Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS081671A
ELIA, J.After hearing the evidence at trial, a jury found appellant Armando Duarte guilty of second degree robbery, battery with serious bodily injury, and assault with force likely to produce great bodily injury. The jury further determined that appellant had personally inflicted great bodily injury on the victim, within the meaning of Penal Code section 12022.7, subdivision (a), in the course of the assault. On appeal, he contends that the jury received faulty instructions on the use of accomplice evidence. Appellant also contests the court's sentencing order imposing concurrent terms and setting the amount of the restitution fine. We will modify the sentence and otherwise affirm the judgment.
Background
At 5 p.m. on May 28, 2008, Jessica Olivera drove up to her apartment to find appellant and two friends, David Marquez and Christian Lopez, stealing recyclable plastic bottles from her patio. When she confronted the young men, appellant told her to move her car, which was blocking the car they had been occupying. One of the men struck Olivera in the jaw, causing injuries to her face and the dislodging of a tooth. Lopez took Olivera's cell phone when it fell to the ground, and all three men fled.
Olivera identified appellant and his co-defendant, Lopez, by their facial features. At trial she was sure that it was appellant who had hit her, as she had been close enough to him to "recognize his eyes." She did not actually remember being hit, though, and she told police that Lopez could have hit her too. Marquez, who testified for the prosecution pursuant to a plea bargain, stated that appellant was the one who had "punched" Olivera. Marquez had been standing next to a fence with Lopez, but when he saw appellant strike Olivera, he and Lopez hopped over the fence and ran away, leaving his car behind. Marquez admitted that he had pleaded guilty to assault, but that was not because he had personally assaulted the victim.
When shown a photograph of Olivera, Marquez recognized her. The following exchange was reported at trial: "[The prosecutor]: Do you recognize the person in this photograph? [¶] [A]. Yes. [¶] And who is she to you? [¶] A. The lady that I hit. [¶] Q. The lady that you hit? [¶] A. No, that got hit."
Appellant was arrested early in the morning of May 31, 2008. Appellant first told the police that he had heard about what had happened from his mother. When asked if he had been involved in a physical altercation with a female at the apartment complex, appellant said he did not remember. Later, he said he did not remember having assaulted anyone.
Appellant was charged with second degree robbery (Pen. Code, § 211), battery with serious bodily injury (Pen. Code, § 243, subd. (d)), and assault with great bodily injury (Pen. Code, § 245, subd. (a)(1).) As to the robbery and assault counts, the prosecution alleged that appellant had personally inflicted great bodily injury, within the meaning of section 12022.7, subdivision (a). At trial appellant did not testify, but Lopez testified on his own behalf. He said he had helped put the plastic bottles in Marquez's car, and he picked up Olivera's cell phone just before he ran, but he did not hit Olivera, nor did he see anyone else hit her.
All further statutory references are to the Penal Code unless otherwise stated.
The jury convicted appellant of all three counts and found the enhancement allegations to be true. Appellant was sentenced to six years in prison, consisting of three years for the robbery and three for the great bodily injury enhancement. He also received a concurrent six-year sentence for the assault and related enhancement, as well as a concurrent sentence of three years for the battery. Both the battery and the assault sentences were stayed pursuant to section 654. This appeal followed.
Co-defendant Lopez was charged similarly, with the additional count of receiving stolen property. The jury found him not guilty of robbery, battery, or assault, and guilty of only petty theft, a lesser included offense of robbery.
Discussion
1. Accomplice Instructions
Section 1111 defines "accomplice" as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." "The general rule is that the testimony of all witnesses is to be judged by the same legal standard. In the case of testimony by one who might be an accomplice, however, the law provides two safeguards. The jury is instructed to view with caution testimony of an accomplice that tends to incriminate the defendant. It is also told that it cannot convict a defendant on the testimony of an accomplice alone." (People v. Howard (2008) 42 Cal.4th 1000, 1021-1022.) Accomplice testimony "requires corroboration not because such evidence is factually insufficient to permit a reasonable trier of fact to find the accused guilty beyond a reasonable doubt, but because '[t]he Legislature has determined that because of the reliability questions posed by certain categories of evidence, evidence in those categories by itself is insufficient as a matter of law to support a conviction.' " (People v. Najera (2008) 43 Cal.4th 1132, 1136-1137.)
Accordingly, CALCRIM No. 334 permits the jury to determine whether a witness was an accomplice and, if so, whether his or her testimony was supported by independent evidence. CALCRIM No. 335 removes the first question from the jury's consideration and dictates that the witness's testimony be considered that of an accomplice.
In giving CALCRIM No. 334, the court instructed the jury on the proper consideration of Marquez's testimony as follows: "Before you may consider the testimony of David Marquez as evidence against the defendants regarding the crimes charged, you must decide whether David Marquez was an accomplice to those crimes. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if, one, he or she knew of the criminal purpose of the person who committed the crime; and, two, he or she intended to, and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime. [¶] The burden is on the defendant to prove that it is more likely than not that David Marquez was an accomplice.... An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he or she is present at the scene [of] a crime, even if he or she knows that a crime will be committed or is being committed and does nothing to stop it. [¶] If 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. If you decide that a witness was an accomplice, then you may not convict a defendant of the crimes alleged based on his or her testimony alone. You may use the testimony of an accomplice to convict the defendant only if, one, the accomplice's testimony is supported by other evidence that you believe. Two, that supporting evidence is independent of the accomplice's testimony. And three, that supporting evidence tends to connect the defendant to the commission of the crimes. [¶] Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the crimes alleged, and it does not need to support every fact about which the accomplice testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice. Any testimony of an accomplice that tends to incriminate a defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all of the other evidence."
The principal issue raised on appeal is whether the court prejudicially erred in instructing the jury on the roles of Marquez and Lopez as accomplices. As to Marquez, appellant argues that the court erroneously gave CALCRIM No. 334 instead of the correct instruction, CALCRIM No. 335. As to Lopez, appellant adds, the court should have given CALCRIM No. 334 but failed to give any accomplice instruction at all.
In evaluating the instruction regarding Marquez, we find it significant that appellant does not contest the sufficiency of the corroborating evidence. Instead, he argues that "because [Marquez] plead [sic] guilty to assaulting Olivera... the trial court was required to instruct the jury that Marquez was an accomplice as a matter of law and, as such, his testimony had to be corroborated by other, independent evidence believed true by the jury." Appellant maintains that the error was "not harmless because there was not sufficient corroborating evidence of Marquez's story and prejudice resulted because, if the jury had been properly instructed, it is reasonably probable appellant would have been acquitted."
Appellant does not demonstrate a basis for reversal. This is not a case in which the court failed to give any accomplice instruction at all, thereby depriving defendant of the cautionary admonition. The only difference offered by CALCRIM No. 335 is the removal from the jury's factfinding duty the question of whether the witness is an accomplice. As appellant himself emphasizes, Marquez pleaded guilty to assault with force likely to produce great bodily injury-the same offense with which appellant was charged. Consequently, it is not reasonably probable that the jury failed to find Marquez to be an accomplice. In light of that finding, the jurors knew from CALCRIM No. 334 that they had to find corroborating evidence to support Marquez's testimony. Thus, because the instruction was not deficient in omitting the requirement of corroboration, we have no basis for concluding that it allowed the jury to convict without the finding of corroboration. No prejudice could have resulted from the court's decision to instruct with CALCRIM No. 334 instead of No. 335.
As to Lopez, appellant argues that the court should have given a modified version of CALCRIM No. 334 applicable to accomplices who are also co-defendants. Again no prejudice resulted. Lopez could not have been an accomplice to the assault or battery because the jury acquitted him of every charge except petty theft, the lesser included offense to the robbery charge.
The prosecutor argued that Lopez's guilt was based on his taking the cell phone when it fell to the ground, though the petty-theft charge was a lesser included offense of the robbery.
Appellant suggests, however, that Lopez's testimony might have been used to corroborate Marquez's statement that appellant hit Olivera. It is true that evidence supporting an accomplice's testimony cannot be supplied by another accomplice, and the jury was so instructed. Lopez's testimony, however, did not corroborate Marquez's implication of appellant; on the contrary, he said he did not see or hear anyone being hit. Any corroboration by Lopez would have been confined to the undisputed fact that appellant was present on this occasion, began stealing the plastic bottles, and spoke to Olivera when she confronted the group. As no prejudice could have resulted from the asserted instructional errors, no basis for reversal is shown on this ground.
If the jurors had been instructed with CALCRIM No. 334, they would have viewed with caution Lopez's statements that (1) he did not see or hear Olivera being hit; and (2) he was not afraid of appellant, so if he had seen appellant hit the victim, he would have said so.
2. Sentencing Errors
As noted earlier, the court stayed the concurrent prison terms for count 2, the battery, and count 4, the assault with great bodily injury. In addition to imposing a six-year prison term, the court ordered appellant to pay a restitution fine of "$600 times six years, for a total of $3600." Both parties correctly argue that including the stayed counts in calculating the restitution fines violated section 654. (People v. Le (2006) 136 Cal.App.4th 925, 934; see also People v. Tarris (2009) 180 Cal.App.4th 612, 617.) The correct application of the formula yields a fine of $1,200 ($200 times six years times one count).
The parties also agree that the trial court erred when it imposed concurrent sentences while also staying the sentences on those same counts. (Cf. People v. Pearson (1986) 42 Cal.3d 351, 359-360.) The abstract of judgment should accordingly be amended to omit the prohibited reference to concurrent terms on the stayed sentences.
Disposition
The judgment is modified to impose stayed, not concurrent, sentences on counts 2 and 4, and a restitution fine of $1,200, not $3,600. The trial court is directed to amend the abstract of judgment to reflect these changes and forward a certified copy to the Department of Corrections. As so modified, the judgment is affirmed.
WE CONCUR: PREMO, Acting P. J. McADAMS, J.