Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA269758. Robert J. Perry, Judge.
Marilee Marshall & Associates, Inc., Marilee Marshall, and Jennifer Peabody for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Michael Finley (defendant) of murder in violation of Penal Code section 187, subdivision (a) (count 1) and residential burglary in violation of section 459 (count 2). The jury found true the special-circumstance allegation that defendant committed the murder while engaged in a burglary. (§ 190.2, subd. (a)(17).) With respect to the burglary, the jury found true the allegations that a principal personally and intentionally discharged a firearm proximately causing great bodily injury and death to the victim (§ 12022.53, subds. (d), (e)(1)) and that the burglary was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). With respect to the murder, the jury found that a principal personally and intentionally discharged a handgun causing great bodily injury and death within the meaning of section 12022.53, subdivisions (d) and (e)(1) but found untrue the allegation that the murder was committed for the benefit of a criminal street gang.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to state prison for life without the possibility of parole (LWOP) and one year for an armed principal enhancement pursuant to section 12022, subdivision (a)(1). The burglary sentence was stayed pursuant to section 654.
Defendant appeals on the grounds that: (1) the admission of defendant’s statements to law enforcement violated his Fifth and Fourteenth Amendment rights to due process of law; (2) insufficient evidence supported defendant’s LWOP sentence under the felony-murder special circumstance because the jury failed to find that defendant, as an aider and abettor, acted with intent to kill or that he was a major participant who acted with reckless disregard for human life; (3) the trial court’s failure to instruct the jury that a key witness was an accomplice as a matter of law lessened the prosecutor’s burden of proof in violation of defendant’s Fifth, Sixth, and Fourteenth Amendment rights to due process and a fair trial; (4) the prosecutor engaged in prejudicial misconduct during closing argument; (5) the trial court’s imposition of a court security fee pursuant to section 1465.8 violated the constitutional prohibition against ex post facto laws and the statutory prohibition against the retroactive application of criminal statutes; and (6) cumulative error requires reversal.
FACTS
Prosecution Evidence
Dedrick Egger (Egger) was the manager of an apartment building located on 62nd Place in Los Angeles. On the afternoon of December 26, 2001, several members of the Six Deuce Brims gang were congregating at Egger’s building. The group included Christopher “Baby Deuce” Clark (Clark), Stephon “N-Bane” Collier (Collier), Travell “Wolfie” Addison (Addison), and defendant (also known as B-Bug).
Clark testified at trial that defendant and Addison proposed to “hit a lick,” which was slang for robbing or stealing. When Clark and Collier appeared to be reluctant, defendant and Addison mocked them, calling them “bitches” and “punks.” Clark and Collier then joined in.
The group went to Egger’s apartment where Addison pulled the security door from its hinges and kicked in the wooden door. Clark ran inside and came out with a television set. Collier also grabbed something and ran outside. Addison went from room to room picking up leather jackets. Defendant stayed outside by the gate, “looking.” Clark and Collier took their loot across the street and put it next to some bushes and trash cans. Defendant announced that Egger was coming and told them to get out. Clark and Collier ran down the street and into an alley. Clark then heard several gunshots.
Renee Warren (Warren), Collier’s mother, lived nearby. She heard six gunshots at approximately 6:00 p.m. When the shooting stopped, she called 911 and then ran outside. She heard someone calling out that he had been shot, and she was afraid it was her son. Warren saw defendant, Addison, and a female walking through the gate of Egger’s apartment complex. Defendant had a red leather jacket, and the other man had a grocery cart with a computer monitor in it. Warren asked the individuals if anyone had seen Collier, and Addison said that Collier left with Baby Deuce. Warren watched as defendant and Addison casually crossed the street. There was no one else in the vicinity. Warren remained outside near the apartment-building gate until the ambulance arrived, and she did not leave the scene until the ambulance left. Warren did not give a statement to police officers that evening, but she spoke with detectives when Collier turned himself in to police. Collier eventually received a prison sentence for his participation in the crimes.
Officer Ruben Lopez of the Los Angeles Police Department responded to the scene and found Egger lying on the ground. He was bleeding and asking for help. Egger said he had been shot by a Black male who had given Egger problems in the past. The shooter left in a white Chevrolet Caprice. Officer Lopez called for paramedics. Egger later died of multiple gunshot wounds.
Officer Lopez saw that the doors to the apartment had been pried open and the interior had been ransacked. As the evening wore on, Officer Lopez noticed a white Chevrolet Caprice pass by with three people inside. He obtained the license plate number but did not stop the car. Of the 31 fingerprints lifted from the scene, none matched defendant or the other suspected perpetrators.
Egger’s stepfather, Renaldo Madrid (Madrid), arrived at the scene. He saw that Egger’s SUV was still running with the lights on. The metal security door to Egger’s apartment had been pulled off and the apartment had been ransacked. Madrid noticed that a television, computer equipment, a “boom box,” and several leather jackets were missing.
Detectives William Fallon and George Diaz twice interviewed Clark about the crimes. A tape of their second interview with Clark was played to the jury. At trial, Clark did not remember telling Detective Diaz that defendant had a gun and shot the victim. He acknowledged that if the recording revealed that he told the detective this, he must have said it. Clark told the detectives that Addison disliked Egger because Egger had hassled Addison about loitering in front of Egger’s building. Clark said that someone named Kimmea Wilson, also known as “Rock the Bell” drove a white Chevrolet Caprice. Clark was in custody at the time of trial because he had failed to show up at a hearing in the case, although the court had ordered him to appear. Clark said he did not want to die for being a “snitch.”
The detectives interviewed defendant on December 12, 2002, and portions of this recorded interview were played for the jury. Defendant initially denied being present at the burglary and shooting. He later admitted to the burglary but denied knowing about the murder.
Sergeant Steve Burciaga testified as a gang expert.
Defense Evidence
Defendant’s father, Roosevelt Finley, testified that approximately a year before the shooting, defendant had moved to Victorville. Before that he had been living in Las Vegas for a time. On cross-examination, he stated that defendant was living in Victorville in 1999.
Deanna Beavers (Beavers) lived next door to Egger. She saw Addison and Clark carrying computer equipment across the street on the day of the shooting. She also saw two other persons whom she did not know. Later, she heard the victim screaming and followed Warren down the stairs. A few days later, Beavers saw Addison with a fresh scratch on his face. Addison and defendant were in Beavers’s living room. Beavers had seen Addison with a gun on prior occasions. Detectives discussed with her the possibility of her moving out of the area.
DISCUSSION
I. Admission of Defendant’s Statement to Police
A. Defendant’s Argument
Defendant contends that the inculpatory portion of his statement was the direct result of false promises of leniency and misleading and incorrect statements of law, and it should have been suppressed. Absent these inducements and misstatements, defendant maintains, he would never have made the inculpatory statements. According to defendant, given the totality of the circumstances, his statements were coerced and his Fifth and Fourteenth Amendment rights were violated.
B. Relevant Authority
“The litmus test of a valid waiver or confession is voluntariness. ‘The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.’ [Citation.]” (People v. Kelly (1990) 51 Cal.3d 931, 950.) “In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576.)
A confession may be involuntary even if Miranda warnings have been given. (Dickerson v. United States (2000) 530 U.S. 428, 444; Miller v. Fenton (1985) 474 U.S. 104, 110.) However, “‘[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was “compelled” despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.’” (Dickerson v. United States, supra, at p. 444.)
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Courts must consider the totality of circumstances in determining whether a statement was voluntary, and no single factor is dispositive. The totality of the circumstances includes such factors as whether there was police coercion, the length of the interrogation, its location and continuity, and the defendant’s maturity, education, physical condition, and mental health. (People v. Massie, supra, 19 Cal.4th at p. 576; People v. Williams (1997) 16 Cal.4th 635, 660–661.)
A confession is also involuntary if it was motivated by a promise of leniency or benefit to the defendant, whether express or implied. “However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. [Citation.]” (People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.)
The prosecution must establish the voluntariness of a confession by a preponderance of the evidence. (People v. Massie, supra, 19 Cal.4th at p. 576.) We review the trial court’s findings as to the circumstances surrounding the confession under the substantial evidence test, but we independently review the trial court’s finding as to the voluntariness of the confession. (Ibid.)
C. Proceedings Below
Prior to trial, defendant filed a motion to “exclude [his] false confession.” The defense contended that Miranda violations and other police abuses caused defendant to give a false confession. The police made express and implied promises of leniency, threats of death penalty filing, and violence.
On October 24, 2006, the trial court tentatively ruled that “there were some implied promises of leniency that influenced the defendant ultimately to acknowledge that he was the shooter.” The trial court stated it was inclined to prohibit the playing of the police interview beyond page 125, line 5 of the transcript. After hearing argument, the court adopted its tentative ruling. When defense counsel suggested a different stopping point, the trial court stated that it was drawing the line at page 125 because the defendant denied even fighting with Egger up until that point, and he was therefore not being influenced by any implied promises. It was only later, when the defendant “possibly” succumbed to the implied promise of leniency that the line was crossed.
The prosecutor made the necessary redactions and defense counsel asked for time to review the transcript in order to request additional redactions. The trial court granted counsel permission to address the issue on the following morning. Counsel argued that the initial portion of the statement, up to and including page 24 should have been suppressed because the statements obtained were in violation of Miranda. In addition, counsel argued, implied promises of leniency by the police actually began on page 77 of the transcript and therefore all statements made after that point should be suppressed.
The trial court agreed with defense counsel regarding the first portion of the transcript, and all defendant’s statements up to the point where he waived his Miranda rights were redacted. The trial court did not find it necessary to suppress the statements from page 77 on, stating that “I think it’s clear that the defendant was not being influenced.” The trial court also found that the implied promises in the latter portion were vague, it was questionable whether they really constituted implied promises, and they were clearly not influencing the defendant. The version the trial court agreed to at this time was played for the jury and admitted into evidence.
D. Summary of Interview
The record shows that, after reading defendant his Miranda rights, the detectives began telling defendant that certain persons had placed him at the scene of the burglary, and defendant denied being there. He said he knew about the burglary only from being told by others. The detectives continued to tell him that others had placed him there. Defendant finally admitted that he would hang out with his homeboys in the back of the burglarized apartment. The detectives told defendant more than once that it was his only chance to talk on his behalf. They hinted that things got out of control on the day of the crime, and things happened that weren’t meant.
Defendant acknowledged he had heard around the neighborhood that “that man” “got shot.” The detectives insisted that defendant’s buddies had said he was there. Defendant insisted he was not there. The detectives told him that even Addison had said he was there, and all defendant had to do was give them a reason. Giving them a reason would assist him later on down the road. The detectives provided examples: it was an accident, it was self-defense, things got out of hand, it was a mistake. The detectives said that the mistake people make is not to speak up when they have a chance, and that they later regretted it. The detectives indicated it was defendant’s last chance to say something for himself, and his denials were not helping him. The detectives tried to convince defendant that it would not look so bad if he admitted he did the burglary for profit. In such a case, they said, a person might receive some sympathy, or be provided with training and counseling. They warned him that otherwise he would look like a bad man, and he would not “want to sit up like that.” It was probably a “big accident,” and admitting that would help defendant out. Defendant continued to insist he was not there.
When defendant asked if he was under arrest, Detective Fallon replied that he was—for special-circumstances murder. Detective Diaz said, “You got those cuffs?” Detective Fallon replied, “Yeah.” Defendant asked how he could be arrested for murder when they had been talking about burglary. Detective Fallon said “You would have come to us with that. We . . . tried to give it to you as best we could,” but defendant “took the bad man rap.” Almost immediately there was a pause in the tape.
When the interview continued, Detective Fallon noted that they were back on tape with defendant. They had talked to him approximately 10 minutes prior to re-recording, and defendant had invoked his right to have an attorney. The detectives had told defendant they were going to book him for murder and take him downstairs. Defendant then told them that he was involved in a burglary but did not want to be booked for murder and wanted to rescind his request to talk to an attorney. The defendant said he was willing to talk to them about the crime that occurred on 62nd Place.
When defendant was asked if the above statements by Detective Fallon were correct, he replied in the affirmative. Detective Fallon said, “And that wasn’t said because we made you say it, or coerced you or tricked you into saying that; correct?” Defendant replied, “Yes.” Detective Diaz then read defendant his Miranda rights again and told him that if he chose to talk, he could do so after he was read his rights.
After hearing his rights and saying he understood them, defendant stated that he wanted to talk about what happened. Defendant said that one of his companions (he later specified Collier) suggested burglarizing Egger’s apartment, and Clark kicked open Egger’s door. Defendant said that he, Addison, Clark and Collier went inside. Defendant thought he himself took the computer or the keyboard. They all took the stuff to a vacant lot, and it was gone before they could pick it up as they had planned to do. Defendant said that he did not see the manager return—he saw only the end of his truck. Clark ran across the street towards the manager and defendant heard shots but did not see what happened.
When the detectives insisted that one of the burglars was still inside the apartment when the manager returned, defendant eventually said it was Clark. He then related that he actually saw Clark and Egger fighting, and he saw Clark pull out a gun and shoot Egger about five times in the chest. The officers then changed the tape.
When taping resumed, defendant said that he and his three companions ran away after Clark shot Egger. Defendant and the detectives then talked about the nature of defendant’s communications with Addison, who was in prison.
Defendant admitted knowing that Clark had a gun but said he did not think Clark would shoot. When asked what the guys were going to do if the manager came back, defendant replied, “I guess, try to fight him off and run.” He did not remember anyone saying they would shoot the manager if he returned. Defendant said that if he had needed to shoot someone, he would have shot them in the arm or leg just to slow them down.
Finally, Detective Fallon said that the only problem with defendant’s story was that everyone saw defendant fight with Egger. Detective Fallon said he and Detective Diaz came up with the conclusion that the shooting was an accident that occurred while defendant was trying to get away. Detective Fallon said that everyone who saw the incident said the same thing. Defendant insisted he shot no one. Detective Fallon told defendant the best thing was to help himself and take a hit for it, but it would not be a heavy hit and he could get back to being with his kids and his girl. Detective Fallon urged defendant to be honest, as everyone else had been, and to say it did not happen on purpose. He could then avoid the “major league” and instead be in the “junior leagues.” Detective Fallon continually emphasized Egger’s large size in comparison to defendant. Defendant said he was just burglarizing, and he did not fight with Egger. Detective Fallon insisted the others had said he had. Detective Fallon said that Addison had shown remorse, and that was going to help Addison, just as it would help defendant. Defendant insisted, “I did not fight with him.” This was the last line the jury heard.
E. Statement Properly Admitted
As stated in People v. Cahill (1994) 22 Cal.App.4th 296, “[t]he application of the axiom that involuntary confessions are not admissible is not always a simple matter; the concept of voluntariness is multifaceted and has been described as a ‘potential morass.’ [Citations.]” (Id. at p. 310.) Based upon the totality of the circumstances here, however, we are satisfied that this is not one of the rare cases where, despite valid Miranda waivers, the defendant’s will was overborne. (See Dickerson v. United States, supra, 530 U.S. at p. 444; People v. Massie, supra, 19 Cal.4th at p. 576.)
The record of defendant’s interrogation by Detectives Fallon and Diaz does not reveal a defendant who succumbed to pressure from the officers, but rather a defendant who continually denied being present while also asking questions in a constant attempt to assess how much the officers knew and to learn the sources of their information. The exhortations made by the officers fell within the permissible boundaries of telling defendant that it would be to his advantage to tell the truth, since everyone else involved in the case had done so. The detectives never made an implied promise of leniency in charging or in punishment to defendant. The detectives did not promise to release defendant. The essence of their argument was the “bad man” theory—that defendant would suffer a worse fate if he were seen to have committed the burglary just for fun rather than to steal things for profit. This does not constitute a false promise, since mitigating factors may be considered in sentencing or in plea bargaining. In the instant case, for example, the death penalty was considered in the early stages.
In People v. Garcia (1984) 36 Cal.3d 539, the court found no implied promise of leniency. Garcia, who drove the getaway car in a robbery in which a store clerk was killed, was told that “‘[the trigger man] shot the guy, . . . that’s the price he’s going to have to pay. . . . But there’s no sense you going down the way he is, that, that far down with him, as a trigger man . . . .’” (Id. at p. 546.) The court found this was not an improper inducement to confess, even though Garcia was charged with and convicted of first degree murder with a special circumstance of felony murder. The court reasoned that an accomplice is less likely to receive the death penalty than the shooter, and therefore the benefit of honesty alluded to was a natural consequence. (Id. at p. 547.)
Moreover, defendant steadfastly insisted that he was not at the scene of the crime despite every opportunity given him to admit that he was. As the trial court pointed out, none of the detectives’ statements had any effect on defendant, making it difficult to believe that his will was overborne. (See People v. Williams, supra, 16 Cal.4th at p. 660 [fact that defendant maintained his innocence during most of his interview belies claims that his admissions were the result of police coercion]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 58 [in determining voluntariness of confession, it was significant to finding a lack of coercion that Marlow refused to admit offenses for a lengthy period after being assured his statements could not be used in court].) None of the detectives’ speeches led defendant to cave in and admit that he was a participant in the burglary for a very long time. It is true defendant only agreed to admit to his participation after being told he was to be booked for murder. This was not an empty threat, however, since the detectives clearly intended to do so. As stated in Coffman and Marlow, supra, a defendant’s resistance does not demonstrate a will overborne by official coercion, but rather “a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.” (Id. at p. 58.) As in Coffman and Marlow, defendant’s admissions appeared to be the result of the officers’ continual references to statements made by defendant’s cohorts. (Ibid.)
It is also true that the detectives told appellant falsehoods regarding the amount of evidence they had proving his participation. It has been held, however, that deception alone does not invalidate a confession. (People v. Thompson (1990) 50 Cal.3d 134, 167; People v. Atchley (1959) 53 Cal.2d 160, 171.) “The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 340; see also People v. Thompson, supra, at p. 167.)
The deceptions employed by the detectives here were not of the type likely to elicit an untrue confession from an innocent person. (See In re Walker (1974) 10 Cal.3d 764, 777; People v. Atchley, supra, 53 Cal.2d at p. 171.) The officers’ suggestions to defendant that his admitting to committing the burglary and to fighting with Egger would take him out of the major leagues and might engender some sympathy were vague, and they did not rise to the level of a promise of leniency in exchange for telling the truth. No particular benefit was promised. (See People v. Holloway (2004) 33 Cal.4th 96, 116 [to the extent detectives implied that a statement indicating an accident occurred might help defendant avoid the death penalty, it was merely illustrative of a benefit that naturally flows from an honest account].) In any event, as noted, Detective Fallon’s long dissertation on the subject had no effect on defendant.
Finally, we note that defendant was 23 years old at the time of the interview. The probation report indicates he suffered two prior convictions for the sale of narcotics in 1998 and served time in prison. Defendant was clearly not unsophisticated in criminal matters. The recordings of his interview reveal no harsh language on the part of the detectives, who spoke in a conversational tone. Defendant did not sound nervous or afraid as he matter-of-factly denied being present at the scene. (See People v. Johns (1983) 145 Cal.App.3d 281, 293 [defendant did not “become confused, break down, or lose his general composure” under close questioning and in fact lied repeatedly, which indicates his will was not overborne].) Accordingly, under the totality of the circumstances we conclude that none of the psychological ploys used by the detectives was so coercive as to result in a statement that was involuntary and unreliable. (People v. Ray, supra, 13 Cal.4th at p. 340.)
The interview took place in December 2002. The probation report states defendant was born in June 1979.
F. Any Error Harmless
We also conclude that if it was error to allow the jury to hear those portions of the interview deemed admissible, the error was harmless. (People v. Cahill, supra, 5 Cal.4th at pp. 509–510.) There was ample evidence to support the jury’s finding that defendant was a major participant in the burglary of the victim’s apartment. Warren testified that she saw defendant and Addison leaving Egger’s building with computer equipment immediately after the shooting. Moreover, although Clark’s testimony was equivocal at trial as to the identity of the shooter, he definitely placed defendant at the scene as one of the participants in the burglary. We therefore find the admission of the selected portions of defendant’s interview to be harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Special Circumstance Finding
A. Defendant’s Argument
Defendant contends that the prosecution failed to prove every element of the special circumstance allegation. (§ 190.2, subd. (a)(17).) Because the special verdict form omitted a finding that defendant acted with an intent to kill or with reckless disregard for human life in committing the burglary, the jury failed to find that defendant, as an aider and abettor, had the required mental state. Defendant argues that the constitutional prohibition against double jeopardy prevents the prosecution from retrying defendant on this allegation.
B. Relevant Authority
Section 190.2, subdivision (a)(17) mandates a sentence of death or LWOP where “[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: . . . (G) Burglary in the first or second degree in violation of Section 460. . . .”
C. Jury Finding Sufficient
The record shows that the jury was instructed that in order to prove the special circumstance for a defendant who is not the actual killer but who is guilty as an aider and abettor, the People had to prove that defendant had either the intent to kill or that he acted with reckless indifference to human life. The jury found the special-circumstance allegation to be true for count 1 on a verdict form worded as follows: “We further find the special circumstance allegation that the murder of Dedrick Egger was committed while the said defendant was engaged in the commission of the crime of burglary, within the meaning of Penal Code section 190.2 (a)(17), to be true.”
The jury was instructed as follows on the special circumstance allegation: “If you decide that the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance of murder during commission of burglary, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. [¶] In order to prove this special circumstance for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant was a major participant in the crime; AND [¶] 2. When the defendant participated in the crime, he acted with reckless indifference to human life. [¶] A person acts with reckless indifference to human life when he knowingly engages in criminal activity that he knows involves a grave risk of death. [¶] The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstance of murder during commission of burglary to be true. [¶] . . . [¶] If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that he acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstance of murder during commission of burglary to be true. If the People have not met this burden, you must find this special circumstance has not been proved true.” (CALCRIM No. 703.)
It has been held that special findings are satisfied by the jury’s finding the truth of an alleged special circumstance, and it is unnecessary for the jury to find the facts on which its determination is based. (See People v. Arias (1996) 13 Cal.4th 92, 157; People v. Kaurish (1990) 52 Cal.3d 648, 697; People v. Odle (1988) 45 Cal.3d 386, 416, disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 256; People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 753; People v. Davenport (1985) 41 Cal.3d 247, 273–275.)
An example is presented by the case of People v. Lobato (2003) 109 Cal.App.4th 762 (Lobato). In that case, the defendant was charged with being “substantially involved” in a conspiracy relating to the sale, transportation or possession of methamphetamine that exceeded four kilograms by weight (Health & Saf. Code, § 11370.4, subd. (b)(2)). The verdict form in Lobato omitted a specific finding that the defendant was “substantially involved” in the conspiracy, and Lobato argued that the lack of a finding of substantial involvement constituted reversible error. The Lobato court rejected the defendant’s argument because the jury had been instructed that the defendant must have been “‘substantially involved’” in the conspiracy. (Lobato, supra, at pp. 765–766.) The court stated that, “where the jury is fully instructed as to each element of the enhancement, it is not necessary for the verdict to enumerate each of those elements. [Citation.]” (Id. at p. 766.)
Lobato also concluded that the decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), cited by defendant in the instant case, does not change the conclusion that it is unnecessary for the verdict to enumerate each element of an enhancement finding. Apprendi “does not purport to require any written findings which expressly detail every element of an enhancement. It requires only that the jury find, beyond a reasonable doubt, every element of a sentence enhancement. [Citation.] Having been instructed on the elements of the [] enhancement, we can presume that the jury made the findings as instructed when it found the [] enhancement true. [Citation.] Apprendi does not require anything more.” (Lobato, supra, 109 Cal.App.4th at p. 767.)
We agree with the reasoning of Lobato and conclude that defendant’s arguments that the wording of the verdict form resulted in the absence of a finding that he had intent to kill or that he acted with reckless indifference to human life is without merit.
III. Lack of Accomplice Instruction
A. Defendant’s Argument
Defendant argues that the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 335 and CALCRIM No. 708. The trial court failed to instruct the jury that Clark, the prosecution’s star witness, was an accomplice as a matter of law.
CALCRIM No. 335 would have instructed the jury that, if the crimes charged were committed, Clark was an accomplice to those crimes, and the jury could not convict the defendant of the charged crimes based on the testimony of an accomplice alone. The instruction provides that the testimony of an accomplice may be used to convict the defendant only if the accomplice’s testimony was supported by other evidence that the jury believes, the supporting evidence was independent of the accomplice’s testimony, and the supporting evidence tended to connect the defendant to the commission of the crimes. The instruction provides that any testimony of an accomplice must be viewed with caution but may not be arbitrarily disregarded. The jury members are to give the testimony the weight it deserves after examining it with care and caution and in light of all the other evidence.
CALCRIM No. 708 would have instructed the jury that if the charged crimes were committed then Clark was an accomplice to those crimes, and the jury may not find that the alleged special circumstance is true based on the testimony of an accomplice alone. The jury could use the testimony of the accomplice to convict only if the accomplice’s testimony was supported by other evidence the jury believed, the supporting evidence was independent of the accomplice’s testimony, and the supporting evidence tended to connect the defendant to the commission of the charged crimes. The instruction provides that any testimony of an accomplice must be viewed with caution but may not be arbitrarily disregarded. The jury members are to give the testimony the weight it deserves after examining it with care and caution and in light of all the other evidence.
B. Relevant Authority
Section 1111 prohibits conviction on the testimony of an accomplice—defined by the statute as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given”—unless the testimony is “corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.” (See People v. Tobias (2001) 25 Cal.4th 327, 331; People v. Hayes (1999) 21 Cal.4th 1211, 1270–1271.)
“If there is evidence that a witness against the defendant is an accomplice, the trial court must give jury instructions defining ‘accomplice.’ [Citation.] It also must instruct that an accomplice’s incriminating testimony must be viewed with caution [citation] and must be corroborated [citations]. If the evidence establishes that the witness is an accomplice as a matter of law, it must so instruct the jury [citation]; otherwise, it must instruct the jury to determine whether the witness is an accomplice [citation]. [Citations.]” (People v. Felton (2004) 122 Cal.App.4th 260, 267–268.)
C. Harmless Error
The trial court erred in not giving this instruction, since Clark was clearly an accomplice in this case. We conclude, however that the error was harmless. (See People v. Avila (2006) 38 Cal.4th 491, 562.) “A trial court’s failure to instruct on accomplice liability under [Penal Code] section 1111 is harmless if there is ‘sufficient corroborating evidence in the record.’ [Citation.] To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.]” (Id. at pp. 562–563.)
In People v. Box (2000) 23 Cal.4th 1153, for example, the California Supreme Court found that the defendant was not prejudiced by the failure to give the accomplice instruction because the jury was aware that the accomplice “had every motivation to shift blame” to the defendant. Also, the accomplice’s testimony was corroborated by physical evidence, the defendant’s statement, and the testimony of other witnesses. (Id. at p. 1209.) It was “not reasonably probable that the jury would have reached a result more favorable to defendant had it been instructed to view with care and caution that portion of [the accomplice’s] testimony that inculpated defendant.” (Ibid.)
Here, it is not reasonably probable the jury would have reached a result more favorable to the defendant if it had been properly instructed, since there was sufficient corroborating evidence from nonaccomplices. Defendant admitted that he participated in the burglary along with Addison, Clark, and Collier. Warren testified that she saw defendant and Addison walking away from the shooting scene with computer equipment. This evidence was sufficient to place defendant at the scene of the shooting and to implicate him in the burglary. “‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]’ [Citation.] The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 370; see People v. Felton, supra, 122 Cal.App.4th at pp. 271–272.)
Moreover, the trial court gave the jury guidelines for evaluating the credibility of each witness. These included assessing whether the witness was influenced by the following: bias or prejudice, a personal relationship with someone involved in the case, a personal interest in how the case is decided, any prior consistent or inconsistent statements, the witness’s attitude toward testifying, the reasonableness of the testimony when considered with the other evidence, and whether the witness engaged in other conduct that reflects on his believability. The jury was told, “[i]f you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says.” (CALCRIM No. 226.) Under the circumstances of this case we conclude the trial court’s error was harmless under any standard. (Chapman v. California, supra, 386 U.S. 18; People v. Watson, supra, 46 Cal.2d at p. 836; see also People v. Arias, supra, 13 Cal.4th at p. 143.)We reject defendant’s argument that he was deprived of due process and a fair trial by the omission of the accomplice instructions, and conclude he suffered no prejudice.
IV. Alleged Prosecutorial Misconduct
A. Defendant’s Argument
Defendant contends that a portion of the prosecutor’s rebuttal argument was improper and constituted prejudicial misconduct. According to defendant, the prosecutor bolstered Clark’s credibility by portraying him as someone who testified willingly against defendant in spite of risks to himself and his freedom. Clark, however, had been prosecuted for his participation in the burglary and murder and found not guilty. He therefore suffered no risk by implicating himself. Defendant argues that the prosecution’s suggestion to the contrary was materially misleading and constituted impermissible vouching. Defendant asserts that, absent the prosecutor’s argument, defendant may have obtained a more favorable verdict.
B. Proceedings Below
The argument to which defendant objects occurred during rebuttal argument, when the prosecutor stated, “There’s been some insinuations in closing argument by Mr. Shapiro [defense counsel] that maybe there was some leniency, at least some favoritism because certain people made statements in this case. You didn’t hear any evidence at all in this entire trial that Christopher Clark, Stephon Collier or Travell Addison were in any way given any benefit, given any leniency for anything that was done in this case. And you would have heard that. Mr. Shapiro would have been the first one to jump up and tell you, let me tell you what happened to Mr. Clark. Let me tell you what happened to Mr. Collier. This is what they got for talking. This is what Travell Addison got for talking.”
Defense counsel objected, and the trial court stated to the prosecutor and to the jury, “I think you are going a little far now at this point. The point is made, Ladies and Gentlemen, you are not to be concerned about what happened to others. Just focus on the defendant in this case.”
The prosecutor continued by saying, “As the judge has said, you are not here to speculate what happened to those individuals or what may happen to them in the future. It’s not for you to consider. It’s a nice tactic that was thrown in there.” Defense counsel objected, and the trial court stated, “I think this is argument. I will allow it. Let’s move on.”
Defense counsel included the issue of prosecutorial misconduct as one ground for defendant’s new trial motion, which was denied.
The written new trial motion was not included in the record, but defendant obtained a copy and included it in the Second Supplemental Augment request.
C. Relevant Authority
“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.’ [Citation.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s conduct ‘“that does not render a criminal trial fundamentally unfair”’ violates California law ‘“only if it involves ‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citation.]” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 92.)
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” (People v. Frye (1998) 18 Cal.4th 894, 970.) We consider the statements in the context of the entire argument (People v. Dennis (1998) 17 Cal.4th 468, 522) and the reviewing court may not “‘lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye, supra, at p. 970.)
“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ [the prosecutor’s] comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 971.)
D. No Prosecutorial Misconduct
We conclude the prosecutor’s argument was proper in that it reasonably replied to insinuations made by defense counsel in closing argument. The prosecutor stated in his opening argument that Clark was aware that by coming into court he became a “snitch.” The prosecutor said that Clark would no longer be welcome in his gang and would face death when he returned to the community. There was no objection to this argument.
Defense counsel subsequently argued that the police interview with Clark was a “negotiation.” Counsel stated, “This whole thing is a negotiation. Give us what we want. He says, I want to go home.” He said that Clark was a solid gang member, although the jury had been “sold a bill of goods that this was this—you know, this poor singing violet of a child.” He stated that Clark would have “said anything to get out of there,” referring to his police interview. Defense counsel continued, “Is he trustworthy? Oh, sure. He’s trustworthy. That is why he put him on in Addison’s case. He said something totally different from what he told you. Is he trustworthy? Yes, that is why they had to arrest him to bring him in here. And it’s kind of interesting that he admits committing this crime and yet he’s on the street.” The prosecutor objected, and the trial court instructed the jury not to speculate on what happened, if anything, to Clark.
The prosecutor’s closing argument was clearly referring to defense counsel’s implication that Clark had received favorable treatment as a result of his “negotiation.” A prosecutor may make otherwise prejudicial argument, within proper limits, to rebut defense counsel’s argument. (People v. McDaniel (1976) 16 Cal.3d 156, 177; see People v. Hill (1967) 66 Cal.2d 536, 560–562.) Considered in context, the prosecutor’s remark constituted legitimate rebuttal. The prosecutor was not attempting to bolster the veracity of Clark’s testimony by referring to evidence outside the record or in any way placing the prestige of his office behind Clark by offering the impression that he had taken steps to assure Clark’s truthfulness at trial. (See People v. Coffman and Marlow, supra, 34 Cal.4th at p. 92.) And it is not reasonably probable that the jury understood the prosecutor’s remark as an indication that such improper vouching had occurred. (People v. Frye, supra, 18 Cal.4th at pp. 971–972.)
In any event, the court’s admonition to the jurors, in combination with its earlier instructions that jurors must determine the facts solely from the evidence received at trial and that statements made by the attorneys during trial are not evidence, sufficiently dissipated any potential harm the remark might otherwise have caused. The jury was instructed with CALCRIM No. 226 that they were the sole judges of the credibility or believability of a witness. The jury was told to consider the testimony of each witness and decide how much of it to believe. The jury was instructed to decide the facts using only the sworn testimony of witnesses and the exhibits and stipulations. The court instructed them that nothing the attorneys say is evidence. (CALCRIM No. 222.) As a result, there is no “reasonable likelihood that the jury construed or applied . . . the complained-of remark[] in an objectionable fashion. [Citations.]” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, 1076 overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) There was no unfairness so as to make the conviction a denial of due process, nor any use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 92.)
V. Imposition of Court Security Fee
Defendant contends that, because he committed the offenses before the effective date of section 1465.8, the trial court’s imposition of the section 1465.8 security fee violated the constitutional prohibition against ex post facto laws and the state statutory prohibition against the retroactive application of criminal laws.
We disagree. In the recent case of People v. Alford (2007) 42 Cal.4th 749 (Alford), the California Supreme Court addressed the issue of whether the imposition of a court security fee for convictions concerning crimes that occurred prior to the security fee’s enactment constitutes the application of an ex post facto law. (Id. at p. 752.) The Supreme Court held that the “imposition of the [fee] serves a non punitive purpose,” and accordingly, it “does not violate either federal or state prohibitions against ex post facto statutes.” (Id. at p. 759.) As this court is bound by the decision in Alford, we conclude that defendant’s contention lacks merit. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
VI. Alleged Cumulative Error
Defendant contends that, even if this court were to conclude that the errors he names were not prejudicial individually, their cumulative prejudicial impact is overwhelming and resulted in a denial of defendant’s state and federal constitutional rights to due process of law. He asserts that reversal is required. Since we have “‘either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial,’” we reject defendant’s argument with respect to the cumulative effect of any alleged errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235–1236.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.