Opinion
E056565
02-26-2015
THE PEOPLE, Plaintiff and Respondent, v. JACKIE LYNN DUNSON et al., Defendants and Appellants.
Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant Jackie Lynn Dunson. Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Rogelio Leon Zuniga. Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant Ronald Wesley Handwerk. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Antonio Benavidez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 . (Super.Ct.Nos. INF065236, INF065344 & INF065747) OPINION APPEAL from the Superior Court of Riverside County. David B. Downing and Michael B. Donner, Judges. Affirmed with directions. Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant Jackie Lynn Dunson. Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Rogelio Leon Zuniga. Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant Ronald Wesley Handwerk. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Antonio Benavidez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Downing presided over the trial of defendants Jackie Lynn Dunson, Ronald Wesley Handwerk, and Fernando Antonio Benavidez; Judge Donner presided over the trial of defendant Rogelio Leon Zuniga.
I. INTRODUCTION
Defendants Robert Dunson, Jackie Dunson, Ronald Handwerk, Fernando Benavidez, and Rogelio Zuniga were charged with one count of first degree murder with a robbery special circumstance. (Count 1; Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A).) An additional kidnapping special circumstance was alleged as to Robert and Zuniga. (§ 190.2, subd. (a)(17)(B).)
Robert Dunson and Jackie Dunson are brother and sister. To avoid confusion, we will refer to them by their first names.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court severed the trials twice, resulting in three trials, two of which are the subjects of this appeal. The first trial, of Jackie, Handwerk, and Benavidez, took place in March and April 2012. The jury in that trial found each defendant guilty as charged. Each was sentenced to life in prison without the possibility of parole.
The second trial, of Zuniga, took place in November 2012. The jury found Zuniga guilty of first degree murder with a robbery special circumstance. It hung on the kidnapping special circumstance allegation. He was sentenced to life plus one year in prison without the possibility of parole.
We affirm the judgments with directions.
II. THE BENAVIDEZ, HANDWERK, AND JACKIE DUNSON
TRIAL AND APPEAL
A. Factual Summary
1. Prosecution Case
(a) The Killing of William Dobbs
In November 2007, Robert and Jackie lived in the ground floor studio apartment of a two-story duplex on Sage Street in Indio. Handwerk occasionally stayed at the apartment.
Zuniga and his girlfriend, Melissa Johnson, stayed in the vacant, second floor apartment above the Dunsons' apartment. The apartment had no electricity or running water. They slept in a closet to keep warm.
According to Johnson, Benavidez was Jackie's "on-again off-again" boyfriend and visited at the Dunsons' apartment occasionally, but did not stay there. Johnson also said that Jackie was a prostitute, and Benavidez was known to bring clients, or "dates," to Jackie.
In November 2007, Robert, Jackie, Johnson, Zuniga, and Handwerk hung out together and smoked methamphetamine every day in the Dunsons' apartment. Benavidez would join them a couple of times per week.
The evidence as to what happened at the Sage Street duplex in November 2007 was presented primarily through the testimony of Johnson, who testified under a grant of immunity.
On November 25, 2007, Johnson and Zuniga smoked a "little bit" of methamphetamine. For Johnson, it was the fourth day of a "crystal meth run," during which she did not sleep. That evening, she, Jackie, Robert, Zuniga, Handwerk, and Benavidez were together at the Dunsons' apartment. Benavidez said he would get a date for Jackie and bring him back to the apartment to have sex with Jackie. Robert told the others he would not let his sister have sex for money; instead, they would bring a man "back to the apartment, beat his ass, rob him, and take all of his shit." Benavidez nodded his head in agreement and said "okay," and that he would go get her a date. Jackie also nodded in agreement. Zuniga said nothing. Handwerk, who had been walking back and forth between the kitchen and living room and appeared to be listening, said nothing. Benavidez then left the apartment. Johnson and Zuniga went to the upstairs apartment.
Johnson agreed with the prosecutor that she had previously described Robert's statement in these words: "[W]e're going to get a date, bring him back, fuck him up, and rob him and take his shit."
It takes about five minutes to drive from the Dunsons' apartment to the Spotlight 29 casino. A surveillance videotape from the Spotlight 29 casino showed Benavidez entering the casino just after midnight during the morning of November 26, 2007. The victim, William Dobbs, entered the casino about 1:15 a.m. Dobbs walked around the interior of the casino for about one-half hour, then walked outside. As Dobbs waited for the valet to bring his Cadillac Escalade, Benavidez stood near the doorway outside the casino, watching Dobbs. Dobbs left in the Escalade at 1:46 a.m.
Dobbs returned to the Spotlight 29 casino about 3:30 a.m. At 3:45 a.m., Dobbs met with Benavidez inside the casino. They talked briefly and then left together in Dobbs's Escalade.
Dobbs had a bank card which could be used to withdraw money from ATMs. A personal identification number, or PIN, must be used in order to use the card at an ATM.
At some point that night or early morning, Johnson woke to the voice of a man in the Dunsons' apartment screaming: "Oh, God. Please help me." Johnson described the screaming as "gut wrenching," "like someone is in pain, like they were hurt [and] screaming for someone to help them." She also heard "very loud" sounds of banging on a wall downstairs, "like something pretty heavy slamming up against the wall." Zuniga told Johnson to go back to sleep, which she did.
Handwerk went upstairs and knocked on the closet door where Johnson and Zuniga slept. He told Zuniga he needed to go downstairs "because . . . he had fucked somebody up and broke someone's ribs." Handwerk was holding his right hand in his left hand. Johnson could see that his hand was "messed up." Although Johnson pleaded with Zuniga not to go, Zuniga left with Handwerk. Johnson went back to sleep.
Johnson was next awakened by the sound of a vehicle engine starting up in the alley behind the apartment. It was still dark outside. Johnson walked downstairs where she saw Jackie standing at a fence that separated the property from the alley. There was no vehicle in the alley. Johnson asked Jackie about Zuniga. Jackie told her: "'They just had to go[,] Melissa. They will be right back. They just had to go. They just had to go somewhere.'" Jackie seemed excited and a little agitated. Johnson walked back upstairs and went to sleep.
When Zuniga returned to the upstairs apartment, Johnson awoke. In response to Johnson's inquiries, Zuniga told her that Robert had "hurt that man very bad." Zuniga left a short time later because he had to be in court. Johnson went back to sleep and slept throughout that day.
Tamara Steinruck was a prostitute who had known Jackie and Robert for approximately 20 years. In November 2007, she was living in a car and using heroin two or three times per day. She had Jackie's permission to take showers at the Dunsons' apartment. In the pre-dawn hours of November 26, 2007, Steinruck walked to the Dunsons' apartment to take a shower. As she approached the apartment, she saw the back of a person walking away from the Dunsons' apartment. She later told a detective that the person was Benavidez, and testified to that fact at the preliminary hearing in this case. At trial, however, she testified that she had "assumed" the person was Benavidez and that, after "getting [her] mind right" and off drugs, she recalled seeing Benavidez at a gas station immediately before going to the Dunsons' apartment and not seeing him again that night. The gas station is 1.62 miles from the Dunsons' apartment.
As Steinruck approached the apartment, she heard Jackie arguing, yelling, and crying. Steinruck heard Jackie say, "he was acting stupid," and something to the effect of "[h]e doesn't want to give [the money] to her." A side door to the apartment was ajar. As Steinruck passed by that door, she heard Robert yelling loudly and angrily, "'[g]et down, mother fucker'" and "[t]hese better be the right PIN numbers." Steinruck watched Robert push a man to his knees. The man appeared to have blood under his chin. Robert then put a plastic bag over the man's head and used duct tape to secure the bag to the man's neck and face. The man appeared to be whimpering. Steinruck heard a male voice say, "'Are you sure you can breathe?'" and Robert responded, "'Yes, the mother fucker could breathe.'" Steinruck testified that the male voice was not Handwerk's. Robert again yelled: "'This better be the right PIN numbers.'" As Steinruck began to leave, he heard Robert say: "Come on, mother fucker. We're going for a ride." Steinruck then left.
At 4:50 a.m.—about one hour after Benavidez and Dobbs left the Spotlight 29 casino—Jackie attempted to withdraw $500 from an ATM machine using Dobbs's bank card. The attempt was denied because it exceeded the daily withdrawal limit for the account. She then successfully withdrew $200 from the ATM. An attempt to obtain an additional $200 was denied.
Dobbs's account was in Canadian dollars. His bank records reflected the amounts of the attempted and successful withdrawals in Canadian dollars. For example, the first attempt was for 499.50 Canadian dollars. The exchange rate between United States and Canadian currency at that time was approximately one-to-one.
The chronology as to what Johnson saw and heard, what Steinruck saw and heard, and Jackie's use of Dobbs's bank card is not clear from the evidence. Although it is not disputed that Jackie used Dobbs's bank card at 4:50 a.m., Steinruck and Johnson were uncertain about the precise time of the events they described.
Eight or nine hours later, during the evening of November 26, 2007, three unsuccessful attempts to withdraw money with Dobbs's bank card were made. No evidence was presented as to who made these attempts.
When Johnson went downstairs to the Dunsons' apartment during the morning of November 27, Robert was kneeling in a corner of the living room scrubbing the walls with bleach and pulling up carpet. Robert gave Johnson a bank card and a piece of paper with a PIN number written on it. He told Johnson to go to the ATM and pull out as much money as she could and bring it back to him, and she would get "a little bit of money in return for going." Johnson said she took the card "to get money to eat, to buy drugs, to have somewhere warm to sleep." Johnson looked at Zuniga; Zuniga said, "let's go."
Between 10:26 a.m. and 11:39 a.m. on November 27, Johnson and Zuniga used Dobbs's bank card to retrieve approximately $1,000 from different ATMs. Johnson put $300, one of the transaction receipts, the bank card, and the PIN number in a pocket; she ripped up the other transaction receipts and put the rest of the cash in her bra.
When she and Zuniga returned to the Dunsons' apartment, she gave the receipt, $300, the bank card, and the PIN number to Robert. Johnson kept the remaining cash. Jackie observed the exchange without comment. Jackie then said, "Oh shit. It's on T.V." When Johnson asked what she was talking about, Jackie said, "nothing" and "[d]on't worry about it."
Dobbs's body was found on November 27 in a desolate area about two miles from the Spotlight 29 casino. A black bag had been attached to his neck with red tape. A Spotlight 29 valet parking pass was in his pocket. Dobbs had been stabbed with a sharp instrument, perhaps a knife, 14 times, mostly on his face and neck. His internal and external jugular veins and carotid artery were severed, which would have caused him to bleed to death very quickly. His trachea was also severed, which would have made it impossible for him to breathe. He had multiple bruises and abrasions on his face and scalp, and signs of blunt force trauma to his chest. The force was strong enough to break four ribs, which caused ruptures to his liver and lung. The forensic pathologist who performed the autopsy on Dobbs described the injuries as "brutal," and said it "looked like perhaps some injuries were inflicted for the purpose of torture" and for "causing pain." He believed that "[t]his is something that went on for a number of minutes or longer, . . . maybe 15, 20, 30 minutes. . . . Maybe more."
(b) The Aftermath
In the days following the incident, Johnson "nagged" Zuniga to tell her what happened. Eventually, as she, Zuniga, and Handwerk were walking near the Indio library, Zuniga told her that Robert "had murdered that man." Handwerk was standing next to Zuniga at that time. When Johnson said, "'[a]re you fucking kidding me,'" Handwerk said, "Yes, it happened." Zuniga elaborated, saying that the man had been beaten, his ribs had been broken, and he was stabbed in the back and neck. Handwerk agreed with Zuniga and said he had cracked the man's ribs. Handwerk explained that the man was murdered because he would have been able to identify Handwerk and Robert. Johnson noticed that Handwerk's right hand was bruised and swollen, and that Handwerk had been complaining that his hand was sore and about how he was unable to move his fingers.
Sometime after this conversation with Zuniga and Handwerk, Johnson met Jackie outside a convenience store. Jackie told Johnson she had been picked up and questioned by the police. Jackie told Johnson that if she was questioned by the police to tell them that she (Johnson) did not know her (Jackie) and had never seen or talked to her. Jackie also told her that the bank card Robert gave her belonged to the murdered man.
On December 1, 2007, four days after Dobbs's body was found, a detective found Dobbs's Escalade about 100 yards away from the Dunsons' apartment. Dobbs's blood was found in the Escalade.
Benavidez was questioned by detectives on December 1, 2007. When Riverside County Sheriff's Detective Kenneth Patterson asked Benavidez if he had been at the Spotlight 29 casino on or about November 26, 2007, Benavidez initially said "no." But when confronted with information regarding videotaped surveillance, Benavidez admitted he had been there, but denied meeting or leaving the casino with Dobbs.
The jurors were instructed that they could consider evidence of Benavidez's statements as to Benavidez only, not as evidence of what Jackie or Handwerk may or may not have done.
The detective observed that Benavidez's shoes appeared to have paint on them. The shoes appeared to be the same shoes Benavidez was wearing in the Spotlight 29 casino surveillance videotape. Benavidez told the detective he had painted the shoes earlier that day or the day before. The detective collected the shoes from Benavidez and had them tested "[f]or blood." The results of the test were not introduced into evidence. Photographs of the painted shoes were shown to the jury.
After his police interview, Benavidez went to the Dunsons' apartment where he told Johnson he had been picked up by the police and held for murder. He told Johnson that he had gone to the casino to pick up a date for Jackie and that the police had a videotaped recording of him leaving the casino with the man he brought back to the Dunsons' apartment. He explained that the police let him go because "that's all they had."
Steinruck testified about a statement Jackie made to her about two weeks after the incident. They were walking along a street when a police car passed by. According to Steinruck, Jackie began to panic and act nervous. Jackie told Steinruck that she feared the police would be coming for her "because Robert killed" a man and that she had used the victim's bank card. Jackie explained to Steinruck that Benavidez brought her a date from a casino and that the man started acting stupid and refused to pay her. She said Robert argued with the man, that "it got out of hand," and Robert killed him.
During trial, Steinruck and Jackie were among others being transported by bus from the jail to the courthouse. Jackie announced: "'That bitch is the snitch on my case,'" and told Steinruck, "'You better go in there and tell them you were lying.'" The jury was instructed that this testimony could be considered for evaluating any bias in Steinruck's testimony.
On January 8, 2007, a parole compliance search was conducted at the Dunsons' apartment. A 10- or 11-inch knife—larger than permitted under Robert's parole conditions—was found in the laundry room. The knife had Robert's blood on it, not Dobbs's.
(c) Police Interview of Handwerk
In April 2009, about 17 months after Dobbs was killed, Detective Patterson interviewed Handwerk. Handwerk initially said he "kn[e]w nothing," but eventually acknowledged that he had been involved in a fight with Dobbs. He said the fight occurred in the Dunsons' living room during the early morning of November 26, 2007. It ended when Robert got a "control hold" on Dobbs and Dobbs stopped resisting. Robert initially explained to Handwerk that he was beating Dobbs because Dobbs "'disrespected his sister.'" Later, Handwerk learned that Robert had been beating Dobbs to get Dobbs's wallet.
The jurors were instructed that they could consider evidence of Handwerk's statements as to Handwerk only, not as evidence of what Jackie or Benavidez may or may not have done.
When Detective Patterson asked Handwerk if he went to the bank, Handwerk initially said, "'No, I would never do that because that would make me an accessory.'" Later, Handwerk admitted, "'yeah, I did go to the bank.'" He explained that Robert had "possession" of the bank card and "obtained" the PIN. Handwerk then drove to the bank in Dobbs's SUV. He was gone five or ten minutes. Handwerk did not tell Detective Patterson that he personally held or used the card or PIN, or that he received any money. After going to the bank, Handwerk returned to the apartment and parked the SUV in the alley behind the apartment.
Handwerk further told Detective Patterson that when he got back from the bank, Zuniga and Robert were "marching" Dobbs out of the apartment. Dobbs had a plastic bag over his head and Handwerk could hear him whimpering. As Handwerk collected his things to leave, he heard the SUV drive away. It was still dark outside. He then went to a casino.
Detective Patterson explained to Handwerk that his interviews with others led him to believe that "[t]his was not a scam about sex. This was a scam to rob the guy. To get him there, beat him, rob him, and take his money." Handwerk agreed.
Handwerk also acknowledged that he was present near the Indio library when Zuniga spoke to Johnson about the murder. He said that Johnson and Zuniga were crying and he assumed it had to do with the incident involving Dobbs, but he told Detective Paterson he was not involved in that conversation.
2. Defense, Rebuttal, and Surrebuttal
Neither Benavidez nor Handwerk presented a defense.
Jackie presented the testimony of Dr. William Jones, a forensic psychologist, who testified regarding the effects of methamphetamine and sleep deprivation. He explained that using methamphetamine repeatedly over the course of several days will impair functioning, including memory and concentration. Sleep deprivation brought on by methamphetamine use will also impair memory and comprehension. The gaps in memory caused by drug use can be erroneously filled by confabulation.
Dr. Jones watched part of Johnson's testimony in court. He observed that Johnson appeared more organized and smoother than he expected, and opined that she was likely influenced by her review of documents about the case.
In rebuttal, the prosecution presented the testimony of Dr. Gregory McGowan, a psychiatrist who observed Johnson's testimony and opined that she did not suffer from "meth psychosis" on November 25, 26, and 27, 2007, because her recollection of events was identical to other people's description of the events. The psychiatrist heard nothing to indicate that Johnson's memory regarding the events could have been affected by her use of methamphetamine at that time. He perceived no problem with Johnson's memory regarding the events in November 2007.
In her surrebuttal case, Jackie introduced the testimony of a recovering methamphetamine addict and certified addiction specialist. He testified that someone who had been on a four-day drug run would have limited ability to comprehend and perceive what is really taking place. B. Discussion
1. Handwerk's Prior Statements and the Confrontation Rights of Benavidez and Jackie
As described above, Detective Patterson testified as to statements Handwerk made during his police interview. Because Handwerk did not testify, Benavidez and Jackie could not cross-examine him about any incriminating statements he might have made to Detective Patterson about them. To avoid violating Benavidez's and Jackie's Sixth Amendment right to confront witnesses against them, the court informed counsel that while Detective Patterson could reveal what Handwerk said he, Robert, and Zuniga did, the detective could not testify about any statements Handwerk made about his codefendants in this trial—Benavidez and Jackie.
Near the outset of Detective Patterson's testimony regarding the Handwerk interview, the court gave the jury the following admonishment: "The officer here will be asked questions about what Mr. Handwerk did. You can consider whatever his answers are as to Mr. Handwerk only. You may not consider Mr. Handwerk's answers as to what [Jackie] may or may not have done or what Mr. Benavidez may or may not have done. So the questions being elicited to the detective goes to Mr. Handwerk's involvement for liability only. Not to the others."
Detective Patterson then testified about his interview of Handwerk, which is summarized above, without mentioning either Benavidez or Jackie. His testimony included the following colloquy:
"Q. . . . did you ever confront [Handwerk] or ask him about whether this incident involving Mr. Dobbs had anything to do with some sort of scam to rob him and not about sex?
"A. I did.
"Q. What did you say to him?
"A. I don't recall my exact words, but I laid out what I—my investigation had revealed this entire incident to be, which involved a scam, involved a robbery. I laid out the folks that were involved and told him this had nothing to do with sex. And he agreed with me." (Italics added.)
On appeal, Benavidez and Jackie argue that while this testimony did not explicitly refer to them, the jury could infer from Patterson's words, "I laid out the folks that were involved," that Benavidez and Jackie were among the "folks" Patterson identified. Benavidez and Jackie contend that the testimony violated their confrontation rights under the Aranda/Bruton rule. We reject this argument.
See Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518.
The Aranda/Bruton rule and its development are summarized by our state Supreme Court in People v. Lewis (2008) 43 Cal.4th 415 (Lewis). "In Bruton, the United States Supreme Court held that the admission into evidence at a joint trial of a nontestifying codefendant's confession implicating the defendant violates the defendant's right to cross-examination guaranteed by the confrontation clause, even if the jury is instructed to disregard the confession in determining the guilt or innocence of the defendant. [Citation.] The high court reasoned that although juries ordinarily can and will follow a judge's instructions to disregard inadmissible evidence, 'there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.' [Citation.] Such a context is presented when 'the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.' [Citation.]" (Id at p. 453.)
"The high court limited the scope of the Bruton rule in Richardson v. Marsh (1987) 481 U.S. 200 . . . . There, defendant Marsh was jointly tried with one Williams for murder. Williams's confession was introduced into evidence, but it was edited to remove any reference to Marsh. The high court held that admission of Williams's confession with a limiting instruction did not violate Marsh's confrontation rights. The court explained that Bruton recognized a narrow exception to the general rule that juries are presumed to follow limiting instructions, and this narrow exception should not apply to confessions that are not incriminating on their face, but become so only when linked with other evidence introduced at trial. [Citation.] That is because, '[w]here the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.' [Citation.] Accordingly, the high court held, 'the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.' [Citation.]" (Lewis, supra, 43 Cal.4th at p. 454.)
The high court expressly left open the question whether a confession in which the defendant's name has been replaced with a symbol or neutral pronoun would violate the confrontation clause. (Richardson v. Marsh, supra, 481 U.S. at p. 211, fn. 5.) The California Supreme Court considered this issue in People v. Fletcher (1996) 13 Cal.4th 451. The court held that "editing a nontestifying codefendant's extrajudicial statement to substitute pronouns or similar neutral terms for the defendant's name will not invariably be sufficient to avoid violation of the defendant's Sixth Amendment confrontation rights. Rather, the sufficiency of this form of editing must be determined on a case-by-case basis in light of the statement as a whole and the other evidence presented at the trial." (Id. at p. 468.)
The Bruton rule was further refined in Gray v. Maryland (1998) 523 U.S. 185. "There, the defendant and his codefendant were jointly tried for murder. Admitted into evidence was the codefendant's edited confession in which a blank space or the word 'deleted' was substituted for the defendant's name wherever it appeared in the confession. The high court concluded that the admission of the edited statement violated Bruton, . . . because '[r]edactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration . . . leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that . . . the law must require the same result.' [Citations.] That was because in context such statements operate just like a confession that names the defendant—they point an accusatory finger at the person 'sitting at counsel table,' i.e., the defendant on trial. [Citation.] The court acknowledged that a jury had to use inference to connect the blanks in the redacted statement to the defendant, and that 'Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially.' [Citation.] The court concluded, however, that Richardson's application depended 'in significant part upon the kind of, not the simple fact of, inference.' [Citation.] When, despite redaction, the statement 'obviously refer[s] directly to someone, often obviously the defendant, and . . . involve[s] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial' [citation] the Bruton rule applied and introduction of the statement at a joint trial violated the defendant's rights under the confrontation clause. [Citation.]" (Lewis, supra, 43 Cal.4th at pp. 454-455.)
Initially, we consider Detective Patterson's statement that he "laid out the folks that were involved" in the "scam" to rob Dobbs to mean that the detective told Handwerk who the detective believed was involved in the "scam." Although it was the detective, not Handwerk, who "laid out" the people he believed were involved, Benavidez argues that when Handwerk "agreed with" the detective's statement, he effectively adopted it as his own. It is not clear, however, that Handwerk was agreeing with the detective's statement about who was involved or merely the detective's assertion that the plan "had nothing to do with sex." Viewing the entire colloquy on this matter, it appears that the focus of the prosecutor's questions was on whether the incident with Dobbs was a "scam to rob him and not about sex." Thus, even if Handwerk was affirming the detective's identification of the people involved, the vague, isolated, and prefatory nature of the "folks" comment does not suggest the kind of "powerfully incriminating extrajudicial statements of a codefendant" that the Bruton rule is designed to avoid. (Bruton v. United States, supra, 391 U.S. at pp. 135-136.)
Even if Handwerk is deemed to have adopted the detective's identification of the people involved in the scam and the detective's statement implicated the Aranda/Bruton rule, we do not believe the statement violated the confrontation rights of Benavidez or Jackie. Although Patterson's phrase, "the folks," obviously refers to people other than Handwerk, it does not obviously refer to Benavidez or Jackie. (See Gray v. Maryland, supra, 523 U.S. at p. 196; People v. Burney (2009) 47 Cal.4th 203, 231.) Moreover, in light of the detective's testimony regarding his interview with Handwerk, it is unlikely the jury would have immediately inferred that the phrase refers to Benavidez or Jackie. Detective Patterson used the phrase near the end of his testimony regarding the Handwerk interview. Prior to that point, Detective Patterson testified, in essence, that Handwerk (1) described a fight between Robert and Dobbs, (2) said Robert had given him Dobbs's bank card, (3) admitted taking Dobbs's SUV to the bank, and (4) said that upon returning from the bank he saw Robert and Zuniga carrying Dobbs from the apartment. There is nothing in Handwerk's statements to suggest that anyone other than he, Robert, and Zuniga were involved in the crimes, and nothing from which the jury could immediately infer that Benavidez or Jackie were involved in the plan to rob Dobbs. In light of the entirety of the evidence of Handwerk's statements, "the folks" appears to refer to Robert and Zuniga, as well as Handwerk; it does not implicate Benavidez or Jackie.
Benavidez argues that because Handwerk had already specifically mentioned Robert and Zuniga, the detective's reference to "the folks that were involved" must have meant people in addition to Robert and Zuniga. The argument is not persuasive. Although it is possible that the "folks" meant people other than or in addition to Robert and Zuniga, the statement does not immediately suggest either Benavidez or Jackie. Nor does the fact that Benavidez and Jackie, as Benavidez argues, "were both sitting at counsel table with Handwerk" compel that inference. In light of Handwerk's explicit descriptions of Robert's and Zuniga's involvement and his apparent failure to mention Benavidez or Jackie at all, the jury could likely conclude that Benavidez and Jackie were "sitting at counsel table" because of evidence, such as Johnson's testimony, other than Handwerk's statements.
To be sure, when the phrase, "the folks that were involved," is viewed in conjunction with other evidence at trial, such as Johnson's identification of the people who were at the apartment when the robbery plan was hatched, jurors could infer that Detective Patterson's reference to the folks involved included Benavidez and Jackie. This possibility is not enough to implicate the Aranda/Bruton rule. As our Supreme Court recently stated: "The class of inferentially incriminating statements under Bruton is limited to 'obvious[]' ones, 'inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.'" (People v. Montes (2014) 58 Cal.4th 809, 867, quoting Gray v. Maryland, supra, 523 U.S. at p. 196.) Even if the jury would draw the inference that "folks" included Jackie and Benavidez, they could not be immediately drawn if Handwerk's statements were the very first item introduced at trial.
2. Issues Pertaining to Handwerk's Rights Arising from the Redaction of His Statements to Detective Patterson
In Handwerk's police interview, he told Detective Patterson that he and Jackie went to the bank with Dobb's bank card. Indeed, Handwerk said that Jackie asked him to go to the bank to use the card; i.e., it was Jackie's idea. To avoid violating Jackie's confrontation rights at trial, the court instructed the prosecutor not to elicit from Detective Patterson any of Handwerk's statements about Jackie. As a result, the detective testified as to Handwerk's statements about going to the bank with Dobbs's bank card, but omitted any reference to Jackie. Handwerk objected to this on the ground that it gave the jury "the wrong impression," i.e., "[t]hat for some reason Mr. Handwerk went to the bank all by himself and did what he did." He requested that the court exclude Handwerk's statements on this subject. The court denied the request.
On appeal, Handwerk repeats this contention and argues that it "was important for the jury to know it was Jackie's idea to go to the bank—not Handwerk's" and that "Handwerk just tagged along at Jackie's request and remained in the car; he did not share in the proceeds or use the card." He asserts that the redaction also deprived him of his right under Evidence Code section 356 to present the whole statement. He further contends that the problem was compounded by the fact that Detective Patterson falsely testified on direct examination that Handwerk said Robert had given him Dobb's bank card and PIN when, in fact, Handwerk never said he received the card from anyone; rather, Jackie had the card.
We first address the false testimony argument.
On direct examination by the prosecutor, Detective Patterson testified to the following:
"Q. What did [Handwerk] say he did after he was asked by Mr. Dunson to retrieve Mr. Zuniga?
"A. . . . . [¶] He said that he had gone upstairs and was gone for about a minute or so. Came back down, and then that's when he went to the bank.
"Q. And did he say why he went to the bank?
"A. To use a debit card.
"Q. Did he say whether or not that was—he knew that to be Mr. Dobbs's debit card?
"A. Robert had possession and had obtained a PIN. And it was given to him.
"Q. Was given to him by whom?
"A. Mr. Dunson." No one objected.
On cross-examination by Handwerk's counsel, the following colloquy took place:
"Q. . . . You said in your direct examination that Mr. Handwerk told you that Robert gave him a PIN number?
"A. A debit card and PIN number was obtained. Yes.
"Q. Gave it to Mr. Handwerk?
"A. He was in — [¶] Sir.
"Q. Did he give it to Mr. Handwerk?"
At this point, the prosecutor observed that Detective Patterson was looking at the court for guidance. The matter was then taken up by the court and counsel outside the presence of the jury. During the discussion, it was revealed that Handwerk never said he received the bank card from Robert. Rather, Jackie had the card; Handwerk never had possession of it.
In light of this information, the court and counsel faced the question of how to clear up the issue regarding possession of the bank card without implicating Jackie and running afoul of Aranda/Bruton. The matter was resolved by allowing Handwerk's counsel to ask the detective the following question: "'During the course of your investigation, did Mr. Handwerk ever say he personally had the card?'"
When they were back in the presence of the jury, the court prompted Handwerk's attorney to ask the question that had just been formulated. Handwerk's counsel said: "I don't remember it." At that point the prosecutor interposed: "[D]uring the course of your investigation in your interviews with [Handwerk], did he personally tell you that he personally used the ATM card and PIN number?" The prosecutor added: "I think that was the question." Handwerk's counsel responded: "Something like that." Detective Patterson then answered the question, stating: "That was worded better, but, no."
Upon further cross-examination, Detective Patterson testified that Handwerk said he never touched the card or PIN number. Later, the following colloquy between Handwerk's attorney and Detective Patterson took place:
"[Handwerk's attorney]: At any time during your interview, did he, Mr. Handwerk, say he got Mr. Dobbs's card?
"A. No.
"Q. PIN number?
"A. No.
"Q. Wallet?
"A. No.
"Q. Any money from this?
"A. No."
We reject Handwerk's argument regarding Detective Patterson's false testimony. To the extent that the detective's initial testimony regarding Handwerk's receipt of the bank card on direct examination was incorrect, it was adequately cleared up on cross-examination when he testified that he never received or touched the card.
Handwerk points out that after the matter was discussed outside the presence of the jury and a resolution was reached about how Handwerk's attorney would phrase the question, the prosecutor actually asked a question different from the one that had been discussed. The question formulated outside the presence of the jury was: "'During the course of your investigation, did Mr. Handwerk ever say he personally had the card?'" (Italics added.) When they were back before the jury, Handwerk's attorney could not recall the question, and the prosecutor then stepped in to ask: "[D]uring the course of your investigation in your interviews with [Handwerk], did he personally tell you that he personally used the ATM card and PIN number?" (Italics added.) Thus, the prosecutor asked whether Handwerk said he "used the ATM card," not whether he "had the card," leaving open the possibility that Handwerk said he possessed, but did not use, the card.
Handwerk's trial attorney made no objection to the different phrasing. Indeed, it appears he considered any difference to be immaterial when, in response to the prosecutor's comment, "I think that was the question," Handwerk's counsel said, "Something like that." In light of this record, any challenge to the phrasing of the question has been waived. Even if not waived, the subsequent cross-examination on this point clarified the matter and, we conclude, rendered any error harmless.
In a related argument, Handwerk contends that the prosecutor's assertion during rebuttal argument that Handwerk used Dobbs's wallet and took the bank card constituted misconduct and "unfairly exploited Detective Patterson's false testimony." Specifically, the prosecutor stated the following: "Let's take Mr. Handwerk. He comes downstairs and he says, 'What the fuck. He wouldn't give me the wallet.' He knows right there it is about a robbery, doesn't he? Then he goes and he uses that wallet. Bing. Bing. Bing. There is aiding, abetting, encouraging right there." (Italics added.)
Counsel for Handwerk objected, stating that "[t]here is no showing anywhere that Mr. Handwerk used the wallet." The court then admonished the jury as follows: "[L]awyer's arguments aren't evidence. It is their impression or their view of what the evidence has shown, and in good faith, they are trying to present that, but they could be wrong on occasion. The bottom line, though, is always the same. You, the jury, decide what the facts are. You, the jury, decide what the evidence is, and if there is a difference between what a lawyer anywhere tells you what the evidence showed and what your recollection is, you go with your recollection. [¶] Worst comes to worst, at the end, you're deliberating, and you have a debate about it, you can always ask that the court reporter's notes be read back to you. Okay. And you must accept the court reporter's notes as accurate."
Later, in response to Handwerk's counsel's argument that there was no evidence that Handwerk aided or abetted the robbery, the prosecutor said the following: "[I]sn't going upstairs and getting Mr. Zuniga and fighting with this guy and taking the ATM card and Mr. Dobbs' vehicle to [the savings and loan] and using it and coming back, isn't that knowledge of a robbery at this point and aiding, abetting, facilitating, and encouraging the robbery? Yeah. It is. Absolutely." (Italics added.) No objection was made to these statements.
"'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]" (People v. Montes, supra, 58 Cal.4th at p. 869.)
The prosecutor's statements do not, we conclude, amount to misconduct under the federal or state standards. The first comment, that Handwerk "use[d] the wallet," was brief and adequately addressed by the court's admonishment. (See, e.g., People v. Montes, supra, 58 Cal.4th at p. 870 [admonishment to disregard the arguments of counsel if not supported by the evidence was sufficient to avoid prejudice from prosecutor's reference to facts outside the record]; People v. Tate (2010) 49 Cal.4th 635, 688-689 [any harm resulting from prosecutor's remark that the defendant had refused to consent to search was cured by admonishment to jury that statements made by attorneys are not evidence].)
Regarding the second comment, about "taking the ATM card," Handwerk made no objection to the statement at trial and has therefore forfeited the issue on appeal. (See People v. Harrison (2005) 35 Cal.4th 208, 259 [defendant may not argue on appeal that the prosecutor's statements were unsupported by evidence].) Even if not forfeited, the brief comment did not constitute misconduct.
We now turn to the issue of the prejudice to Handwerk resulting from the redaction of his statements to omit Jackie's involvement with the bank card.
If, at a joint trial, the prosecution redacts or changes one codefendant's statements in order to protect the rights of a codefendant, the prosecution "must not change those words to the defendant's prejudice." (People v. Rountree (2013) 56 Cal.4th 823, 849.) "A defendant is prejudiced in this context when the editing of his statement distorts his role or makes an exculpatory statement inculpatory." (Lewis, supra, 43 Cal.4th at p. 457; accord, People v. Rountree, supra, at p. 849.)
In Lewis, defendant Lewis was convicted of the kidnapping, robbery, and murder of Elizabeth Nisbet. (Lewis, supra, 43 Cal.4th at p. 431.) He and three codefendants were tried together. (Id. at p. 432.) The victim, Nisbet, had been sitting in her car in a shopping mall parking lot while her husband ran an errand. (Id. at p. 437.) She was kidnapped and driven away in her car. After the kidnappers used Nisbet's ATM card to withdraw money, she was shot and killed. (Ibid.) Defendant's confession to police regarding the incident was redacted to avoid references to the codefendants. For example, in describing what happened when he and two codefendants approached Nisbet's car, he stated that codefendant Hubbard "'walked over first, took the gun out, got in behind [the victim] and told her "Don't scream and don't move."' The redacted statement read to the jury stated: 'Then got out of the car, walked over first, took the gun out, got in behind [the victim], and told her "don't scream and don't move."'" (Id. at p. 458, fn. 8.) The court noted that "the jury might have believed that defendant had admitted that he 'walked over first' and told [the victim] 'don't scream and don't move,' when in actuality defendant said Hubbard did those things." (Ibid.) As a result of the redactions, the Supreme Court observed that the editing "change[d] the meaning of defendant's statements," "impliedly overstated defendant's role," and "made it appear that defendant acknowledged participating in conduct that he actually had attributed to codefendant Hubbard." (Id. at pp. 457-458, fn. omitted.)
Nevertheless, the Lewis court concluded that there was no error because "the redactions did not distort defendant's role in the crimes or alter any of his explicit admissions as to his own actions in any material way." (Lewis, supra, 43 Cal.4th at p. 457, italics added.) The court explained that nothing exculpatory was omitted from the statements and the defendant admitted, in both redacted and unredacted statements, that he had performed acts that constituted the elements of the charged offenses. (Ibid.)
Like the redactions in Lewis, the changes to Handwerk's statements are not material. Omitting Jackie's role in the handling and use of the bank card did not make an exculpatory statement inculpatory. It is clear from Handwerk's statements that after Robert beat up Dobbs, Handwerk went to the bank in Dobbs's SUV and returned a short time later. Either he went to the bank alone without possessing or using Dobbs's bank card (as his redacted statement suggests) or he went with Jackie, who used the bank card to withdraw money from Dobbs's account (as other evidence indicated). The redacted statement—that he merely drove Dobbs's SUV to the bank—arguably makes him less culpable, not more. Furthermore, if the jury believed that Handwerk did more than merely drive the SUV to the bank—i.e., that he actually aided or abetted Jackie's theft at the ATMs—the fact that it was Jackie's idea to go to the bank is not material in this context. Handwerk, as the person who drove Jackie to the bank to steal Dobbs's money, is no less culpable because someone else came up with the idea.
Next, Handwerk asserts that the changes to his statements violate Evidence Code section 356. That section provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
In Lewis, supra, 43 Cal.4th 415, the court explained that "limits on the scope of evidence permitted under Evidence Code section 356 may be proper when, as here, inquiring into the 'whole on the same subject' would violate a codefendant's rights under Aranda or Bruton." (Id. at p. 458.) The court observed that "the trial court did not prevent defendant from cross-examining the witnesses to bring out his own hearsay statements that exculpated him or lessened his own role in the crimes. Nor . . . did the trial court prevent defendant from presenting nonhearsay testimony or evidence that implicated his codefendants. [Citation.] Rather, the trial court precluded defendant only from bringing out his own hearsay statements that expressly inculpated his codefendants. These limits were permissible notwithstanding Evidence Code section 356." (Ibid.)
Here, as in Lewis, Handwerk cross-examined Detective Patterson to bring out his statements to lessen his role in the crime. He elicited from the detective that he never possessed Dobbs's bank card, PIN, or wallet, and never received any money. Moreover, the trial court did not prevent Handwerk "from presenting nonhearsay testimony or evidence that implicated his codefendants." (See Lewis, supra, 43 Cal.4th at p. 458.) The limits were, therefore, permissible. (See ibid.)
3. Exclusion of Evidence Regarding Dobbs's Intoxication and Conduct at Strip Club
At a hearing on evidentiary motions, defense counsel sought to introduce evidence that Dobbs (1) behaved inappropriately at a strip club during the evening before he met Benavidez, and (2) that he had a 0.13 percent blood-alcohol level and had cocaine in his system when he died. Regarding his conduct at the strip club, the prosecutor stated that "working girls" at the club made statements that Dobbs was intoxicated and "had been trying to procure sex or cocaine or something like that." According to Jackie's counsel, Dobbs had received lap dances by multiple women at the same time. Later, her counsel added: "Dobbs during the course of that whole night had been behaving kind of out of control, raging frat boy. From getting out of the strip club, being inappropriate with the strippers there, to masturbating while he was out with the strippers."
In his opening brief on appeal, Benavidez uses stronger language to describe Dobbs's behavior at the strip club. According to his appellate counsel, Dobbs "was drunkenly abusing the women" and "extremely belligerent and drunkenly aggressive with some strippers." He does not provide citations to the record for these assertions.
Defendants argued that such evidence was relevant to the theory of their defense that there was no plan to rob anyone; the plan was merely to bring a client back for Jackie's prostitution services. After Dobbs was brought back to the Dunsons' apartment, however, he became a "raging jerk and started yelling at" Jackie, which caused Robert to wake up and start attacking Dobbs. Only then did Robert form the intent to rob Dobbs. This scenario would arguably exonerate Benavidez who, his counsel explained, "took his finder's fee and went on his way." Jackie explains that the evidence would help her effort to disassociate herself from Robert "and his homicidal conduct." Handwerk states that it would support his defense that he joined in the fight against Dobbs only to come to Robert's aid.
The court stated that it would exclude toxicology evidence regarding cocaine or alcohol in Dobbs's system, but would permit Jackie to testify that she could smell alcohol on Dobbs's breath. She could also testify as to what Dobbs said to her and "[e]verything that happened in the house." The court also excluded evidence of what happened at the strip club that night because it was relevant only "to show that he was an idiot." The defendants challenge these rulings on appeal.
Defendants contend the excluded evidence is relevant to show Dobbs's character as a "belligerent drunk" and admissible to prove that he acted as such toward Jackie. (See Evid. Code, § 1103, subd. (a).) We disagree.
A trial court has wide discretion in determining the relevance of evidence, and we review the court's ruling for an abuse of that discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
There was no abuse of discretion in excluding evidence of Dobbs's behavior at the strip club. Initially, we observe that the record does not disclose what witnesses at the strip club actually said; we have only counsels' assertions about the women's statements. Counsels' statements suggest only that Dobbs was at a strip club on the night in question, he was intoxicated, he received lap dances from multiple women at the same time, had tried "to procure sex or cocaine," and was "inappropriate" and masturbated while with the strippers. Although Dobbs may have been intoxicated and acted, as counsel stated, like a "frat boy," there is nothing in the record to indicate that Dobbs raised his voice to anyone in the club, expressed anger or displeasure towards anyone, harmed or threatened anyone, argued or quarreled with anyone, refused to pay anyone, was asked to leave the club or did anything to cause him to be removed from the club, or that he even spoke to or touched anyone (other than himself) in an offensive or inappropriate manner. Although Benavidez's counsel claims on appeal that Dobbs was a "mean, nasty drunk" involved in "several instances of specific conduct tending to show that during this period Dobbs had a character for insulting, degrading, and belligerent conduct against women," he does not refer us to anything in the record that supports the assertion. In short, the record simply does not support defendants' claim that Dobbs displayed the character of a "belligerent drunk" at the strip club. The trial court could thus easily conclude that evidence of his strip club behavior was not relevant to defendants' argument that he acted like a belligerent drunk toward Jackie hours later. The ruling was not an abuse of discretion.
Regarding the toxicology evidence, Benavidez argues that "as the cases have long recognized, there is a close correlation between inebriation and aggressiveness or quarrelsomeness." "The cases" he cites are out-of-state authorities, with one exception: People v. Lamar (1906) 148 Cal. 564. In Lamar, the defendant asserted he had shot and killed the victim in self-defense. (Id. at pp. 565-566.) There was evidence that the victim was intoxicated at the time of the shooting. (Id. at p. 571.) After a witness testified that the victim had a "good" reputation "for peace and quiet" (id. at p. 569), the defense sought to establish that the victim had a different reputation when he was intoxicated, viz., a reputation for "being a quarrelsome, violent, and dangerous man" (id. at p. 571). The trial court precluded the defendant from introducing such evidence. (Id. at pp. 569-570.) The Supreme Court held it was error to exclude the evidence. (Id. at p. 572.) It explained that a "man may possess different characters or different reputations, adapted to different localities or different conditions of mind, and as applied to the inquiry at hand the deceased may have had one reputation for peace and quiet when sober, and quite another for these same traits when drunk. The existence of these different reputations under different conditions of mind was what the defendant sought to show,—the reputation of [the] deceased for violence when intoxicated, as contradistinguished from his reputation for peace when sober . . . ." (Ibid.)
Lamar merely holds that evidence that a particular person has a character for being quarrelsome, violent, and dangerous when intoxicated is admissible to prove that the person acted in conformity with that character when, at the time of the incident, the person was intoxicated. That is very different from holding, as Benavidez suggests, that evidence of a victim's intoxication is always relevant to prove that the victim was aggressive or quarrelsome. Before evidence of Dobbs's intoxication could be relevant to the issue of whether he was belligerent or quarrelsome toward Jackie, there must first be, at least, some evidence that Dobbs has a character for being aggressive or quarrelsome when intoxicated. As discussed above, no such foundation was presented to the trial court. Although Dobbs may have acted, as the trial court stated, like an "idiot" when he was intoxicated at the strip club, there was nothing to indicate that he acted belligerently or in a quarrelsome manner. The exclusion of the toxicology evidence, therefore, was not an abuse of discretion.
4. Court's Refusal to Instruct That Johnson Could be Considered an Accomplice
A conviction cannot be based upon uncorroborated accomplice testimony. (§ 1111.) An accomplice is "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." (Ibid.) "'"[W]henever the testimony given upon the trial is sufficient to warrant the conclusion upon the part of the jury that a witness implicating a defendant was an accomplice,"' the trial court must instruct the jury, sua sponte, to determine whether the witness was an accomplice. [Citation.] If the testimony establishes that the witness was an accomplice as a matter of law, the jury must be so instructed. [Citation.] In either case, the trial court also must instruct the jury, sua sponte, '(1) that the testimony of the accomplice witness is to be viewed with distrust [citations], and (2) that the defendant cannot be convicted on the basis of the accomplice's testimony unless it is corroborated . . . .' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 982.)
Here, the court instructed the jury with CALCRIM Nos. 334 and 707 regarding the need for corroboration of accomplice testimony. The jury was further instructed that before considering the statements or testimony of Robert, Zuniga, Handwerk, Jackie, or Benavidez, as evidence against defendants, it must determine whether they were accomplices to the charged crimes. Defense counsel had requested that Johnson be included as a possible accomplice. Following argument on the issue, the court rejected the request, stating: "I don't think any evidence whatsoever even shows that Melissa Johnson is even an accomplice on the facts of this case. She is a witness, and she is a thief after the fact, but she had nothing to do with the underlying offense at all . . . ." On appeal, the defendants assert the ruling was error. We disagree.
Defendants were charged with first degree murder with a robbery special circumstance. The district attorney alleged felony murder based on robbery or attempted robbery, as well as murder by premeditation and deliberation. No one contends that Johnson was a direct perpetrator of the robbery or murder of Dobbs; her liability as an accomplice, if any, is as an aider or abettor or coconspirator. (See People v. Stankewitz (1990) 51 Cal.3d 72, 90 [the definition of an accomplice in § 1111 "encompasses all principals to the crime [citation] including aiders and abettors and coconspirators."].) An aider and abettor must act "with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of," the crime in question. (People v. Beeman (1984) 35 Cal.3d 547, 560.) To be an uncharged coconspirator, the person must (1) intend to agree and agree with another to commit the charged crime, (2) intend at the time of the agreement that one or more members of the conspiracy commit the charged crime, and (3) one or more members of the conspiracy committed at least one overt act to accomplish the crime. (People v. Belmontes (1988) 45 Cal.3d 744, 789, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; CALCRIM No. 416.)
The evidence that arguably connects Johnson to the charged crime is evidence that she was present when Robert proposed the plan to bring someone to the apartment to rob them, she did not warn Dobbs or tell the authorities of the plan, and one day after the robbery and murder she used Dobbs's bank card to take money from ATMs. As the trial court stated, the use of the bank card the day after the murder was evidence that Johnson was a thief, but not a robber or murderer. The evidence otherwise establishes only that Johnson was present when the plan to rob someone was proposed and she thereafter went to sleep. There is nothing to indicate any intent to agree or agreement with Robert's plan, any intent to commit, encourage, or facilitate the plan, or that Johnson undertook any act to encourage or facilitate the crime. Because there is no substantial evidence to support a finding that Johnson was an accomplice to robbery or murder, the court did not err in refusing to include her in the accomplice instructions.
Benavidez contends this case is "closely similar" to People v. DeJesus (1995) 38 Cal.App.4th 1. In DeJesus, the witness, Corey Lohr, lived with and sometimes acted as a bodyguard for Ian Duncan, a dealer of illegal weapons. (Id. at p. 8.) Duncan offered Lohr $500 to kill Justin Zeitsoff, who had "'ripped him off.'" (Id. at pp. 8-9.) Lohr said he would think about it. Further discussions about Duncan's plan to kill Zeitsoff and take some of his money and property occurred over the ensuing days. The day before the murder of Zeitsoff, Lohr said he would not do it. (Id. at p. 9.) Duncan told Lohr if he had to kill Zeitsoff, Lohr would only get $250 for helping to get rid of the body. (Id. at pp. 9-10.) Lohr told Duncan that although he would not pull the trigger, he would be willing to help out. (Id. at p. 24.) Duncan eventually enlisted Jude DeJesus to kill Zeitsoff at Duncan's house. (Id. at p. 10.) Lohr said he did not want to be in the room when the murder occurred, but would be in the bathroom "'[i]n case something went wrong.'" (Id. at pp. 10, 24.) When Zeitsoff arrived at the house, Lohr went into the bathroom. DeJesus shot Zeitsoff, killing him. (Id. at p. 10.) Lohr helped remove items from Zeitsoff's car, cover the body with plastic bags, and bring the body out of the house and into the trunk of Zeitsoff's car. (Id. at pp. 11, 24.) He then wiped fingerprints off the car. (Id. at p. 24.) Duncan gave Zeitsoff $100. (Id. at p. 12.)
The trial court refused the defendant's request to give an accomplice instruction regarding Lohr's testimony. The Court of Appeal held that this was error. (People v. DeJesus, supra, 38 Cal.App.4th at p. 22.) The court explained that based on the facts in that case, the jury could have decided that Lohr "acted '"with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging, or facilitating commission of, the offense."' [Citation.]" (Id. at p. 25.)
Johnson's actions on the night Dobbs was robbed and killed are not comparable to the actions of Lohr in DeJesus. At most, Johnson was aware of a plan to have Benavidez bring a date for Jackie back to the apartment and rob him. Unlike Lohr, she did not tell anyone she would "help out," then stand ready to help in case something went wrong. Nor did she assist in disposing of the body or destroying evidence by wiping away fingerprints as did Lohr. Although she subsequently stole money by using Dobbs's bank card, this occurred after the robbery and murder had been completed.
Benavidez further contends that the present case is "even stronger" than People v. Hamilton (1989) 48 Cal.3d 1142. Again, we disagree. In Hamilton, the defendant wanted to have his wife killed. He offered his sister, Carolyn, $20,000 to help find someone to commit the murder. (Id. at p. 1152.) Carolyn asked another sister, Victoria, who agreed to kill the defendant's wife for $10,000 and "suggested that a shotgun would 'probably be the easiest weapon to use.'" (Id. at pp. 1152, 1169.) Victoria moved to Texas a few days later. When Carolyn called her and asked if she intended to return to California to help with the murder, Victoria agreed to do so, although she had no intention of doing so. (Id. at p. 1169.) Some time later, the defendant, with the aid of Carolyn and a third person, shot and killed his wife with a shotgun. (Id. at p. 1153.)
Victoria testified at the defendant's trial about her conversations with Carolyn. The court instructed the jury that it should determine whether Victoria was an accomplice before considering her testimony. (People v. Hamilton, supra, 48 Cal.3d at p. 1169.) The court denied the defendant's request that the jury be instructed that Victoria was an accomplice as a matter of law. (Ibid.) The Supreme Court concluded there was no error. The court explained that there was a factual dispute as to whether Victoria's conversations with Carolyn about the defendant's plan to kill his wife amounted to aiding and abetting. (Ibid.) The court stated that Victoria's actions—her statement that she would participate in the murder, her suggestion of the murder weapon, and her move soon thereafter to Texas—rendered her intent ambiguous. In that situation, Victoria's status as an accomplice status, the court concluded, was properly left to the jury. (Id. at p. 1170.)
By contrast, there is no evidence in the present case that Johnson ever said she would commit or participate in the crime proposed by Robert; nor did she suggest how the crime be committed. She merely went upstairs to sleep. Hamilton does not support defendants' position.
5. Admission of Dr. McGowan's Opinion Regarding Johnson's Honesty
In its rebuttal case, Dr. McGowan opined on Johnson's honesty in statements Johnson gave to law enforcement. In particular, when the prosecutor asked Dr. McGowan what materials he reviewed for this case, Dr. McGowan responded: "It's like Dr. Jones [a defense expert] said, if you want to be able to tell if someone is lying or telling the truth, what we call in the medical field is collateral information. The more information you can get from different sources, the easier it is to verify what the person is telling you if it's true, not true or partially true. By reviewing these materials, it gave me a good foundation when listening to [Johnson] testify in person to know where she was lying, telling the truth. And I found her at no time to be lying during those interviews."
At that point, Jackie's counsel objected to the testimony as improper. The court then instructed the jury: "Well, ladies and gentlemen of the jury, the issue is at the end, you are the sole arbitrator [sic] of the credibility of witnesses, whether they are telling the truth or not. So it's your call when they testify here. And, of course, you can consider any previous consistent or inconsistent statements they may have made. [¶] So I will strike the doctor's answer that she wasn't lying. That's a jury determination. Ask the jury to disregard that answer."
Later, the prosecutor asked Dr. McGowan if Johnson's involvement with Alcoholics Anonymous affected his opinion of Johnson's memory regarding the events to which she testified. Dr. McGowan stated: "Well, if you combine the therapy that . . . she said she was getting along with the 12 steps and having a sponsor, she basically was allowed in a safe environment to start coming to grips with the things that had happened in her life. Basically her memories of these events. . . . [¶] She was actually in school. She was hanging out with regular people, not using drugs, stealing. She was doing things with her life that incorporated the 12 steps and incorporated her therapy. So as that occurred, these memories, these people started coming out that she could deal with. And she started putting things together. And then she started—when she was asked questions by the police, she gave the honest answers that she had. And the other part of that is—"
Jackie's counsel interjected: "Objection. He's opining as to her honesty. It's improper." The court sustained the objection and added, presumably to the witness: "Stay away from her."
In instructing the jury, the court gave CALCRIM Nos. 222 ("If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose"), 226 ("You alone, must judge the credibility or believability of the witnesses"), and 332 ("you are not required to accept [expert opinions] as true or correct" and "may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence").
There is no dispute that Dr. McGowan's testimony that Johnson was not lying during police interviews and gave "honest answers" was improper. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82 [generally, "an expert may not give an opinion whether a witness is telling the truth"]; People v. Melton (1988) 44 Cal.3d 713, 744 ["lay views on veracity do not meet the standards for admission of expert testimony."].) The issue on appeal is whether the sustaining of defense objections and the court's admonition and instructions were ineffective because the testimony was incurably prejudicial. We conclude it was not.
Generally, we presume that the jury followed a court's instructions and admonitions thereby avoiding prejudice to the defendant. (See, e.g., People v. Avila (2006) 38 Cal.4th 491, 574; People v. Riggs (2008) 44 Cal.4th 248, 299; People v. Valdez (2011) 201 Cal.App.4th 1429, 1437.) "'It is only in the exceptional case that "the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions." [Citation.]' [Citation.]" (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404; see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1224 [presumption that admonitions cure improprieties "can be overcome only in exceptional circumstances"].) Whether "exceptional circumstances" exist "depends upon the facts in each case." (People v. Allen (1978) 77 Cal.App.3d 924, 935.)
Here, Dr. McGowan was called as an expert on the effects of long-term drug use on memory. The comments by Dr. McGowan about Johnson's veracity came in response to a foundational question concerning the materials he reviewed and a question as to how Johnson's participation in Alcoholics Anonymous affected his opinion of Johnson's memory. The improper comments were brief and did not disclose any inadmissible facts regarding defendants. The opinions were on a subject—Johnson's veracity—that the jurors could easily evaluate based on Johnson's extensive testimony without relying on an expert. The statements were met immediately with sustained objections and an admonition to the jurors that they are the sole arbiters of the credibility of witnesses. The jurors were further instructed with appropriate instructions reminding them that they alone judge the credibility of witnesses and directing them to disregard testimony that had been stricken. Based on our review of the entire record, we have no reason to believe the jurors did not abide by the admonition and follow the instructions.
Benavidez contends this case is similar to People v. Navarrete (2010) 181 Cal.App.4th 828. In that case, the defendant was charged with committing a lewd act on a four-year-old girl. (Id. at p. 830.) The trial court granted the defendant's motion to suppress statements he made to detectives prior to being advised of his Miranda rights. (People v. Navarrete, supra, at p. 831.) One of the detectives was upset by the court's ruling and "promised he 'was going to show' the court." (Id. at p. 832.) When the officer took the stand to testify, he was asked why he decided against testing swabs taken from the body of the victim. He answered: "'Well, for several reasons, the first of which it's a court rule that the defendant's statement is inadmissible. So I can't state the first reason.'" (Id. at p. 831.) The court struck the testimony and gave a curative instruction to the jury. (Id. at pp. 831-832.) The defendant was thereafter convicted.
Miranda v. Arizona (1966) 384 U.S. 436.
The Court of Appeal reversed the judgment because "the court's curative instruction could not undo the damage [the detective] inflicted . . . ." (People v. Navarrete, supra, 181 Cal.App.4th at p. 834.) The court explained that the jury may have reasonably inferred from the detective's testimony that he did not have the swabs tested because of something the defendant told him that the defendant "had confessed or otherwise incriminated himself, rendering DNA evidence unnecessary." (Ibid.) The court placed significance on the fact that the detective "intended to tell the jury about [the defendant's] statement because he intended to prejudice the jury against [the defendant]." (Id. at p. 836.) The detective's "misconduct," the court added, "more likely than not achieved the effect he sought." (Id. at pp. 836-837.)
The present case is not at all similar to Navarrete. Dr. McGowan's opinions as to Johnson's veracity are not analogous in any way to, or as serious as, the detective's implied reference to a confession in Navarrete. Nor is there anything in our record to suggest that Dr. McGowan made his statements with any intention to prejudice the jury against any defendant.
6. Court's Denial of Request to Question Jurors Regarding Discussing the Case During Trial
During trial, Benavidez's counsel informed the court that Benavidez's mother had approached her and said she had overheard "two to three jurors who were saying things like, 'I'm so [bored]. I hope they are not going to talk about chairs or where the chairs were, or on the right or left. I don't want to hear this anymore.'" The court agreed with counsel that the jurors are not supposed to be talking about the case and subsequently admonished the jury as follows: "Ladies and gentlemen, in a moment we'll take our afternoon recess. I got to talk to you about something serious and something not so serious. The serious part first. Ladies and gentlemen, you can't talk about the case even with each other. I know it's hard to sit here and you can't say anything and you are watching. Humans can't resist talking. They can't. It's just human nature. [¶] The truth is you can't talk to each other about the case or anybody else. When the case is over, you can talk until the cows come home. You can't do it now. It's improper to do it. Because think about it, if jurors start speculating about what they think about a witness and say so now, you know, when you get in the jury room in a couple weeks and start talking, your mind may have been made up. You don't want to do that."
Four days later (on the next day of testimony), Detective Patterson was asked about photographs of shoes worn by Benavidez when he was interviewed on December 1, 2007. Detective Patterson commented that the shoes appeared to have been freshly painted white. He further stated that the shoes were tested "[f]or blood." The results of the test were never introduced into evidence. The court then recessed.
Following the recess, Benavidez's sister, Margarita Benavidez, told the court: "I was standing here in the hallway where the cement wall is there. I was looking down because you told us not to make any contact or look at the jurors. So I was staring down. I just heard two females saying . . . [s]omething like, 'Well, maybe that's the last time there will be blood on my shoes,' or something about the blood on the shoes. And they started laughing and they kept talking." Other than observing the jurors were women, she could not identify the jurors.
The court gave the attorneys an opportunity to ask Margarita questions about what she overheard and invited counsel to comment. Counsel for Benavidez asked the court to inquire of the female jurors whether they had been talking about the case. The prosecutor suggested that the court "should bring the jurors in here who made a comment and make a ruling on" whether there was misconduct. After further discussion, the court took the matter under submission.
The issue was taken up again the next day. The prosecutor asked the court to inquire of the jurors about the comments, and counsel for Benavidez and Jackie joined. The court declined, stating: "The juror said it. It is not worth inquiring into at this point, and I'm not going to inquire. I will admonish the jurors though. There have been two reports about jurors talking about the case. Even though it may be minor. And in CALCRIM [No.] 104, I will tell them to stay away from everybody outside." The court added that "whatever was said doesn't rise to the level of misconduct that we know of. Jurors talk, folks."
The court subsequently admonished the jurors thusly: "Twice—once last week and once this week—there have been reports to me that jurors are talking about the case. Very minor, but I have gotten those reports. I'm not going to say or do anything about it at this point. But to remind everyone . . . . [¶] . . . Please, folks, don't talk about this. Just resist the temptation or [sic] say anything. Wait until the case gets to you, and then in the jury room you can talk about it as much as you want." The court then instructed them with CALCRIM No. 104.
The court gave the following instruction based on CALCRIM No. 104 as follows: "You the jurors must decide what the facts are in this case. You must use only the evidence that is presented in the courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I tell you to consider as evidence. The fact that the defendants were arrested, charged with a crime or brought to trial is not evidence of guilt.
"Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys will obviously discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witness's answers are evidence. The attorney's questions are significant only if they help you understand the witness's answers. Do not assume that something is true just because one of the attorneys asked a question that suggests it is true.
"During the trial the attorneys may object to and have objected to questions asked of a witness. I will rule on those—and I have as it's come up—according to the law. If I sustain an objection, the witness will not be permitted to answer and you must ignore the question. If the witness does not answer, please do not guess what the answer might have been or why I ruled as I did. If I order testimony stricken from the record, you must disregard and must not consider that testimony for any purpose. You must disregard anything you see or hear when the court is not in session, even if it is done or said by one of the parties.
"Again, the court reporter is making a record of everything that is said during this trial. That is why I come out of chambers conferences and wait for the reporter to plug back in. Everything has to be reported. If you decide it is necessary at the end of trial, you may ask that the record be read back to you. You must accept the court reporter's record as accurate."
Defendants contend the court erred in denying their request to question the jurors to determine whether and to what extent misconduct occurred. We reject this argument.
Jurors have a duty to "not converse among themselves, or with anyone else, conduct research, or disseminate information on any subject connected with the trial." (§ 1122, subd. (a)(1).) Violating this duty constitutes deliberate misconduct. (People v. Ledesma (2006) 39 Cal.4th 641, 743.) "'[A] juror's serious and willful misconduct is good cause to believe that the juror will not be able to perform his or her duty.' [Citation.]" (Ibid.)
"'"When a trial court is aware of possible juror misconduct, the court 'must "make whatever inquiry is reasonably necessary"' to resolve the matter." [Citation.] Although courts should promptly investigate allegations of juror misconduct "to nip the problem in the bud" [citation], they have considerable discretion in determining how to conduct the investigation.' [Citation.] 'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.' [Citation.]" (People v. Virgil (2011) 51 Cal.4th 1210, 1284.) "'[A] hearing is required only where the court possesses information which, if proven to be true, would constitute "good cause" to doubt a juror's ability to perform his duties and would justify his removal from the case. [Citations.]' [Citation.]" (Ibid.)
The court did not abuse its discretion in its handling of the matter. First, the comment is by one juror about blood on her shoes. Although it was probably prompted by the evidence concerning paint on Benavidez's shoes, it was not, strictly speaking, a comment about Benavidez's shoes or a "subject connected with the trial." (§ 1122, subd. (a)(1).) Second, to the extent the comment did violate the juror's duty to not discuss the case, the court could reasonably conclude that the inquiry proposed by counsel would only make the matter worse. As the court noted, Margarita did not know which jurors she overheard. The court could not, therefore, be sure who to question. Margarita said the two jurors were women, but there were eight women on the jury. If the court inquires of each woman on the jury, the potential for prejudice to defendants might actually be increased. Instead of a jocular comment by one woman, heard by only one other woman, about blood on her shoes, the comment would be brought up by the court's inquiry to as many as six other women. The court's inquiry would undoubtedly be viewed by the jurors with some degree of solemnity and likely increase in the jurors' minds the significance of the paint on Benavidez's shoes.
Defendants rely on People v. Chavez (1991) 231 Cal.App.3d 1471, People v. Huff (1967) 255 Cal.App.2d 443, People v. McNeal (1979) 90 Cal.App.3d 830, and People v. Burgener (1986) 41 Cal.3d 505. Each is easily distinguishable.
In Chavez, a juror was seen talking to a police officer witness for the prosecution. (People v. Chavez, supra, 231 Cal.App.3d at p. 1479.) The police officer told the attorneys that he and the juror did not discuss the case. (Ibid.) The court took no action. The Court of Appeal held that the court erred in failing to hold a hearing. (Id. at p. 1482.) It explained: "The fact that the juror was seen speaking with a police officer who had been a witness in the trial constituted evidence that the juror may have been subject to improper or external influences." (Ibid.)
In Huff, the defendant was seen talking to two jurors during a recess. (People v. Huff, supra, 255 Cal.App.2d. at pp. 444-445.) The court declared a mistrial without inquiring of the jurors. (Id. at pp. 445-446.) The Court of Appeal held that the declaration of mistrial was unjustified and an abuse of discretion. (Id. at p. 447.) "Before the matter was ruled on," the court explained, the "defendant should have been given a reasonable opportunity to present his version of the incident . . . ." (Id. at p. 448.) By contrast to the situations in Chavez and Huff, the juror in the present case who spoke of blood on her shoes was not seen talking to any witness or a defendant, and there is nothing to suggest she was otherwise subject to improper or external influences.
McNeal involved a juror who stated during deliberations that she had "personal knowledge"—apparently "information outside the evidence"—that was bearing on how she would vote and had shared this knowledge with other jurors. (People v. McNeal, supra, 90 Cal.App.3d at pp. 835-836.) The court inquired of the juror, but did not ask about the juror's outside information but only whether the juror could deliberate fairly and impartially. (Id. at p. 836.) This inquiry, the Court of Appeal stated, was inadequate. (Ibid.) Here, by contrast, there is nothing in our record to suggest that any juror had information outside the record bearing on the case.
In Burgener, the court was informed by the jury foreman that one of the jurors had been intoxicated during the deliberations. (People v. Burgener, supra, 41 Cal.3d at pp. 516-517.) The court admonished the jurors "on the subject of intoxicants," but otherwise took no action. (Id. at p. 517.) The Supreme Court stated that the court should have conducted an inquiry to determine whether the juror was intoxicated such that her "ability to follow the instructions of the court, to deliberate, to render a verdict or otherwise discharge her duties was compromised . . . ." (Id. at p. 520.) Our case bears no factual similarity to Burgener and unlike that case, there is nothing in the statement overheard by Margarita to suggest that the juror might have been unable to discharge her duties.
7. Sufficiency of the Evidence to Support the Robbery-murder Special-circumstance Findings as to Jackie and Benavidez
The jury found true the special circumstance allegations that the murder of Dobbs was committed while defendants were engaged in the commission or attempted commission of robbery. (§ 190.2, subd. (a)(17)(A).) Jackie and Benavidez contend there was insufficient evidence to support this finding.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] When reviewing the sufficiency of evidence to support a special circumstance, the relevant inquiry is '"whether, after viewing the evidence in the light most favorable to the People, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt."' [Citations.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Under the robbery-murder special circumstance, a defendant who is found guilty of first degree murder may be sentenced to life in prison without the possibility of parole if "[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, [or] attempted commission of" robbery. (§ 190.2, subd. (a)(17)(A).) However, if the defendant is not the "'actual killer, the prosecution must show that the aider and abettor had intent to kill or acted with reckless indifference to human life while acting as a major participant in the underlying felony. [Citation.]' [Citation.]" (People v. Smith (2005) 135 Cal.App.4th 914, 927 (Smith); accord, People v. Hodgson (2003) 111 Cal.App.4th 566, 578 (Hodgson).)
The word "major" in the phrase "major participant" "includes 'notable or conspicuous in effect or scope' and 'one of the larger or more important members . . . of a . . . group.' [Citation.]" (People v. Proby (1998) 60 Cal.App.4th 922, 933-934.) "The term 'reckless indifference to human life' means 'subjective awareness of the grave risk to human life created by his or her participation in the underlying felony.' [Citation.]" (Id. at p. 928; accord, Smith, supra, 135 Cal.App.4th at p. 927.) Guidance regarding these terms is provided in Hodgson, supra, 111 Cal.App.4th 566, Smith, supra, 135 Cal.App.4th 914, and People v. Lopez (2011) 198 Cal.App.4th 1106.
In Hodgson, the victim drove her car up to a remote-controlled electronic entry gate to the underground parking garage of her apartment building. (Hodgson, supra, 111 Cal.App.4th at p. 570.) As the gate opened, Victor Salazar fired a bullet that hit the victim in the neck. The victim's car rolled into the parking garage and hit a pillar and another car. Salazar ran to the car and shot the victim in the head. As Salazar grabbed the victim's purse and wallet, William Hodgson tried to stop the electronic gate from closing. Hodgson yelled something to Salazar and started walking away. Salazar "squeezed his body through as the gate began to close." (Ibid.) Hodgson was found guilty of murder with a robbery-murder special circumstance. (Id. at p. 573.)
On appeal, the court rejected Hodgson's claim that the evidence was insufficient to support the special circumstance finding. Initially, the court observed that there was no "evidence [Hodgson] supplied the gun, or was armed, or personally took the loot, or the like." (Hodgson, supra, 111 Cal.App.4th at p. 579.) Nevertheless, because the defendant "was the only person assisting Salazar in the robbery murder his actions were both important as well as conspicuous in scope and effect." (Id. at p. 580.) The court further explained that the jury could have rationally determined that the defendant "acted with 'reckless indifference to human life'" because, instead of coming to the victim's aid after the first shot, he chose to assist Salazar in accomplishing the robbery by trying to keep the gate from closing. (Ibid.)
In Smith, three men—Taffolla, Smith, and Felix—went to April Star's motel room to rob her. (Smith, supra, 135 Cal.App.4th at pp. 919-920.) Taffolla waited outside Star's room as a lookout, while Smith went inside and Felix left to get his car. Star was later found dead in the room. She had been beaten severely and suffered 27 knife wounds. Her head had been slammed against a wall, leaving a hole in the drywall. The cord from a broken steam iron was wrapped around her neck. Taffolla and Smith ran away to a point where Felix picked them up in his car. When Taffolla told his girlfriend about the incident, he said that Star was not supposed to be killed. (Ibid.) There was no evidence that Taffolla had been inside Star's room. A jury found Taffolla guilty of murder and found true special circumstance allegations of robbery and burglary. (Id. at p. 921.)
The Court of Appeal affirmed, stating: "Even if Taffolla remained outside Star's room as a lookout, the jury could have found Taffolla gained a 'subjective awareness of a grave risk to human life' during the many tumultuous minutes it would have taken for Star to be stabbed and slashed 27 times, beaten repeatedly in the face with a steam iron, and had her head slammed through the wall. In addition, when Smith emerged from her room covered in enough blood to leave a trail from the motel to McFadden Street, Taffolla chose to flee rather than going to Star's aid or summoning help." (Smith, supra, 135 Cal.App.4th at p. 927.) As for Taffolla being a "major participant," the jury could have reasonably found "that Taffolla's contributions were 'notable and conspicuous' because he was one of only three perpetrators, and served as the only lookout to an attempted robbery occurring in an occupied motel complex." (Id. at p. 928.)
In Lopez, Rebecca Brousseau lured the victim into a secluded alley by promising an act of prostitution, to enable Lopez to rob the victim. (People v. Lopez, supra, 198 Cal.App.4th at p. 1108.) During the robbery, Lopez shot the victim once. (Id. at pp. 1108-1109, 1113.) The victim lived long enough to start his car and start to drive away before he died. (Id. at p. 1109.) After the shooting, Brousseau and Lopez spent the night together at the home of a third person. (Id. at pp. 1113-1114.) In rejecting Brousseau's challenge to the sufficiency of the evidence supporting the robbery-murder special-circumstance finding, the court stated, initially, that there was evidence that Brousseau knew Lopez had a gun when she lured the victim into the alley aware of Lopez's plan to rob the victim. (Id. at pp. 1115-1116.) The court went on to explain that "Brousseau's knowledge of the gun before the robbery is not necessary to uphold the jury's finding of special circumstances." (Id. at p. 1116.) "Brousseau's act of luring the victim into the secluded alley was critical to the robbery's success. After hearing what she knew was a gunshot, she failed to help the victim or call 911. Instead she went to [a third person's] house and stayed with [Lopez] and [another] for the rest of the night and, on the evidence, engaged in sexual intercourse with Lopez. Her actions reflect utter indifference to the victim's life." (Id. at p. 1117.)
Benavidez contends he was not a major participant. Rather, he "merely did what he always did: he brought a customer back for a prostitute." We disagree. According to Johnson, Benavidez proposed to get a date for Jackie and bring him back to the apartment. Robert, however, would not allow it. He told the others that they should bring a man "back to the apartment, beat his ass, rob him, and take all of his shit." Benavidez indicated his agreement with this plan and implemented it by going to the Spotlight 29 casino, finding a date/victim, and bringing him back to the apartment where Robert and others waited. His role in finding the victim and bringing him to the Dunsons' apartment, like Brousseau's role in luring the victim into the secluded alley, was critical to the robbery's success. His efforts also appear to have been more significant to the fulfillment of the plan than the lookout role that Taffolla had in the Smith case. There is thus ample evidence from which the jury could conclude that Benavidez was a major participant in the robbery.
The evidence is not clear as to what Benavidez did after he brought Dobbs to the apartment. There is, however, evidence from which the jury could infer that he was present during at least part of the time that Dobbs was being beaten. Johnson testified that she was awakened by the sound of a man in the Dunsons' apartment screaming and the sound of something heavy, such as the victim, being slammed against a wall. At Zuniga's direction, she went back to sleep. After some time passed—Johnson was not sure how much time—she was awakened by Handwerk, who requested Zuniga's aid and admitted breaking someone's ribs. By the time Steinruck arrived at the Dunsons' apartment, it appears that Dobbs had already been brutally beaten and was merely "whimpering," and no longer screaming. This evidence strongly suggests the passage of more than a few minutes since the beginning of the beating of Dobbs and the time that Steinruck arrived. When this evidence is placed together with Steinruck's statement that she saw Benavidez leaving the apartment just prior to her arrival, the jury could reasonably infer that Benavidez was present for at least some part of the beating of Dobbs. The inference is further strengthened by the fact that Benavidez had painted his shoes within days of the crime, suggesting he had something incriminating on them to cover up. If, as the jury could reasonably conclude, Benavidez was present as Dobbs was being beaten, he apparently did nothing to stop it. Like the defendants in Hodgson, Smith, and Lopez, who did nothing to aid the victims after the actual killer inflicted the initial harm, Benavidez could reasonably be found to have acted with reckless indifference to human life.
Although Steinruck testified at trial that she merely assumed the person she saw was Benavidez, the jury could have believed her prior statement to a detective that the person she saw leaving the apartment was Benavidez. (See People v. Lopez, supra, 198 Cal.App.4th at p. 1116.)
For similar reasons, the jury could also have reasonably found that Jackie was a major participant in the plan and acted with reckless indifference to human life. She was not only, as the Attorney General put it, "the bait," but was a critical party to the agreement to lure the victim back to the apartment. Moreover, it appears from Steinruck's and Johnson's testimony that she was present during the beating of Dobbs up until the time Zuniga and Robert drove him into the desert. She not only failed to do anything to stop the brutal attack, but proceeded to use Dobbs's bank card to further the robbery.
We therefore reject Benavidez and Jackie's challenge to the sufficiency of the evidence.
8. Sentencing Issues
Defendants raise three arguments regarding sentencing: (1) the minute orders regarding sentencing and the abstracts of judgment should be amended to reflect the oral pronouncement regarding defendants' joint and several liability for direct victim restitution; (2) the court erred in imposing and staying a restitution fine; and (3) the court erred in imposing a parole revocation fine. The Attorney General agrees with defendants as to each claim of error, but disagrees with defendants as to the remedy for the error regarding the restitution fine. As we explain below, we will vacate the parole revocation fine, direct the court to hold a new sentencing hearing to determine whether there are compelling and extraordinary reasons to not impose a restitution fine, and direct the court to amend the minute orders and abstracts of judgment to reflect the oral pronouncement of judgment.
At the sentencing hearings, the court ordered each defendant to pay restitution to the victim in the amount of $12,104, plus $672.22 to the Victim's Compensation Claims fund. The court declared that the restitution obligations are joint and several among defendants.
The minute orders regarding restitution state: "Restitution fines/fees are joint and several liability between all 3 co-defendants." Defendants contend this statement is erroneous because direct victim restitution is not a "fine" or a "fee." As the Attorney General concedes, this is correct. (See § 1202.4, subds. (a), (b), (e), (f) [distinguishing restitution paid directly to victim and a restitution "fine," which is deposited in the State Treasury].)
The abstracts of judgment include the dollar amounts of the restitution order, but do not indicate that liability is joint and several. Defendants and the Attorney General agree that this is error.
When there is a discrepancy between the court's oral pronouncement of judgment and statements in a minute order or abstract of judgment, the oral pronouncement controls. (See People v. Mesa (1975) 14 Cal.3d 466, 471.) A different statement in the minute order or abstract of judgment is presumably the result of clerical error. (Ibid.) This court has inherent authority to correct such clerical errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) In our disposition, we will direct the court to make a new minute order and amend the abstracts of judgment accordingly.
We turn to defendants' second argument.
In addition to direct restitution, the court imposed and stayed a restitution fine of $240. (See § 1202.4, subd. (b).) As to each defendant, the court stated that it was staying the fine because defendant was unable to pay it. It gave no other reason. Both sides agree this was error. Under section 1202.4, subdivision (b): "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." The statute requires the court to impose the fine or, if compelling and extraordinary reasons exists for not doing so, not impose the fine; the court has "no authority to 'stay' the . . . restitution fine . . . ." (People v. Woods (2010) 191 Cal.App.4th 269, 273.) When, as here, the court imposes and stays a restitution fine, it acts "in excess of the court's jurisdiction, [and the order] must be set aside." (Ibid.)
Defendants and the Attorney General disagree about the remedy for the error. Defendants suggest that the fine should be vacated because the court found that they "should not pay the fine" and, therefore, "the court should not have made it part of the sentence." (Fn. omitted.) The problem with defendants' argument is that the only reason the court gave for "not pay[ing] the fine" was that defendants were unable to pay it. If that was a valid reason for not imposing the fine, defendants' argument might have merit. However, the Legislature explicitly stated that a "defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine." (§ 1202.4, subd. (c).) Because the only reason given by the court for determining that defendants should not pay the fine is legally insufficient, the court could not, on that basis, decline to impose the fine.
Arguably, the appropriate remedy is to strike the order staying the restitution fine, leaving the order imposing the restitution fine intact. However, the Attorney General contends the trial court should consider the matter upon remand "to determine if valid compelling and extraordinary reasons exist to not impose the restitution fine." The Attorney General refers us to People v. Woods, supra, 191 Cal.App.4th 269, where the court faced a similar issue. In Woods, the trial court improperly stayed a restitution fine without determining whether there were any compelling and extraordinary reasons to not impose the fine. (Id. at p. 273.) After concluding the court's stay order was error, the Court of Appeal stated: "When an unlawful sentencing decision is made (which in this case is the stay order of the restitution fine), the proper course of action is to allow the trial court to lawfully exercise its discretion and impose a lawful sentence." (Ibid.) We agree with Woods and will make a similar disposition on this point.
Defendants' third argument regarding sentencing orders is that the court erred in imposing a parole revocation fine. As the Attorney General concedes, defendants are correct. Section 1202.45, subdivision (a), provides: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall . . . assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (Italics added.) By its terms, the statute applies only "where a sentence has been imposed which includes a 'period of parole.'" (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) When, as here, a defendant's only sentence is life in prison without the possibility of parole, no parole revocation fine can be imposed. (Ibid.)
III. THE ZUNIGA TRIAL AND APPEAL
A. Factual Summary
1. Prosecution Case
Zuniga was tried separately from the other defendants. At Zuniga's trial, Johnson, Steinruck, and Detective Patterson testified, for the most part, substantially as they did at the trial of Benavidez, Handwerk, and Jackie. Except as noted below, differences in the testimony are not material to Zuniga's claims on appeal. We will not, therefore, summarize such evidence. We note the following differences material to this appeal.
The pathologist's testimony regarding the autopsy of Dobbs was actually identical because the parties stipulated to having his earlier testimony read at Zuniga's trial.
Photographs were taken by a surveillance camera at the savings and loan ATM where Jackie used Dobbs's bank card during the early morning of November 26, 2007. One photograph shows Jackie using the ATM at 4:49 a.m. Three other photographs appear to show a man at or near the ATM around the same time. Johnson testified that the man in the photographs is Zuniga.
During a search of the Sage Street duplex in March 2008, detectives found a rental agreement concerning the property naming Jackie and Armand Soto as tenants. The agreement is dated January 21, with no year shown. Detective Patterson testified that Soto was Jackie's boyfriend at the time of the search. He did not know when they began that relationship.
The prosecution introduced the testimony of John Childs. In October 2009, Childs was in a holding cell with Zuniga awaiting a court appearance. According to Childs, Zuniga told him the following. A man had been lured from a casino to a house where Zuniga and his girlfriend were staying upstairs. A brother and sister were downstairs at the house with the sister's boyfriend and a third man. The sister and her boyfriend took the victim's bank card and left, but could not get funds. When they returned, the men got upset because the victim gave them an incorrect PIN. The men then beat the victim and cut him. The third man went upstairs to get Zuniga. When Zuniga arrived downstairs, the victim was on the floor and Zuniga saw he had been beaten. The sister left the apartment to use the bank card again.
The "brother" was the person who cut the victim with a knife. Zuniga told Childs that the brother cut the victim because he gave them the incorrect PIN number for the bank card. Someone put a plastic bag over the victim's head and used duct tape to hold the bag to his neck. Duct tape was also used to bind the victim's hands. Zuniga took the victim to the victim's vehicle. They put the victim in the back of the vehicle and Zuniga drove him into the desert. Childs did not know how many other people were in the vehicle or the names of the others. At this point, the victim was still alive.
When they reached their destination, "they dumped [the victim] out of the car." The victim was then, in Zuniga's words, "[c]arved like a turkey." They then drove back to their house. After he returned to the house, Zuniga and his girlfriend tried to use the victim's bank card.
Zuniga told Childs that he had lied to the police when he told the police that he was forced to come downstairs, forced to drive the vehicle, and forced to put the bag on the victim's head.
2. Defense Case
The defense presented the testimony of two experts, Stacey Wood, a neuropsychologist, and Kento Wong, a forensic scientist with expertise in clinical toxicology. Wood testified to her assessment of Zuniga's IQ scores and concluded that his overall IQ was in the low-average range. Wong testified about the effects of methamphetamine use, including anxiety, hallucinations, delusions, paranoia, and memory problems. A methamphetamine user on a four-day binge will likely have difficulty sleeping, then "crash" and sleep for a long time. After waking from a long sleep, they could still be "half asleep" and delusional.
Zuniga testified in his defense as follows. In the month before November 2007, Zuniga would go to Robert's house about once per week to "smoke dope." Zuniga considered Robert an "associate. Another drug user." He was acquainted with Jackie and Benavidez. Zuniga also knew and hung out with Handwerk. Soto, Jackie's boyfriend at that time, was at the apartment "like every other day." As of November 25, 2007, it had been two or three days since he saw Soto at the apartment.
In November 2007, Johnson had been Zuniga's girlfriend for one and one-half years. During that period, Zuniga and Johnson used methamphetamine every day. He and Johnson had a four-day "run" leading up to November 25, 2007, when they were getting high constantly.
In 2007, Benavidez was Jackie's boyfriend and was "pimping Jackie out." By November 2007, however, Jackie had a different boyfriend, Soto.
During the night of November 25, 2007, Zuniga, Johnson, Handwerk, Robert, Jackie, and Benavidez were in the Dunsons' apartment. Everyone except Zuniga smoked methamphetamine at that time. After they smoked, Jackie, Robert, and Benavidez were in the living room; Handwerk laid down on a bed in the kitchen; and Zuniga and Johnson were sitting on the bed talking to each other. Zuniga was not participating in the conversation taking place among Jackie, Robert, and Benavidez, and did not hear anything about robbing someone. Zuniga and Johnson then went to the upstairs apartment. He was not aware of a conspiracy to rob anyone.
About one and one-half hours later, Johnson woke him up and asked about a commotion downstairs. Zuniga heard Benavidez say: "Oh fuck, Robert. Oh, fuck, Robert." He heard a commotion lasting about five minutes. It sounded like someone was being thrown around and slammed against a wall. Zuniga thought that Benavidez was getting beat up. He and Johnson stayed in their upstairs closet.
Handwerk came upstairs and told Zuniga that Robert wanted him to go downstairs. Handwerk was holding onto his hand and appeared scared. He told Zuniga, "Robert's all fuckin' crazy right now" and "Don't fuck with him." Handwerk said he thought he broke his wrist and "some guy's ribs."
After Zuniga and Johnson argued about whether Zuniga should go downstairs, Zuniga stayed upstairs. About 15 or 20 minutes later, Handwerk returned, this time with Benavidez. Benavidez appeared scared. Handwerk told Zuniga that Robert wanted him and Johnson to go downstairs. Zuniga said he would go, but not Johnson.
When Zuniga, Handwerk, and Benavidez got downstairs, Handwerk and Benavidez ran out through a back gate. When Zuniga caught up with them, Handwerk told him that Robert "just kept on fuckin' hitting that fool." Zuniga and Handwerk walked back to the apartment; Benavidez kept on walking away.
When Zuniga entered the apartment, he saw a man lying on the couch with a bag over his head and red tape around the bag. Zuniga thought the man was dead.
Robert told Zuniga to get Johnson. Zuniga left and began to run away from the apartment through the back gate. Then he remembered Johnson, and went back to get her. As he came back through the gate, he saw Robert dragging the victim towards the back alley. Jackie then drove an SUV into the alley. Handwerk was in the front passenger seat. Handwerk got out of the SUV and opened the back gate. Robert, with the help of Jackie and Handwerk, put the victim inside the SUV and laid him on the floor. To Zuniga, the man still appeared to be dead.
Robert told Zuniga that Zuniga needed to get in the SUV and go with him, and threatened to "fuck [him] up." Zuniga feared for his and Johnson's lives. Robert told Zuniga nothing would happen to him or Johnson if he went with him. Because of Robert's threat, Zuniga got into the SUV.
Robert then drove the SUV into the desert and onto a dirt road. When they stopped, Robert started pulling the victim out of the car and asked Zuniga for help. Zuniga told him "no," and stayed in the SUV.
After the victim had been pulled from the vehicle, the victim started "running, trying to escape." Zuniga heard the man scream: "'Oh, my God. You're killing me. You're killing me.'" Robert returned to the SUV and showed Zuniga a white T-shirt with blood on it. He then drove the SUV to a location about one-half mile from the Dunsons' apartment.
Zuniga walked back to the apartment. He told Johnson that Robert had "hurt that man." He then went to court. Zuniga explained that he did not take Johnson with him when he left for court because Johnson "had the credit card" and had made a deal with Robert to get money from an ATM.
After his court appearance, Zuniga returned to the Sage Street duplex. He met Johnson and went with her to the Washington Mutual branch. Zuniga knew that Johnson had the victim's bank card and that she had an agreement with Robert to take money from ATMs. As Johnson took money from ATMs, Zuniga became upset because she was "taking more money than she was supposed to." He then walked away from Johnson.
When Zuniga met up with her again, they went to a Quick & Easy store where Johnson took more money from an ATM. They then went "to the dope man's house" and bought methamphetamine. Zuniga then followed Johnson back to the Sage Street duplex because she "had to return something."
When they arrived back at the house, Zuniga saw Robert picking stuff up off the floor, cleaning, and "wiping stuff down." Soto was also there. Zuniga and Johnson then went upstairs and smoked the methamphetamine they had bought.
About seven days after the incident, Zuniga, Handwerk, and Johnson were walking near the Indio library. Johnson had been nagging Zuniga to find out what happened that night. Zuniga told her that "Robert killed that man."
Regarding the photographs showing a man near the ATMs around the time Dobbs's bank card was used to withdraw money, Zuniga testified that he was not the man shown in the photographs and did not own or borrow a hat, jacket, or backpack such as the photographed man was wearing. He said the man was Soto, Jackie's boyfriend at that time.
Zuniga said that he spoke with Childs while they were together in a jail cell, but not about this case. Childs's testimony, he said, was wrong.
3. Zuniga's Police Interview
In April 2009, detectives interviewed Zuniga. His videotaped interview was played for the jury. In the interview, Zuniga initially denied he was at the Sage Street duplex on the night Dobbs was killed. As the interview went on, Zuniga admitted to more and more knowledge of and participation in the events of that night and morning. At one point, he said he was there that night, but did not go downstairs and did not see a man or a vehicle. Later, he said he saw Robert with a man on a couch inside the house and saw the vehicle—a Suburban or Expedition; he took some things out of the vehicle, but "didn't drag no body out" and did not know how the man got out of the house; he was asked to go with Robert, but did not; when Robert returned by himself, Zuniga went with him in the vehicle; and after they dropped off the vehicle, they walked back to the apartments. He said that Johnson "was able to pull money out" with a card, but was not sure who gave her the PIN.
Later in the interview, Zuniga said he watched Robert carry or drag the victim out of the house and into the back of the Expedition. The man had something wrapped around his head and appeared to be dead. When Robert returned, he told Zuniga that he needed someone to help him get rid of the car. As they drove to drop off the car, Robert told Zuniga they "didn't have to worry about nothing," which Zuniga understood to mean that the man was dead. Robert also told Zuniga he was "a firme camarada."
Zuniga eventually told the detective that he did go with Robert in the car with the victim in the back. He began by explaining that Jackie was "a hooker," and Benavidez brought a man from the casino who "was looking for buying sex." After Jackie brought the car into the ally, Robert dragged the victim out of the house and put him into the backseat of the car. The victim had a sheet or bag over his head. Jackie told Zuniga: "'You should go with him.'" Zuniga "jumped in that car" because he was afraid Johnson would get hurt. They drove past the Spotlight 29 casino, out towards the desert, and onto a dirt road. When they stopped, Zuniga stayed in the car while Robert pulled the victim out and "flopped him on the ground." At the time, Zuniga did not know if the man was alive or dead. Robert returned to the car about eight minutes later, and the two of them left. Robert told Zuniga they "don't have to worry about anything anymore." Later, he went with Johnson to get money from a bank and a convenience store. Some time later, Zuniga, Johnson, Jackie, and Robert were in the apartment and saw a news story on television that a "missing man was found . . . somewhere in the desert."
4. Rebuttal
In rebuttal, the prosecution introduced evidence of jailhouse telephone recordings made by Zuniga. In one, Zuniga asked "Maya" to tell "Monica" to have a lawyer come to the jail to see him. He wanted to talk to the lawyer about telling the court that he was an "accessory to murder-after-the-fact," because his involvement was "like disposal only of the body." He also wanted to ask for immunity for his testimony. In a second recorded call, Zuniga spoke to his brother-in-law and said he was being charged with murder and "they" want him to testify against someone. In the third conversation, with an unidentified woman, Zuniga refers to a newspaper clipping that states that "the girl's saying that, that I was the one that went with her to the ATM . . . . [¶] . . . [¶] . . . and that I was the one that was beating him up . . . to get the pin numbers to the dude's fuckin' credit card. [¶] . . . [¶] . . . And that's all bullshit. That wasn't me that did all that."
Detective Patterson testified that he compared Zuniga's booking photograph and the photographs taken at the ATM during the early morning of November 26 and, in his opinion, the features of the persons in the two photographs are consistent. He also compared an ATM photograph with a photograph of Soto (the person Zuniga said is shown in the ATM photograph). The two did not match. B. Discussion
1. Exclusion of Department of Motor Vehicles (DMV) Photograph of Soto
At trial, Johnson testified that Zuniga was the man shown in photographs taken at the savings and loan ATM at 4:54 a.m. on November 26, 2007. Zuniga asserted that the man in the photographs was Jackie's then-boyfriend, Soto. His counsel sought to introduce a DMV photograph of Soto so that the jury could compare it to the ATM photographs. The court initially informed counsel that it would not allow the photograph into evidence on the grounds that the evidence that the person in the DMV photograph was the same person in the ATM photographs was speculative.
Later, after Zuniga testified that the person in the DMV photograph was Soto, Zuniga's counsel again raised the issue of the admissibility of the photograph. The court rejected the argument, stating: "The photograph that you intend to introduce was taken after the incident in the year 2008. It is a frontal photo. It is not a side-view or profile. It doesn't identify the height, the weight, of Mr. Soto by demonstrating it visually. It just identifies it in terms of what the driver's license says. [¶] And it has little probative value, because—well, one really can't compare a full frontal facial with a profile. I understand what your point is, but I disagree with you. I believe it has little probative value. In fact, the state of the evidence is your client has already identified Mr. Soto very clearly as being present in each of the surveillance videos as well as the profile. [¶] So I think that you have your client identifying Mr. Soto. And I'm comfortable with my ruling, so I'm not going to allow that photo to be used. Again, it has little probative value under the circumstances."
On appeal, Zuniga contends the exclusion of the DMV photograph was an abuse of discretion that deprived him of his due process right to present a defense and his right to a fair jury determination of his guilt. We reject these arguments.
In People v. Hall (1986) 41 Cal.3d 826, the court explained that "courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible [citation] unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion [citation]. We recognize that an inquiry into the admissibility of such evidence and the balancing required under [Evidence Code] section 352 will always turn on the facts of the case. Yet courts must weigh those facts carefully." (Id. at p. 834.) The court's ruling is reviewed for an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.)
We have viewed the proffered DMV photograph and the ATM photographs. We agree with the trial court that the photograph of Soto has little, if any, probative value. The DMV photograph is a frontal view of Soto's face. The ATM photographs show a man whose face is hidden in darkness. Only one ATM photograph reveals any discernible facial features; although the figure is still in near-darkness, the photograph provides a profile of the man's face and reveals the shape of his nose viewed from the side. Because the front view of the DMV photograph does not reveal the side view, the DMV photograph is not probative of whether Soto is the man photographed at the ATM. The court did not, therefore, abuse its discretion in excluding the DMV photograph.
If the court did abuse its discretion, the error was harmless. First, because of the nature of the DMV photograph and the ATM photographs, as described above, it is unlikely that the DMV photograph would have aided the jury in any way, let alone produced a different result. Second, even if the DMV photograph could have led jurors to conclude that the DMV photograph and the ATM photographs show the same person, it would establish merely that Soto was at the ATM with Jackie at around 4:50 in the morning of November 26. That fact would have little bearing on the issues concerning Zuniga's guilt. The evidence is undisputed that Zuniga was present—and Soto was not—when Robert proposed to have Benavidez obtain a date for Jackie and then rob the date. Although Zuniga testified he did not hear that conversation, there is no evidence to contradict Johnson's testimony that it did take place. As for the disputed issue whether Zuniga heard Robert's plan and silently agreed to it, evidence that Soto is the one pictured at the ATM on the morning of November 26 is, when viewed in light of the entire record, insignificant. It is also undisputed that Zuniga rode with Robert when Dobbs was taken to the desert and killed and that Zuniga accompanied Johnson the following day when Johnson used Dobbs's bank card to steal money. Whether Soto was at the ATM on the morning of November 26 has little bearing on these matters.
We also reject Zuniga's argument that the exclusion of the DMV photograph deprived him of due process and the right to present a defense. "As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]" (People v. Hall, supra, 41 Cal.3d at p. 834.) Here, Zuniga was permitted to testify that Soto was the person photographed in the ATM photographs, and the court never precluded him from introducing relevant evidence on that point. Although Zuniga was not permitted to introduce the DMV photograph, it is not because the court precluded him from asserting third party culpability as a defense, it was because the DMV photograph was not relevant. Therefore, the court's ruling did not implicate Zuniga's constitutional rights.
2. Failure to Preserve and Provide the Side View Photograph of Soto
During the prosecution's rebuttal case, Detective Patterson testified that he had used a computer program to compare Zuniga's 2009 profile booking photograph with the ATM profile photograph. He explained that the computer program allowed him to see side-by-side images of the two pictures, and then overlay one onto the other to compare the facial features in the images. In his opinion, the features of the two pictures were consistent. A document showing the side-by-side comparison of the two images was admitted into evidence.
On cross-examination, the detective stated that he had obtained a profile booking photograph of Soto and performed a similar comparison of it and the ATM photograph. He had not made that photograph available to the defense. He explained that he did not do so because the two photographs did not match. Nor, he added, did the photographs of Handwerk, Robert, "or other associates."
On redirect, Detective Patterson said he did not turn over the Soto booking photograph to the prosecution. He explained that no one had indicated in testimony or interviews that Soto was involved and, when his comparison of the photograph with the ATM photographs did not match, he eliminated Soto as a suspect.
In a motion for new trial, Zuniga argued that the prosecution wrongfully suppressed and failed to disclose the photograph of Soto Detective Patterson referred to in his cross-examination testimony. The trial court denied the motion stating: "[E]ven if the photo [of Soto] were to have been brought in, this is just simply a person who used the ATM card. It is attended to [sic], if you will, the murder, and the fact that the defendant Zuniga went out to the desert with the murder victim when he was still alive and returned after the murder victim had his throat slit. [¶] . . . [¶] So I just don't believe there would be a probability of a different result in this case in terms of Mr. Zuniga's involvement in the murder of Mr. Dobbs."
On appeal, Zuniga renews his argument that the failure to preserve and provide the defense with the side view photograph of Soto violated his right to due process under Brady v. Maryland (1963) 373 U.S. 83 and California v. Trombetta (1984) 467 U.S. 479, and his rights under California's statutory discovery provisions. (See § 1054 et seq.) We reject the arguments.
With respect to Zuniga's Brady and statutory discovery claims, Zuniga merely states that "[i]t is respectfully submitted that law enforcement's failure to provide to the defense a copy of the side-view photo of Soto was a violation of" his rights under Brady and the state criminal discovery statute. He does not present any meaningful argument to support his assertion.
Under Brady, "'the prosecution has a duty to disclose to a criminal defendant evidence that is "'both favorable to the defendant and material on either guilt or punishment.'" [Citations.] The prosecution's withholding of favorable and material evidence violates due process "irrespective of the good faith or bad faith of the prosecution." [Citation.]' [Citation.] 'For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness.' [Citation.] '[The] touchstone of materiality is a "reasonable probability" of a different result . . . . The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."' [Citation.]" (People v. Williams (2013) 58 Cal.4th 197, 255-256.)
Here, Zuniga fails to establish that the side view booking photograph of Soto was favorable to him in any way. Detective Patterson testified that his comparison of the photograph with the ATM photographs led him to conclude that Soto was not the person photographed at the ATM and not a suspect in the case. This does not help Zuniga. For the same reason, Zuniga has failed to establish that the undisclosed photograph was material. To the extent that Zuniga is asserting that disclosure of the photograph may have led the jury to a conclusion different from the one reached by Detective Patterson, it is based on speculation. But "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." (People v. Hoyos (2007) 41 Cal.4th 872, 877.) Accordingly, we reject Zuniga's Brady argument.
Section 1054 et seq. sets forth the procedure for discovery in criminal cases in California. Under this statutory scheme, the prosecutor must disclose, among other things, the names and addresses of persons the prosecutor intends to call as witnesses at trial, all relevant real evidence of the charged offenses, the existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial, any exculpatory evidence, and relevant written or recorded statements of witnesses whom the prosecutor intends to call at trial or reports of such statements. (§ 1054.1, subds. (a), (c), (d), (e), (f).) Zuniga has failed to establish that the Soto booking photograph was exculpatory in any way or that the prosecution violated any of the statutory requirements. We therefore reject this claim.
Under California v. Trombetta, supra, 467 U.S. 479, law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence "that might be expected to play a significant role in the suspect's defense." (California v. Trombetta, supra, at p. 488, fn. omitted; accord, People v. Beeler (1995) 9 Cal.4th 953, 976.) To fall within the scope of this duty, the evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (California v. Trombetta, supra, at p. 489; People v. Beeler, supra, at p. 976). The state's responsibility is further limited when the defendant's challenge is to "the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." (Arizona v. Youngblood (1988) 488 U.S. 51, 57.) In such cases, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. (Id. at p. 58; accord, People v. Beeler, supra, at p. 976.)
Zuniga argues that Detective Patterson "must have . . . been aware of the significance of the photo to [his] defense and should have preserved and produced it as discovery." However, he does not provide any citation to the record for this statement or explain why the detective must have been aware of the defense that Soto was the person shown in the ATM photographs at the time the detective had the Soto booking photograph. Indeed, it is not clear from our record when the detective had the photograph, performed the comparison with the ATM photograph, or learned that Zuniga would assert that Soto was at the ATM with Jackie.
Regarding the bad faith requirement, Zuniga acknowledges that he "cannot directly prove that the detective purposefully withheld the photo from the defense," but "submits that bad faith can be implied from the failure to preserve the evidence once its existence and materiality have been recognized by law enforcement." We cannot make the suggested inference. Detective Patterson testified that he compared Soto's booking photograph with the ATM photograph and concluded there was no match. This indicates that Detective Patterson did not recognize that the Soto photograph was material. We have not been referred to any citation in the record to suggest otherwise. Because we have no basis for concluding that law enforcement recognized the materiality (if any) of the photograph to Zuniga's defense, we cannot infer that it acted in bad faith. We therefore reject Zuniga's Trombetta argument.
3. Conspiracy Instruction
Zuniga contends the court erred in instructing the jury that he could be found guilty based on an uncharged conspiracy to commit robbery. An uncharged conspiracy, he asserts, "is not a valid theory of criminal liability in California as a matter of law . . . ." More specifically, he asserts that conspiracy is a substantive crime (see § 182); if, as here, the accused is not charged with the crime of conspiracy, his liability for the crime of which he is charged must be based on the theory that he is an actual perpetrator or an aider and abettor of the charged crime (see § 31), and it is error to instruct on the theory of conspiracy.
Section 31 provides: "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed."
As the Attorney General points out, our state Supreme Court has recently rejected the same argument in People v. Valdez (2012) 55 Cal.4th 82. There, the defendant asserted that "the trial court erred in allowing the prosecution to proceed on an uncharged conspiracy because, under the statutory definition of principal (§ 31), 'participation in a conspiracy alone is not an authorized basis for finding a person guilty of any offense other than conspiracy, a crime also defined by statute. (§ 182.)'" (Id. at pp. 149-150.) The court rejected the argument, stating: "Our decisions have 'long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] "Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory [citations]." [Citation.]' [Citations.]" (Id. at p. 150.) The court further explained that, "'like aiding and abetting, conspiracy (as used here) is itself a theory of liability. . . . "For purposes of complicity in a cofelon's [criminal] act, the conspirator and the abettor stand in the same position." [Citation.] . . . .' [Citations.]" (Ibid.)
Zuniga does not mention or attempt to distinguish Valdez. Moreover, the Supreme Court recently reaffirmed this point in People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1200-1201, a case decided after the parties filed their briefs in this case. In light of these decisions, we reject Zuniga's argument.
4. Joinder
In his opening brief, Zuniga includes a single sentence stating that he joins in all issues and arguments raised in the briefs of his co-appellants, i.e., Handwerk, Benavidez, and Jackie. Because he was tried separately from the others, it does not appear that the arguments raised by the other parties are applicable to Zuniga. Moreover, Zuniga makes no attempt to show how any error claimed in the briefs of his co-appellants has prejudiced him in any way. With one exception, we therefore decline to consider his joinder argument. (See People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11 [although joinder is broadly permitted, "each appellant has the burden of demonstrating error and prejudice"].) The exception is the erroneous inclusion in the court's sentencing hearing minute order and abstract of judgment of a parole revocation fine under section 1202.45. For the same reason that this fine is improper as to Benavidez, Handwerk, and Jackie—the sentence does not permit the possibility of parole—the fine is improper as to Zuniga.
IV. DISPOSITION
The orders imposing parole revocation fines are vacated. The court is directed to amend the minute orders and abstracts of judgment to reflect that there shall be no parole revocation fine. With respect to Benavidez, Handwerk, and Jackie (1) the court shall hold a sentencing hearing to determine whether there are compelling and extraordinary reasons to not impose a restitution fine; and (2) amend the minute orders and abstracts of judgment to reflect (a) that the direct victim restitution obligation is joint and several among defendants, and that such restitution is not a fine or fee, and (b) the court's determination as to the imposition of a restitution fine under section 1202.4, subdivision (b). The clerk of the court is directed to forward a copy of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
Acting P. J.
We concur: MILLER
J.
CODRINGTON
J.