Opinion
C043119.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. GAVINO IVAN ESPARZA, Defendant and Appellant.
A jury convicted defendant Gavino Ivan Esparza of four counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) [undesignated statutory references are to the Penal Code]), and rendered a special finding that he personally used a dangerous and deadly weapon to wit: an automobile, in committing the crimes (§ 1192.7, subd. (c)(23)).
The jury also acquitted defendant of participation in a street gang (§ 186.22, subd. (a)) and found not true a special allegation that his crimes were committed with specific intent to promote or assist criminal conduct by gang members (§ 186.22, subd. (b)(1)).
Sentenced to six years in state prison, defendant appeals. He contends reversal of his convictions is mandated for lack of sufficient evidence corroborating the out-of-court statements of his accomplices (§ 1111). He also claims the trial court failed to instruct the jury that the corroboration requirement applied to the personal use allegation as well as the substantive offense with which he was charged.
Finding merit in neither contention, we affirm.
BACKGROUND
On May 26, 2001, Jorge Vasquez was driving his 1994 Ford Mustang near the Roseville Galleria mall. He had three passengers in the car with him. As he was making a right turn at a red light at the corner of Taylor and Eureka Roads, Vasquez was rear-ended by a black Mustang. Vasquez pulled over onto the shoulder and stopped. The driver of the other Mustang then backed up and hit Vasquezs car again.
Vasquez wrote down the license plate number of the car and hailed a police officer. He told the officer that four Hispanics in a black Mustang had hit his car. The occupants of the other vehicle were yelling and "throwing gang [hand] signs."
Within minutes of the police dispatch bulletin, Roseville Police Officer Scott McCartney saw a black Mustang with four male occupants, spinning its tires at a high rate of speed near the corner of Eureka and Atlantic. McCartney tried to pursue the Mustang, but lost sight of it. He then heard via radio that the Mustang had been spotted in an AM/PM gas station parking lot on Douglas Boulevard.
A bystander near the AM/PM saw four late-teen Hispanics running from the Mustang just before the police arrived. She gave the officers physical descriptions of the men.
Within minutes, the police had four male suspects, including defendant, in custody. The other three suspects were Douglas Largaespada, Edwin Gonzales and Esteban P., a minor. The four males were brought before Vasquez, who immediately identified them as the occupants of the Mustang that rammed his car. While Vasquez did not identify the driver, he placed Gonzales in the front passenger seat and recognized Largaespada as another passenger.
The officers interviewed Esteban P. at the scene. After waiving his Miranda rights, he told the officers he was in the rear passenger seat, and indicated that defendant was the driver. Gonzales also gave a statement to the officers. He described the altercation with the other Mustang as a gang confrontation, and said that after a period of shouting and flashing of gang signs, defendant, who was driving, rammed his Mustang into the other car.
Gonzales, Esteban P., and Largaespada were all prosecuted as a result of the ramming incident, with Gonzales and Largaespada pleading guilty to assault with a deadly weapon. On the witness stand Gonzales and Largaespada, while admitting their gang affiliations, professed not to remember who was driving the Mustang during the ramming incident. Esteban P. also testified, admitting he was in the car but denying that defendant, whom he claimed not to know or even recognize in the courtroom, was in the car. Esteban stated that he did not remember who was driving the Mustang, but said that it was neither he nor defendant.
APPEAL
I
Sufficiency of Corroboration Evidence
Defendant seeks reversal of his conviction of all four counts of assault with a deadly weapon (ADW) on the ground that there was insufficient evidence of guilt apart from the uncorroborated out-of-court statements of his accomplices. While not disputing the sufficiency of independent evidence that he was one of the four men in the Mustang which rammed Vasquezs car, defendant asserts that because the jury found he personally used a car as a dangerous weapon, his status as a perpetrator, i.e., driver of the car, needed to be corroborated, and it was not. His theory does not square with existing law.
Section 1111 provides, in pertinent part: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."
It is settled that the term "testimony" as used in this section may also include inconsistent out-of-court statements, such that a conviction may not be upheld based solely on the uncorroborated extrajudicial statements of an accomplice made "under suspect circumstances," such as those given while under police interrogation. (People v. Jeffery (1995) 37 Cal.App.4th 209, 218.)
Section 1111 defines accomplice "as one who is liable to prosecution for the identical offense charged against the defendant . . . ." Here, the court advised the jury that, as a matter of law Gonzales, Largaespada, and Esteban P. were accomplices, and that their out-of-court statements implicating defendant needed to be corroborated in order to convict him of the charged crime.
Defendant has no quarrel with the correctness of the accomplice instructions. He also concedes there is sufficient independent evidence in the record to connect him with the offense of ADW. His claim is that because the jury also found true the special allegation that he personally used an automobile in committing the crime (§ 1192.7, subd. (c)(23)), there must be independent corroborating evidence of his identity as the driver; this is true, according to defendant, because the jurys verdict presupposes his liability as a perpetrator and precludes liability as an aider and abettor.
Defendants hypothesis is fundamentally flawed. First, section 1111 has no application to personal use findings. "[S]ection 1111, requiring corroboration, applies by its terms to `conviction of an `offense." (People v. Maldonado (1999) 72 Cal.App.4th 588, 597 (Maldonado).) Thus, the statutory corroboration requirement applies only to substantive crimes.
Section 1111 refers to an "offense," a term which the Penal Code uses interchangeably with "crime." (See § 15.) As the jury were properly instructed in this case: "To corroborate the testimony of an accomplice, there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation, or direction from the testimony of the accomplice tends to connect the defendant with the commission of the crime charged." (Italics added; see CALJIC No. 3.12 (6th ed. 1996).)
Section 1192.7, subdivision (c) does not define a separate offense, but rather is a penalty provision. Its only purpose is to "prequalify" a conviction as a serious felony for purposes of subsequent sentencing under the Three Strikes Law. (See § 969f; People v. Leslie (1996) 47 Cal.App.4th 198, 204.) Defendant does not cite, nor are we aware of any statutory or case authority extending section 1111s corroboration requirement to a penalty provision.
"[A] penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. [Citations.]" (People v. Bright (1996) 12 Cal.4th 652, 661.)
Even if we accepted, for the sake of argument, defendants assertion that the personal use finding under the facts of this case became an "element" of the offense of ADW, the corroboration requirement was still satisfied.
"The evidence necessary to corroborate accomplice testimony need only be slight, such that it would be entitled to little consideration standing alone. [Citation.] It is enough that the corroborative evidence tends to connect defendant with the crime in a way that may reasonably satisfy a jury that the accomplice is telling the truth. [Citation.]" (People v. Navarez (2002) 104 Cal.App.4th 1295, 1303.) "Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1271.)
Since corroborative evidence may be slight, circumstantial, and need not support every element of the charged crime, it follows that such evidence need not implicate the defendant as a perpetrator of the crime. Here, defendants identification by the victim as one of the four men in the vehicle who struck his car was ample evidence to connect him to the charged offense of ADW. Nothing more was required.
The fallacy of defendants assertion that a conviction of ADW coupled with a true personal use finding requires corroborative evidence of his identity as the driver is revealed in Maldonado, supra, wherein the Court of Appeal rejected the defendants claim that a special finding of gun use had to be reversed because it was predicated solely on accomplice testimony. Said the court: "[E]ven if a true finding of a gun use enhancement depends exclusively upon the testimony of an accomplice, the corroboration requirement has already satisfied the statutory purposes of establishing the credibility of the accomplice while connecting the particular defendant to the commission of the crime. Unless the defendant has been properly convicted of the underlying offense under corroborated accomplice testimony, the question of personal use of a firearm for enhancement purposes never arises. But when a defendant has already been found guilty of the underlying offense, the accomplices credibility as to additional details of the crime, such as which participant used a gun, has at that point been supported by independent corroboration connecting the defendant to the commission of the crime. There is no reason why the trier of fact should not then believe the accomplices evidence as to the detail of gun use without requiring further specific independent corroboration on that point." (Maldonado, supra, 72 Cal.App.4th 588, 598, italics added.)
This reasoning applies with equal force to the case at bar. Under the instructions given, the jury had no occasion to even consider the personal use finding unless it first found defendant guilty of ADW. Once it determined his guilt of the charged crimes upon sufficient and corroborated evidence, the requirements of section 1111 were satisfied. The jurors were then free to make the further finding that defendant was the driver of the car based solely on the extrajudicial statements of his accomplices, without the need of additional evidence.
II
Instructional Error
Defendants only other contention is that the trial court erred in failing, sua sponte, to instruct the jury that the corroboration requirement applied not merely to the charged crimes, but to the special allegation that defendant used a dangerous and deadly weapon.
The claim is easily dismissed because the proposed instruction would not have correctly stated the law. As shown previously, section 1111 applies only to substantive crimes. There is no requirement in the law that a special use finding which triggers a penalty provision be independently corroborated. A trial court has no sua sponte duty to give erroneous instructions.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., RAYE, J.