. (See Zafiro v. United States (1993) 506 U.S. 534, 540, 122 L. Ed. 2d 317, 113 S. Ct. 933; People v. Roberts (1992) 2 Cal.4th 271, 328, 826 P.2d 274.)
It is further significant that the potential prejudice of the conflicting defense theory espoused by Tapias defense counsel was effectively ameliorated by the trial courts instructions to the jury, which we must presume the jury followed, to give separate consideration to the evidence presented against each individual defendant, and that argument of counsel was not evidence. (See Zafiro v. United States, supra, 506 U.S. at p. 541.) We thus conclude that under the circumstances here the argument by Tapias defense counsel did not so infect the proceedings with unfairness as to result in a denial of due process or miscarriage of justice as to Bermudez. (See People v. Box, supra, 23 Cal.4th at pp. 1196-1197; People v. Turner, supra, 37 Cal.3d at p. 313.)
Finally, the joint trial also not only served the interest of judicial economy (Pen. Code, § 1098), but avoided the possibility of inconsistent verdicts that may have resulted from separate trials. Presenting conflicting versions of the incident to a single jury benefited the judicial process by allowing all of the evidence to be evaluated in one proceeding during which the truth was determined. In essence, Bermudezs complaint is that a single trial permitted "too much rather than too little truth [to] emerge in the process," but such a result "serves the public interest in accurate ascertainment of guilt or innocence." (People v. Wallace (1992) 9 Cal.App.4th 1515, 1520, fn. 4.)
Accordingly, notwithstanding inconsistent defenses, the trial court did not err in refusing to sever the trial of Bermudez from that of Tapia. (See People v. Jackson, supra, 13 Cal.4th at pp. 1208-1209.)
C. The trial court did not err in denying appellants motions to sever their trial as to counts 1 through 5.
Bermudez and Castro contend that the trial court abused its discretion and denied them a fair trial and due process in refusing to sever the offenses in counts 1 through 5, charged against Penunuri. According to Bermudez and Castro, the "only common link" between the offenses charged in courts 1 trough 5 and the offenses they were charged with in counts 6 and 7 was Penunuri. They assert the trial court should have granted their severance motions because certain evidence was not cross-admissible, that more serious charges inflamed the jury against them, that a weak case (their case) was joined with a strong case (the case against Penunuri), and that one of the charges against Penunuri turned the matter into a capital case.
In denying the motions to sever, the trial court remarked before the commencement of trial: "The primary thrust of the argument seems to be that they will be in an awkward position because of the fact that they are having to sit through a trial of alleged murders that occurred by Mr. Penunuri and which theres no suggestion that any of the other defendants had any part, referring to the Whittier murders. And the same thing with the Whittier robberies . . . . But because of the fact that there is a threat thats traced from the Whittier robberies on through the Whittier murders on through the Castillo murder, . . . there obviously is a pattern where the matter requires that it all be - in an orderly procedure all be heard in one trial."
Cross-admissibility
of evidence.
The evidence introduced at the joint trial with Penunuri would have been largely the same evidence introduced at separate trials. Notwithstanding the fact the Bermudez and Castro were not charged in counts 1 through 6, much of the evidence pertinent to those counts was relevant to their motive in conspiring to murder and murdering Castillo, as charged in counts 6 and 7. Castillo was a witness to the crimes charged in counts 1 through 5 against Penunuri, and the conspiracy to murder Castillo and his subsequent murder, as charged in counts 6 and 7, arose from Penunuris fear that Castillo was going to testify against him.
Accordingly, evidence regarding the crimes charged in counts 1 through 5 would have been introduced at a separate trial to show motive. Ordering separate trials would have subjected multiple witnesses to testify multiple times to the same events. Such cross-admissibility of evidence ordinarily dispels any inference of prejudice and is often a sufficient basis upon which to deny severance. (See People v. Bradford (1997) 15 Cal.4th 1229, 1316-1317, 939 P.2d 259.)
Bermudez, however, complains that the admission of Delalozas taped statement at this joint trial violated his right to confront witnesses. As previously noted, the trial court found Delaloza was an unavailable witness and admitted over objection the taped statement as one against Delalozas penal interest. Delalozas car was the getaway vehicle from the crime scenes in counts 1 through 5, and he was the getaway driver at the scene involving the offenses charged in counts 3 through 5. In Delalozas statement, he indicated that he had driven Penunuri to the location where the assault with a firearm occurred (count 3) and to the location of the murders (counts 4 and 5). Delaloza also stated that he and Penunuri were fellow gang members and that a third person (respondent argues it was actually Castillo) had been with Delaloza and Penunuri during the early part of the night of the offenses in counts 1 through 5. Delaloza further indicated that Penunuri had been the shooter.
Bermudez acknowledges that Delalozas statement "did not directly implicate" him, but nonetheless argues that its admission prejudiced him because it "bolstered the prosecutions case regarding the motive to kill Jaime Castillo." But because Bermudez was not charged with any of the offenses charged in counts 1 through 5, any reference by Delaloza to Penunuris participation in those offenses could not have run afoul of the rule in Bruton v. United States (1968) 391 U.S. 123, 127-128, 20 L. Ed. 2d 476, 88 S. Ct. 1620, that a defendant is deprived of the constitutional right to confrontation when the incriminating statement of a codefendant is introduced at their joint trial, even though a jury is instructed to consider the statement only against the defendant who made it.
Moreover, the statement was properly admitted as a statement against Delalozas penal interest. (Evid. Code, § 1230.) Out-of-court declarations against penal interest may be introduced against the defendant without violating the right to confrontation so long as the statements are trustworthy. (See Lilly v. Virginia (1999) 527 U.S. 116, 135- 139, 144 L. Ed. 2d 117, 119 S. Ct. 1887.) To determine whether a declaration against interest is trustworthy, "The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry." (People v. Greenberger, supra , 58 Cal.App.4th at p. 334.)
In the present case, Delaloza was unavailable, as he was appealing his conviction, and his statements were against his penal interest as they "so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) Specifically, Delalozas statements revealed personal knowledge of the events and implicated himself as the getaway driver, thus bolstering the trustworthiness of the statements. And the jury was instructed that since Delalozas statement was that of an accomplice in counts 4 and 5, which were only charged against Penunuri, the statement had to be corroborated by other evidence, which it was. Thus, the trial court properly admitted Delalozas taped statement.
Furthermore, Bermudez and Castro complain that testimony from the gang expert would not have been cross-admissible in separate trials. However, it is well settled that evidence of gang membership is admissible when it is relevant to a material issue such as motive. (People v. Tuilaepa (1992) 4 Cal.4th 569, 588, 842 P.2d 1142.) If there were separate trials, evidence of appellants gang membership would have been properly admitted, as it provided evidence of motive and intent to conspire to murder and to commit the murder of Castillo, as charged in counts 6 and 7. As the trial court aptly remarked in denying a pretrial motion to exclude all evidence of gang membership and activities, it would be impossible to preclude gang evidence "because of the fact that gang membership runs throughout the case from the Whittier murders [counts 4 and 5] onto the other murder [counts 6 and 7]. The whole basis of it as far as the prosecutions theory is concerned is necessarily based on gang membership, gang loyalty and so forth."
The only objectionable part of the gang experts testimony concerned the taxes paid to the Mexican Mafia. The trial court properly struck that testimony and offered to instruct the jury that there was no evidence here of any control or participation in Mafia activities. Thereafter, the trial court emphatically admonished the jury to disregard such stricken testimony and to treat it as though it did not exist. And the jury was later instructed that evidence that a defendant was a member of the Cole Street gang was not sufficient by itself to prove that a defendant was a member of the alleged conspiracy to murder Castillo, as charged in count 6.
Accordingly, gang evidence was properly admitted (and restricted where appropriate), since it had the valid purpose of establishing motive and intent as to the murder of Castillo; i.e., preventing Castillos testimony at Penunuris trial for the double homicide. It is also apparent that Bermudez and Castro were convicted not because the jury learned they were members of the same gang as Penunuri, but rather because the substantial evidence against them was compelling.
Moreover, there is no merit to Bermudezs claim that he was prejudiced by the joinder of his trial with counts 4 and 5 because the jury was allowed to infer that evidence of Penunuris attempt to fabricate an alibi defense made it likely that Bermudezs alibi was also fabricated. Over the objection of Bermudez and Penunuri, the trial court admitted evidence of taped conversations between Penunuri and his mother, Maria Penunuri, while he was in county jail in July and August of 1998. One of the taped conversations reflected discussions about the possibility of having a woman testify on Penunuris behalf that she had been with him on the night of the double murder. As the prosecutor argued, the tape was relevant to Marias bias and Penunuris consciousness of guilt.
Significantly, the trial court had redacted from the tapes any mention of "Art," which was presumably a reference to Bermudez by his first name. When Maria testified, she acknowledged that Penunuri stated during the taped conversations that he, Castillo and Delaloza had been at the Ralphs parking lot, and that another conversation involved an attempt to fabricate an alibi for Penunuri. But the tapes, as played for the jury, made no mention of Bermudez, and neither the prosecutor, nor Maria in her responses, referred to Bermudez.
Therefore, it is apparent that Bermudez was found guilty as to counts 6 and 7 not because of Penunuris attempt to fabricate an alibi, but rather because of the strength of the evidence against him and the flawed nature of his own alibi claim, which was apparently deemed not credible.
Finally, Bermudez and Castro challenge the joinder of counts 1 through 5 because the double murder counts (counts 4 and 5) would inflame the jury, a weak case was joined to a strong case, and joinder made the case a capital case. The suggestion that the jury was unduly prejudiced by the facts of the heinous and callous murder of two boys, ignores that the murder in which Bermudez and Castro participated was just as heinous and callous. They with several others took Castillo to the location of the murder under the pretext of buying drugs and partying with him, and then Castro shot Castillo in the back of the head at point-blank range. Castro rather cold-bloodedly expressed satisfaction in accomplishing this deed and then cleaned his gun and hid the evidence upon returning to Marins apartment.
Also, this was a capital case not just as to Penunuri. The murder of Castillo as a witness made this a capital case as to Castro, with the prosecution seeking the death penalty against him. (Pen. Code, § 190.2, subd. (a)(10).) So, the case did not become a capital case as a result of joinder with the counts involving Penunuri only; it was a capital case as to Castro because of his own criminal conduct. And the jury did not convict Bermudez and Castro as to counts 6 and 7 because counts 1 through 5 were not severed from their trial. Rather, they were convicted because the jury found beyond a reasonable doubt that they conspired to murder and did murder Castillo, who was a witness to the crimes charged in counts 1 through 5.
Accordingly, the trial court properly denied the motions for severance.
Nor is there any basis for the claim by Bermudez and Castro of cumulative error, as there is little error to accumulate. (See People v. Bradford, supra, 14 Cal.4th at p. 1057.)
V. Castro correctly contends that the 25-year enhancement for the personal discharge of a firearm should be stricken, since apparently because of a defect in the verdict form the jury did not find that he personally discharged the firearm.
Castro contends, and respondent properly concedes, that the 25-year sentence enhancement imposed pursuant to Penal Code section 12022.53 , subdivision (d), as to count 7, must be stricken because the jury did not find that he personally discharged the firearm. The 25-year enhancement is "in addition and consecutive to the punishment prescribed for [the particular] felony" (Pen. Code, § 12022.53, subd. (d), but the statute "requires that the defendant intentionally and personally discharged a firearm." (People v. Bland (2002) 28 Cal.4th 313, 336.)
The statute also requires that "For the penalties in this section to apply, the existence of any fact required . . . shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact." (Pen. Code, § 12022.53, subd. (j), italics added; see also Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 ["Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt"].)
In the present case, the indictment alleged, in pertinent part, that Castro was "a principal in the foregoing commission of the foregoing offense, and, in the commission of the offense, at least one principal intentionally and personally discharged and personally used a firearm, a handgun, and proximately caused great bodily injury . . . to a person other than an accomplice, Jaime Castillo, within the meaning of Section 12022.53 (d) of the Penal Code." The pertinent portion of the verdict form paralleled that language in the indictment. However, neither the language in the indictment nor the verdict form required that the jury find that Castro had personally discharged the gun, and such finding was required under the Penal Code section 12022.53, subdivision (d) enhancement.
The only exception to the requirement of personal discharge of a firearm is Penal Code section 12022.53, subdivision (e), which permits imposition of the enhancement on any principal, whether or not the principal has personally discharged the firearm, but only if a violation of Penal Code section 186.22 (pertaining to a criminal street gang) has been pled and proven as well, which is not the case here.
Moreover, although the trial court initially instructed the jury that it was required to find whether Castro had intentionally and personally discharged a firearm, it thereafter responded to jury questions in a manner that negated the original instruction. During deliberations, the jury submitted two notes to the court remarking on the discrepancy between the instruction, which asked the jury to "determine whether [Castro] intentionally and personally discharged a firearm," and the verdict form, which provided only for a finding that Castro was a principal and that at least one principal intentionally and personally discharged a firearm. The second note from the jury specifically observed that the verdict form was worded differently than the instructions, and then asked if "we [must] answer per the verdict sheet the way it was written." The trial court replied, "yes" to that question and explained, "you answer per the verdict sheet, because thats the way the indictment was returned and thats what were bound by."
The court thus, in effect, told the jury that it did not have to find Castro personally discharged the gun to find the enhancement true. And we must assume the jury followed the courts last directive (People v. Mooc (2001) 26 Cal.4th 1216, 1234), and resolved the discrepancy between the original instruction requiring personal use and the verdict form, which did not require personal use, by following the verdict form.
Accordingly, although there was substantial evidence that Castro was indeed the shooter, the jury never returned the statutorily required finding (Pen. Code, § 12022.53, subd. (j)) that Castro intentionally and personally discharged the firearm. The jurys finding that Castro was a principal in the commission of the murder of Castillo and that "at least one principal intentionally and personally discharged a firearm" thus cannot sustain the charged enhancement that requires a specific finding of Castros personal discharge of a firearm. The Penal Code section 12022.53, subdivision (d) enhancement must be stricken.
It is thus unnecessary to address Castros alternative contention that the enhancement under Penal Code section 12022.53, subdivision (d) should be stricken because the version of the statute in existence at the time of the offense did not apply to the offense of murder, an argument found without merit in People v. Valencia (2000) 82 Cal.App.4th 139.
DISPOSITION
The judgment is as to Bermudez is affirmed. The judgment as to Castro is modified by striking the 25-year firearm use enhancement (Pen. Code, § 12022.53, subd. (d)), and is in all other respects affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.