Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FBA008115. Miriam Ivy Morton, Judge.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant Marcus Clark appeals from a judgment entered following a jury trial in which he was found guilty as charged of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), attempted carjacking (§§ 664, 215, subd. (a); count 3), and being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 4). The jury also found various firearm enhancement allegations true in counts 1 through 3 and that defendant personally inflicted great bodily injury in counts 1 through 3. Defendant admitted one prior serious felony conviction, one prior strike conviction, and two prison priors. Defendant was sentenced to 49 years to life, consisting of a 24-year determinate term plus 25 years to life, and appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
At trial, the prosecution sought to prove that around 3:00 a.m. on August 15, 2004, defendant shot John Benner (John) in the back as defendant and Gregory Webster were attempting to take a car from the driveway of John’s house. The primary issue at trial was defendant’s identification as the shooter. The trial was conducted in August and September 2008, four years after the shooting.
Webster and three other potential accomplices, Holli Russell, Martin Marquez, Jr., and Barbara Bray, testified against defendant at trial. The evidence showed that Bray drove Webster and the shooter to John’s house and witnessed the shooting. Earlier that evening, Russell and Marquez hired Webster to take the car and saw the shooter in Bray’s apartment before she took the shooter and Webster to John’s house. None of these potential accomplices identified defendant at trial as the shooter, but Bray’s and Webster’s pretrial photographic lineup identifications of defendant were admitted into evidence. The jury also heard that Russell identified photographs of defendant and one other individual as resembling the man who was with Webster on the night of the shooting.
John and his wife, Denise Benner (Denise), also testified against defendant and identified him at trial as the shooter. John also identified defendant prior to trial, at an October 12, 2004, parole revocation hearing for defendant, after John saw defendant through a two-way mirror and heard his voice. John was unable, however, to identify defendant from a photographic lineup he was shown four days after the shooting. The record indicates Denise also identified defendant at the October 12 hearing, but she was unable to identify defendant from a photographic lineup she was shown on October 26, 2004, two weeks after the hearing. At trial, she testified she recognized defendant mostly from his voice and his eyes.
On this appeal, defendant contends the trial court prejudicially erred in failing to instruct the jury that accomplice statements or testimony must be corroborated and viewed with caution, and that corroborating evidence must be (1) independent of the accomplice’s statements and testimony and (2) connect the defendant to the crimes. (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 334.) He argues these omissions require reversal because (1) the jury could have reasonably inferred that Russell, Marquez, Bray, and Webster were, in fact, accomplices to one or more of the charged crimes, and (2) there is a reasonable probability the instructional errors prevented the jury from properly determining whether John’s and Denise’s nonaccomplice identifications were sufficient to corroborate the accomplices’ pretrial identifications of defendant as the shooter.
In addition, defendant claims the Benners’ identifications of defendant as the shooter are insufficient, as a matter of law, to corroborate the accomplices’ identifications because the Benners’ identifications were the product of an unduly suggestive identification procedure—namely, the October 12, 2004, parole revocation hearing—and also lacked sufficient indicia of reliability. Alternatively, defendant claims his trial counsel rendered ineffective assistance in failing to preserve his claims of error in the trial court.
We affirm. We conclude that, even if the jury could have reasonably inferred that Russell, Marquez, Bray, and Webster were, in fact, accomplices to one or more of the charged crimes, the Benners’ in-court and pretrial identifications of defendant as the shooter were sufficient to corroborate the accomplices’ pretrial statements and testimony, including Bray’s and Webster’s pretrial identifications of defendant as the shooter. We further conclude that, even if the Benners’ identifications of defendant were the product of an unduly suggestive pretrial identification procedure, they were nevertheless reliable under the totality of the circumstances. For these reasons, the judgment must be affirmed.
II. THE EVIDENCE PRESENTED AT TRIAL
A. Prosecution Evidence
As indicated, the primary issue at trial was whether defendant was the individual who shot John. The prosecution sought to show that, around 3:00 a.m. on August 15, 2004, defendant shot John in the back as defendant and Webster were attempting to take a blue Ford Thunderbird from the driveway outside the Benners’ house. As a result of the shooting, John is permanently paralyzed from the waist down and is confined to a wheelchair. A.22-caliber shell casing was recovered from the scene of the shooting.
John and Denise testified they purchased the blue Ford Thunderbird from Russell in exchange for posting $200 for her bail after she was arrested for shoplifting. According to Russell, the Benners were holding her car as collateral for the $200 she owed them for posting her bail. As of August 15, 2004, the car was still registered to Russell. Russell knew the Benners because she and their daughter had been roommates.
Russell testified that, following her release from jail, she and her boyfriend, Martin Marquez, Jr., wanted to get her car back because it was their only means of transportation. Russell contacted the Benners but they refused to return the car to her. John changed the ignition in the car after Russell’s mother warned him that Russell had an extra set of keys and intended to take the car following her release from jail.
Russell and Marquez hired Webster to take the car from the Benners, offering him money, drugs, and a girl for the night if he got the car back. Webster wanted proof that Russell owned the car, so Russell and Marquez showed him the car registration. They also gave Webster a spare set of car keys. Webster told Marquez he was bringing “a friend” with him to get the car.
Later that evening, Russell and Marquez went to the apartment of their friend, Barbara Bray. According to Bray, Webster and another man walked into her apartment after Russell and Marquez came in. Russell and Marquez asked Bray to drive Webster and the other man to the Benners’ house in her red pickup truck, and Bray agreed.
Bray testified that, before she took Webster and the other man to the Benners’ house, she drove the other man to an apartment complex, where he obtained what she believed was a gun, and put it in the back of her truck. Bray asked the man whether he had put a gun in the back of her truck, and the man responded he did not have any bullets. Bray said she “was asking him to put the bullets in the glove compartment if he had a gun.”
Bray then returned to her apartment, picked up Webster, and drove Webster and the other man to the Benners’ house in her truck. While Webster was attempting to start the car, the other man got out of the truck and John came outside his house. Bray heard a shot and began yelling something like, “‘Get down. He’s got a gun.’” Bray told the shooter to get back into her truck because she thought he was going to continue shooting John or possibly her. She then drove the shooter and Webster back to her apartment.
Neither Russell nor Marquez identified defendant in court as the man who was with Webster on the night of the shooting. However, Russell was shown a photographic lineup shortly after the shooting and identified a photograph of defendant and the photograph of one other man as resembling the man who was with Webster on the night of the shooting. At trial, Russell described the man as “shorter” and “stockier” than Webster, with hair braids and “thick lips.”
Bray also did not identify defendant in court as the shooter or the man who was with Webster. However, Bray identified defendant as the shooter from a photographic lineup shortly after the shooting, and at trial Bray said she still believed the man in the photograph she identified was the shooter. Like Russell, Bray also described the shooter in court as “shorter” and “stockier” than Webster.
Russell and Marquez were still in Bray’s apartment after Bray, Webster, and the other man returned to the apartment following the shooting. At that time, Russell described Bray as “a little hysterical” and that Bray told Russell, Marquez, Webster, and the other man to “get out” of her apartment because the other man had shot someone. Bray testified she told Russell to get “the men” out of her apartment because the “shorter, stockier” one had shot someone.
Marquez recalled Bray saying that either Webster or the other man had shot someone, but he did not recall Bray saying which man had shot someone. Marquez also saw that either Webster or the other man had a gun, but he did not recall which man had the gun. Russell denied telling either Webster or the other man to bring a gun to the Benners’ house, asking them to confront John, or shoot him.
Bray also testified that the shooter was in the hallway of her apartment following the shooting, “cleaning the gun and getting the bullets out of it.” The shooter then placed the gun in a locker. After Russell, Marquez, Webster, and the other men left her apartment, Bray called the police, told them where the gun was, and later found two bullets on the hallway floor. The police recovered the gun from the hallway locker after Bray led them to the gun. Bray denied knowing that the shooter or Webster intended to shoot anyone when she drove them to the Benners’ house.
The jury heard that Russell pled guilty to grand theft auto for her involvement in the present case and was sentenced to six months in prison. Russell was not charged with attempted murder, attempted carjacking, or any other violent crime as a result of her involvement in the present case. Marquez testified he “settled for attempted grand theft auto” based on his involvement in the present case and served an undisclosed amount of time in prison. The jury did not hear, nor does the record indicate, whether Webster or Bray were charged with any offenses based on their involvement in the present case.
At the time of trial, Webster was in custody in Las Vegas on a domestic violence offense. He testified that, in 2004, Russell and Marquez promised him some money if he could get their car back. A “heavyset, white lady” took him to get the car in a red truck. Before that, he went to the woman’s apartment and Russell, Marquez, and another man were there. After the woman and the other man left the apartment “to go somewhere” and returned, he went with the two of them to get the car. As he was trying to start the car with a key, he heard “two pops.” He turned and saw the other man standing in the back of the red truck, pointing a gun. He took the gun from the man and threw it in the back of the truck. At the woman’s apartment after the shooting, he threw the gun by a garbage can. After the shooting, when shown a photographic lineup that included defendant’s photograph, Webster identified defendant as the shooter.
On the night of the shooting, the Benners were awakened by a noise outside their home. John looked outside, saw a man in the blue Ford Thunderbird, and ran outside to confront him. When he got outside he heard someone say, “‘Where’s the key, Mother Fucker?’” He looked at that person and identified him in court as defendant. Defendant then pointed a gun at John and shot him in the back as he tried to run back into his house. John fell to the ground and pulled himself to his front door with his hands. Denise opened the door, and John told her to close it because there was a man with a gun outside. Defendant repeated his demand for the keys, and John looked back at him and said: “‘You’re not getting the damned keys.’”
Denise testified she heard a gunshot, then she heard her husband yelling to her that he had been shot and to call 911. She opened the door of her house and saw a Black man pointing a gun at her and demanding the keys to the car. John told her to shut the door, and she did so. Denise woke her 19-year-old son, and she and her son opened the door and pulled John inside. At that point, the same man was still standing outside with the gun demanding the car keys. The man left in a red truck shortly before paramedics arrived.
When asked whether she got “a good look” at the man with the gun, Denise said “[i]t was dark, but, yes, he was standing there. It was a [B]lack man, barely tall, standing there pointing the gun at us still demanding the keys.” Denise then identified that man in court as defendant. On cross-examination, Denise acknowledged that shortly after the shooting she told police she was not “absolutely sure” she could identify the man she saw. She further testified, however, that the man was standing fewer than 10 feet away from her and her front door and there was no question in her mind that defendant was the man she saw that night. She then said she recognized defendant “mostly from his voice” and his eyes.
After the Benners testified, the prosecution presented evidence that, on October 12, 2004, the Benners attended a parole revocation hearing for defendant. Before John saw defendant at the hearing, he was told defendant was suspected of being the person who shot him. John asked a parole agent to let him hear defendant’s voice because he wanted to be certain it was the voice he heard the night he was shot. John and Denise were then allowed to watch and listen to defendant at his parole revocation hearing, through a two-way window, for around 10 to 20 minutes.
John testified that, after he heard defendant’s voice at the October 12 hearing, he was “positive” and “100 percent certain” that defendant was the person who shot him. But, based solely on seeing defendant’s face at the October 12 hearing, John said he was “pretty sure” but not “positive” defendant was the man who shot him. Denise testified that, at the October 12 hearing, she was able to recognize defendant based on his voice and eyes as the man she saw outside her house pointing the gun on the night of the shooting. There is no indication in the record, however, whether Denise identified defendant as the shooter at the parole revocation hearing.
Four days after the shooting, when shown a photographic lineup that included defendant’s photograph, John was unable to identify anyone in the photographic lineup as the shooter. When Denise was shown the same photographic lineup on October 26, 2004, she too was unable to identify anyone from it as the shooter.
B. Defense Evidence
Defendant did not testify and the defense presented no other affirmative evidence.
III. DISCUSSION
A. The Failure to Fully Instruct the Jury on Accomplice Testimony Was Harmless
A trial court has a duty to instruct sua sponte on the principles of law governing accomplice testimony, when there is sufficient evidence that a witness is an accomplice. (People v. Frye (1998) 18 Cal.4th 894, 965-966, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here the trial court gave a modified, partial version of CALCRIM No. 334, which instructed the jury on some but not all of the principles of law governing accomplice testimony.
The given version of CALCRIM No. 334 told the jury it had to determine whether Russell, Marquez, Bray, or Webster were accomplices, and a person is an accomplice if he or she knew the criminal purpose of the perpetrator and intended to and did, in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime. It also told the jury that the burden was on the defendant to prove that a witness was an accomplice, and, “[i]f you decide that a witness was not an accomplice, then supporting evidence is not required and you should evaluate his or her testimony as you would that of any other witness.”
Nevertheless, the failure to instruct on accomplice testimony is deemed harmless when there is sufficient evidence corroborating the accomplice’s testimony. (People v. Frye, supra, 18 Cal.4th at p. 966; People v. Arias (1996) 13 Cal.4th 92, 143.) Corroborating evidence may be slight, entitled to little consideration when standing alone, and need not be sufficient, by itself, to prove the defendant is guilty of the charged crimes. (People v. Fauber (1992) 2 Cal.4th 792, 835; People v. Sully (1991) 53 Cal.3d 1195, 1228.)
Here, there was sufficient evidence of corroboration. Even if, as defendant argues, the jury could have reasonably inferred that Russell, Marquez, Bray, and Webster were accomplices to one or more of the crimes charged against defendant, the Benners’ trial testimony and John’s pretrial identification of defendant as the shooter, or the man they saw pointing the gun, was sufficient to corroborate the accomplices’ testimony, including the pretrial statements of Bray and Webster identifying defendant as the shooter. The Benners’ identifications of defendant also connected defendant to the crimes, simply because they showed he was present at the scene, demanded the car keys, and was the man who shot John.
The Benners’ testimony also corroborated the less definitive pretrial statement of Russell that defendant’s photograph and the photograph of another individual resembled the man who was with Webster on the night of the shooting.
B. The Benners’ Identifications of Defendant as the Shooter Were Reliable Under the Totality of the Circumstances
Defendant further argues that the Benners’ in-court identifications of him as the shooter, and John’s pretrial identification of him as the shooter at the October 12, 2004, parole revocation hearing, do not constitute sufficient evidence of corroboration, as a matter of law, because all of the identifications resulted from an unduly suggestive identification procedure, namely, the Benners’ opportunity to view defendant and hear his voice at the parole revocation hearing. In addition, he argues the Benners’ identifications lacked sufficient indicia of reliability under the totality of the circumstances. We reject this claim.
Defendant emphasizes he is not arguing that the Benners’ in-court and pretrial identifications of him should have been excluded from evidence; instead, he is only arguing that their identifications were insufficient to corroborate the accomplice’s testimony because they were the product of an unduly suggestive identification procedure and lacked sufficient indicia of reliability.
1. Background
The facts and circumstances surrounding the Benners’ identifications of defendant are set forth in detail above. The evidence presented at trial also showed that the Benners were subpoenaed to the October 12, 2004, hearing, and the hearing commenced, but was continued because another witness did not appear. The Benners were upset, fearful, and nervous when they arrived at the hearing. At some point before the hearing, the Benners were told defendant was suspected of being the shooter.
As indicated, John was unable to identify defendant as the shooter from a photographic lineup he was shown only four days after the shooting. The record does not indicate whether Denise was shown a photographic lineup shortly after the shooting or at any point prior to the October 12 hearing, but shortly after the shooting she told police she was not “absolutely sure” she could identify the man she saw. Denise was also unable to identify defendant from a photographic lineup she was shown on October 26, 2004, two weeks after the hearing.
Parole agent Joseph Rodriguez spoke to the Benners shortly after they arrived at the hearing. According to Agent Rodriguez, John was “pretty adamant that he was not 100 percent sure of who had shot him,” and wanted to “look at this person that was the suspect directly in the eyes because he was adamant he did not want to send an innocent person back into prison.”
After talking with Agent Rodriguez, the Benners were allowed to watch and listen to defendant through a two-way mirror for 10 to 20 minutes while Agent Rodriguez went into the hearing room and the hearing commenced. As the Benners watched and listened through the two-way mirror, defendant spoke for a time with the hearing commissioner and an attorney who was also present at the hearing. After the hearing was continued, defendant was escorted out of the hearing room and the Benners came into the room. At that point, the hearing commissioner, addressing the Benners said: “‘That’s probably the best visual you’re going to get.’” In response, John said: “All I remember that night is his voice and his eyes and him saying, ‘Give me the damn keys.’ I would bet my son’s life on it. That’s the guy that shot me. That’s him....”
As discussed, John testified at trial that he went outside to confront the person he saw in the blue Thunderbird. He looked at that person and said: “‘What are you doing in that car? I’m going to kick your ass.’” He then heard someone else say: “‘Where’s the key, Mother Fucker?’” He looked at that person, saw that he was pointing a gun, and turned to run back to his house. After he turned to run back to his house, he heard a shot and fell to the ground. As he crawled toward the front door with his hands, the man with the gun was standing near the gate next to the driveway, still demanding the keys. John looked back at the man and said: “‘You’re not getting the damn keys.’” That was the last John saw of the man who shot him.
John explained that, after he heard defendant’s voice at the October 12 hearing, he was “100 percent certain” that defendant was the person who shot him and he “‘would stake [his] kids’ life on it.’” But, based on seeing defendant’s face at the hearing, John was “pretty sure” but not “positive” defendant was the shooter—not “positive enough” to identify him as the shooter.
Denise explained that her in-court identification of defendant was based “mostly from his voice” and that she also recognized his eyes. She recognized defendant’s voice because it became highly pitched when he became frustrated, both at the time of the shooting and the October 12 hearing. There was no question in her mind that defendant was the man she saw pointing a gun and standing fewer than 10 feet from her and her front door.
2. Analysis
“‘Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.’” (People v. Avila (2009) 46 Cal.4th 680, 698.) In other words, “[t]he issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances.... If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.]” (People v. Gordon (1990) 50 Cal.3d 1223, 1242; People v. Ochoa (1998) 19 Cal.4th 353, 412.) Accordingly, even if an identification procedure is unduly suggestive and unnecessary, the resulting identification(s) may be deemed reliable under the totality of the circumstances. (People v. Cook (2007) 40 Cal.4th 1334, 1354.)
In determining whether identification evidence is reliable under the totality of the circumstances, we look to such factors as “the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” (Manson v. Brathwaite (1977) 432 U.S. 98, 114, citing Neil v. Biggers (1972) 409 U.S. 188, 199-200.) The ultimate question is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification under the totality of the circumstances. (People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Carlos (2006) 138 Cal.App.4th 907, 912; Simmons v. United States (1968) 390 U.S. 377, 384.)
Based on the evidence presented at trial, which we review for substantial evidence (People v. Johnson (1980) 26 Cal.3d 557, 576), we conclude the Benners’ in-court and pretrial identifications of defendant were reliable under the totality of the circumstances. Though it was dark at the time of the shooting, the Benners both got a “good look” at defendant and, moreover, were able to hear his voice as he was demanding the keys to the car. They both testified they recognized defendant based largely on his voice.
Significantly, neither Agent Rodriguez nor anyone else suggested to the Benners that they might be able to identify defendant based on his voice, either prior to or at the time of the October 12 hearing. (See People v. Ochoa, supra, 19 Cal.4th at p. 413 [identification procedure does not violate due process unless, at the threshold of the procedure, the state improperly suggests something to the witness].) Rather, it was John’s idea to watch and listen to defendant through the two-way mirror at the hearing, and John identified defendant as the shooter at the hearing only after hearing his voice. Further, John consistently stated, both at the time of the hearing and at trial, that he was unable to “positively” identify defendant based solely on his appearance, but he was “100 percent certain” that defendant was the shooter based on his voice. And, independent of her husband’s observations, Denise testified that she recognized defendant based “mostly” on his voice, because his voice became highly-pitched when he became excited, both at the time of the shooting and the hearing. (See People v. Clark (1992) 3 Cal.4th 41, 135-137 [identification of defendant based on “single-voice ‘lineup’” deemed reliable under totality of circumstances].)
For these reasons, the Benners’ in-court and pretrial identifications of defendant were reliable under the totality of the circumstances and were sufficient to corroborate the potential accomplice’s testimony.
Lastly, defendant’s reliance on People v. Carlos, supra, 138 Cal.App.4th 907 is misplaced. There, the court reversed the defendant’s judgment of conviction because a witness had identified him in an unnecessarily suggestive photographic lineup before trial. The defendant’s name and identifying information appeared directly below his photograph, but none of the other photographs in the lineup were accompanied by names or identifying information. Neither the witness who identified the defendant from the photographic lineup nor any other witness identified him at trial. (Id. at pp. 909-911.) Carlos presented a classic case of an unduly suggestive photographic lineup which was so impermissibly suggestive it gave rise to “a very substantial likelihood of irreparable misidentification.” (Id. at p. 912.) Here, in contrast, the circumstances at the October 12 parole revocation hearing were not so impermissibly suggestive that they gave rise to a substantial likelihood that the Benners, or either of them, misidentified defendant either at that time or nearly four years later, at trial.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J. Hollenhorst J.
The instruction did not, however, inform the jury that accomplice testimony had to be corroborated and viewed with caution. Nor did the instruction tell the jury it could not convict defendant based solely on accomplice statements or testimony, but could use an accomplice’s statements or testimony only if they were supported by other evidence the jury believed, that was independent of the accomplice’s statement or testimony, and that tended to connect defendant to the commission of the crimes.