Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF174372. James W. Hollman, Judge.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Isaac Thomas Flores (appellant) was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Allegations were found true that appellant personally and intentionally discharged a handgun causing great bodily injury and death (§ 12022.53, subd. (d)), and that he personally used a firearm (§ 12022.5, subd. (a)(1)). Appellant admitted that he had suffered a prior prison term (§ 667.5, subd. (b)). The trial court sentenced appellant to a total term of 51 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant appeals, making four claims of prejudicial instructional error. He claims: (1) the trial court erred in refusing a special defense instruction relating to third party culpability; (2) the trial court erred in failing to instruct sua sponte on accomplice testimony; (3) the trial court erred in failing to give a third party flight instruction; and (4) the trial court improperly instructed that specific intent is a necessary element of second degree murder. We find no prejudicial error and affirm.
FACTS
On November 16, 2006, Stuart Torres and Carmen Guerrero lived together in an apartment with Guerrero’s two daughters. Guerrero admitted that Torres sold methamphetamine and that she had smoked methamphetamine on that date.
According to Guerrero, appellant came to the house twice that day looking for Torres. While he was there, appellant allowed Guerrero to use his cell phone to try and locate appellant. Later, Guerrero was lying on her bed, watching a screen with a live feed from a surveillance camera on the driveway of the apartment, when she saw the lights of a car pull into the driveway and then saw a bright flash. She heard a “big pop” and a scream and saw someone running toward the apartment. Torres ran into the apartment and fell on the floor. Guerrero’s daughters screamed. Guerrero asked Torres who shot him and he told her “Isaac Flores.” M., Guerrero’s daughter, who was 14 at the time of trial, stated that she heard her mother ask Torres who shot him and heard him reply, “Isaac Flores.”
A neighbor, Thomas Booth, heard the gunshot and ran to check on his brother, Christopher Tierce, who was outside. He then went to Torres’s apartment and attempted to help Torres. He asked him who shot him, and Torres responded “Frog.” Booth asked who “Frog” was and Torres said “Isaac Flores.” Torres died in Booth’s arms.
During jury deliberations, a stipulation was read to the jury which stated, “Thomas Booth was interviewed by DA Investigator Kevin Bohl March 5th, 2008, approximately noon.” In response to a juror’s question whether that was his first interview, the trial court responded, “Yes.” When the juror asked whether Booth was questioned by police at the scene, the trial court stated, “That’s all I can tell you. That’s the stipulation.”
Tierce and acquaintance Renea Ramirez witnessed the shooting. Both followed Torres into the apartment after he was shot, but left before police arrived. Tierce, a convicted felon and self-described “associate” of the Norteno gang, denied that he shot Torres, but admitted that he first told police in an interview and in a subsequent lineup that he could not identify the shooter. He later identified appellant as the suspect and testified that he was outside at the apartment complex when he saw and heard appellant and Torres arguing about money. Appellant got out of the car and started to walk toward Ramirez. He then said, “‘You think I’m F’ing playing,’” pulled out a long-barreled gun, and shot Torres. Tierce was afraid he might be killed for testifying and because there were warrants out for his arrest.
Tierce admitted that he was nearsighted and did not have his glasses on at the time of the shooting. The driveway was lit by a single porch light.
Ramirez was on a low wall along the driveway at the apartment complex with Tierce when she saw Torres and someone arguing. Torres was crouched outside a green vehicle, talking to the driver, then came over to where Ramirez and Tierce were. The driver exited his vehicle and approached them. Ramirez heard a shot, but claimed she did not see a gun. Ramirez said she left the scene to tell Torres’s brother what had happened. She admitted that she did not immediately go to the police because she figured “they would find me.” Ramirez, who was with Torres when he was dying, did not hear him say anything.
Torres’s sister, Mary Louise, took Torres to the store just before the shooting. When they returned, she saw a green car parked in front of the complex. The driver of the car wore glasses and a hood. There was another person, never identified, who was on the passenger side of the car. Torres got out of her car, and Mary Louise remained behind in her parked car in the apartment carport to make a telephone call when she saw the driver of the green car get out and pull out a gun. She heard a shot and saw her brother grab his side. She followed the shooter, who fled in his car. She tried to remember the car’s license number, but had to give up the chase. She told an officer that the license number included “MVP or 224 or 442.”
Detective Fred Ynclan investigated the shooting death of Torres. The bullet recovered from Torres’s chest appeared to be.22-caliber or smaller. No bullet casings were found at the scene. Torres’s body was found to be positive for methamphetamine, which did not contribute to the cause of death, and two small packages of methamphetamine were found in the pants he was wearing at the time of his death.
The day after the shooting, Detective Ynclan put a green Ford Focus, thought to be linked to appellant, under surveillance. At one point, Ynclan spotted appellant running through an intersection near the Ford Focus. The detective knew appellant from prior police contacts and knew his nickname was “Frog.” Detective Ynclan followed appellant, who emptied his pockets of a pipe and a cell phone as he ran. Ynclan ordered appellant to the ground and arrested him.
After being read his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights, appellant told officers his nickname was “Frog,” that he drove a green Ford Focus, and that he had been at Torres’s house on the 16th trying to purchase drugs. When asked why he was running, appellant said he was at his girlfriend’s house when he got word that someone was trying to kill him. He denied killing Torres, but said that both he and Torres were considered Norteno dropouts.
During the investigation, Guerrero told an investigating officer that Torres had previously been confronted or “hit-up” by an individual named Nick Robles because Torres dropped out of the gang. Guerrero said the encounter “stressed” Torres. Mary Louise Torres told an investigating officer that her brother, after an encounter with some “boisterous” individuals, had told her he was a “northern dropout.”
DISCUSSION
1. Third Party Culpability Instructions
Appellant argues that the trial court erred by refusing to give an instruction requested by the defense on third party culpability. According to appellant, there was evidence that Tierce and/or Ramirez had a gang-related motive to assassinate Torres, a Norteno dropout: Tierce through his own gang affiliation and Ramirez through her allegiance to Tierce. And appellant argues both Tierce and Ramirez showed a consciousness of guilt when they fled the scene before police arrived. Appellant further claims that the court’s action violated his due process right to present a meaningful defense under the guarantees of the Fourteenth Amendment to the United States Constitution. We disagree.
The third party culpability instruction that appellant requested would have read as follows:
“Evidence has been offered that a third party is the perpetrator of the charged offense. It is not required that the defendant prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal, it is only required that such evidence raise a reasonable doubt in your minds of the defendant’s guilt.”
The proposed instruction is included in the record among the “refused/withdrawn” instructions, and appellant acknowledges that the record contains no discussion of the instruction or the reason for not giving it.
Before an instruction on third party culpability may properly be given, there must be substantial evidence capable of raising a reasonable doubt about the defendant’s guilt, and there must be direct or circumstantial evidence linking the third party to the crime. Evidence bearing on nothing more than a third party’s motive or opportunity to commit the crime is insufficient to raise a reasonable doubt concerning the defendant’s guilt. (People v. Prince (2007) 40 Cal.4th 1179, 1242.)
The proffered defense theory was that appellant did not commit the murder. Defense counsel argued that appellant left the scene before the shooting. The actual shooter drove up with a passenger in a similar car, similar color, a few minutes later and that the “mysterious individual in the hooded jacket or sweater” got out of the car, shot Torres and fled the scene. Defense counsel also mentioned several individuals who had “in the past tried to harm the decedent” but had not been questioned by the police. But nowhere in the defense closing argument did defense counsel suggest or even imply that Tierce or Ramirez may have been the actual shooter.
Assuming for the sake of argument that the trial court erred in refusing to give this instruction, the trial court’s error was not prejudicial. In People v. Earp (1999) 20 Cal.4th 826, the California Supreme Court assumed without deciding that the trial court erred in refusing to give an instruction virtually identical to the one requested by appellant in this case. The court found that the error was harmless because the jury was instructed that the prosecution had to prove the defendant’s guilt beyond a reasonable doubt, and the jury knew from defense counsel’s argument that the defendant was contending that another person had committed the crimes. (Id. at p. 887.) The situation is the same here. We likewise find any error by the trial court harmless.
Furthermore, we do not agree with appellant that the failure to give this instruction denied him his right to present his theory of defense and so violated his federal constitutional rights. Appellant was permitted to present evidence and to argue that someone else killed Torres. Thus, appellant was able to present his defense.
2. Accomplice Instructions
Appellant next claims the trial court erroneously failed to instruct the jury, sua sponte, that Tierce and Ramirez were potential suspects in the shooting and that their testimony therefore required corroboration and should have been viewed with suspicion. Specifically, appellant contends that the trial court erred by failing to instruct the jury with CALCRIM No. 334, which would have provided the jurors with a definition of an accomplice, informed them that accomplice testimony that tends to incriminate the defendant should be viewed with caution, and that a conviction based on an accomplice’s testimony requires corroboration. We find no error.
An accomplice is a person “who is liable to prosecution for the identical offense charged against the defendant.” (§ 1111.) If there is evidence to permit a jury to find by a preponderance of the evidence the witness was an accomplice, the trial court must instruct the jury that the witness’s testimony should be viewed with distrust and that the testimony cannot support a conviction absent corroboration. (People v. Hernandez (2003) 30 Cal.4th 835, 874; People v. Tobias (2001) 25 Cal.4th 327, 331 [“‘[w]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,’ including the need for corroboration”]; see CALCRIM No. 334.) On the other hand, “‘“[I]f the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony.”’” (People v. Hinton (2006) 37 Cal.4th 839, 879.)
Appellant contends that Tierce and Ramirez’s testimonies triggered the trial court’s obligation to instruct the jury regarding accomplice testimony because the jury could reasonably have deemed either to be an accomplice. Respondent argues that the trial court had no such obligation because there was no evidence that either Tierce or Ramirez had any knowledge of or intent to aid or encourage appellant’s shooting of Torres or that either one of them was the shooter. We agree that there was no evidence that either Tierce or Ramirez was an accomplice. Appellant did not claim at trial that Tierce or Ramirez helped him commit the crime, nor was there evidence they were working together, or that either Tierce or Ramirez shot Torres.
In any event, any error was harmless. The failure to instruct the jury regarding accomplice testimony is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837. (People v. Avila (2006) 38 Cal.4th 491, 562; People v. Hinton, supra, 37 Cal.4th at p. 881; People v. Lewis (2001) 26 Cal.4th 334, 371.) Any error in failing to provide such instruction does not warrant reversal unless there is a reasonable probability that the error influenced the jury’s verdict. (Ibid.)
Here, there is no reasonable probability that the jury’s verdict would have been any different had the trial court given instructions regarding accomplice testimony. An instruction advising the jury to view Tierce or Ramirez’s testimony “that tend[ed] to incriminate the defendant” with caution, and requiring corroboration, however “slight,” of such testimony (CALCRIM No. 334), would have had little effect given that others at trial also helped to establish appellant’s guilt. Guerrero, Booth, and Guerrero’s daughter all testified that Torres said, as he was dying, that appellant shot him. Torres’s sister saw someone shoot appellant and was able to give officers information concerning the shooter’s car. Appellant was subsequently apprehended after a car matching Torres’s sister’s description was placed under surveillance. The prosecution’s case, even without Tierce or Ramirez’s testimony, included powerful evidence that appellant shot Torres.
In addition, although not specifically instructed to discount Tierce or Ramirez’s testimony, the jury was instructed with respect to factors to consider in evaluating witness testimony, including whether the witness’s testimony was “influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided” as well as “anything that reasonably tends to prove or disprove the truth or accuracy of [the witness’s] testimony.” (CALCRIM No. 226.) Thus, to the extent the point was not readily apparent without instruction, these factors suggested that Tierce or Ramirez’s potential complicity in appellant’s crime was a factor to be considered in determining their credibility.
In sum, given the independent evidence establishing appellant’s guilt, as well as the instructions the jury did receive, we conclude that there is no reasonable probability that the absence of accomplice testimony instruction in any way impacted the jury’s verdict. The challenged instructional omission, if erroneous, was harmless. (See, e.g., People v. Hinton, supra, 37 Cal.4th at p. 881 [error in failing to give accomplice instructions was harmless because “‘the instructions requested would have informed the jury to view [the accomplice’s] testimony with distrust if the jury determined that [the accomplice]—and not defendant—committed the crimes. Any reasonable juror would reach this conclusion without instruction’”]; People v. Avila, supra, 38 Cal.4th at pp. 562-563 [trial court’s failure to instruct on accomplice testimony was harmless due to “‘independent evidence,’ … ‘tend[ing] to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony”].)
3. Additional Flight Instructions
The trial court instructed the jury with the standard instruction covering use of a defendant’s flight as evidence of guilt. Appellant contends that the giving of the instruction on appellant’s flight from the crime scene without giving a similar instruction on witnesses Tierce and Ramirez denied him a fair trial. We disagree.
The instruction provided: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.” (CALCRIM No. 372.)
The trial court has a sua sponte duty to instruct on the effects of flight as it relates to a defendant in a criminal case. (People v. Bonilla (2007) 41 Cal.4th 313, 328; see also § 1127c [requiring instruction where prosecution relies on flight as evidence of guilt].) Such an instruction is proper, “‘where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Here, the evidence supported the giving of the instruction as there was evidence that appellant left the scene after the shooting. Appellant does not contend otherwise.
But appellant does contend that the trial court should also have given the instruction in relation to Tierce and Ramirez. He relies on People v. Henderson (2003) 110 Cal.App.4th 737, where the appellate court addressed whether a defendant is entitled to instruction on flight of an allegedly culpable third party. The court in Henderson agreed with the defendant that evidence of flight by a third party “after being accused of a crime or after acquiring knowledge of the crime, could be relevant to the jury’s determination of whether the third party’s conduct raises a reasonable doubt as to the identity of the perpetrator. Accordingly, we believe a defendant would be entitled to a special instruction, in the nature of a pinpoint instruction, if properly prepared and submitted by the defense.” (Id. at p. 741.) But the court also determined that no authority compelled a trial judge to draft such an instruction or to give it on the court’s own motion. (Id. at p. 743-744.)
Here, we do not find that appellant was entitled to such a pinpoint instruction. None was offered. Furthermore, there was evidence that neither Tierce nor Ramirez fled the scene after the shooting. In fact, both followed Torres into his apartment to check on him after the shooting. While both Tierce and Ramirez left before police arrived, they were questioned at trial as to why they did so.
Even if we assume, for purpose of argument, that the trial court had a duty to give such an instruction, any error in this case was plainly harmless. The evidence of third party culpability was extremely weak. At most it demonstrated that Tierce and Ramirez both were present at the time of the shooting. But there was no evidence offered connecting either Tierce or Ramirez with the commission of the shooting.
Given the weakness of the third party defense evidence, the fact that the court instructed the jury generally that it could question Tierce and Ramirez’s testimony and that conduct of flight may show a consciousness of guilt, and the positive identification of appellant by Guerrero and Booth, we are satisfied beyond a reasonable doubt that any error in failing to instruct on third party flight did not contribute to the convictions. Any such error was harmless. (People v. Mask (1986) 188 Cal.App.3d 450, 456; People v. Watson, supra, 46 Cal.2d at p. 836.)
4. Erroneous Instruction that Second Degree Implied Malice Murder Requires Specific Intent to Kill
The jury was instructed on the elements of murder (CALCRIM Nos. 500, 520); that murder is classified into two degrees; and that, if it determined appellant had murdered Torres but had a reasonable doubt as to whether the murder was first degree murder rather than a lesser crime, it was required to “find the defendant not guilty of first degree murder.” (CALCRIM No. 521.) The verdict forms provided the jury with the option to acquit appellant or return a conviction for murder in the first degree, murder in the second degree, or voluntary manslaughter.
Appellant contends that the trial court erred when it instructed the jury, in the language of CALCRIM No. 252, that all forms of murder, including murder in the first and the second degree, required a finding of specific intent to kill. Thus, according to appellant, he was denied his right to fair consideration of a conviction of implied malice second degree murder as a lesser offense to premeditated murder. The jury, that is, according to appellant, was given the Hobson’s choice of convicting him of either a specific intent murder or voluntary manslaughter. If the jury believed that appellant acted with implied malice, it had no avenue by which to express its conclusion.
We disagree.
Appellant bases his argument primarily on the language of CALCRIM No. 252, which, as given, instructed the jury:
“The crime … charged in Count 1 require[s] proof of the union or joint operation of act and wrongful intense [sic]. [¶] The following crime or allegations require general criminal intent: Felon in possession of firearm, as charged in Count 2; voluntary manslaughter, as charged in the lesser included offense of Count 1, and use of a weapon. [¶] …. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime or allegation. [¶] The following crimes and allegations require a specific intent or mental state: First degree murder as charged in Count 1; or second degree murder, which is a lesser included offense of Count 1. [¶] For you to find a person guilty of this crime …, that person must not only intentionally commit the prohibited act but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime or allegation.” (Italics added.)
What appellant ignores, however, is the language emphasized with italics in this quotation from the instruction given—to wit, the words, thrice repeated, that both first and second degree murder require proof that the prohibited act be done with either a specific intent or a“mental state.” Further, appellant ignores the statement that the required specific intent “or mental state” will be explained in the instruction on the particular crime in question. Finally, appellant ignores the instructions given on murder and the required mental state of malice aforethought:
“[Appellant] is charged in Count 1 with murder in violation of … Section 187. [¶] To prove that [appellant] is guilty of this crime, the People must prove that, one, [appellant] committed an act that caused the death of another person; and, two, when [appellant] acted, he had a state of mind called malice aforethought. [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish … the state of mind required for murder. [¶] [Appellant] acted with express malice if he unlawfully intended to kill. [¶] [Appellant] acted with implied malice if, one, he intentionally committed an act; two, the natural consequences of the act were dangerous to human life; three, at the time he acted he knew his act was dangerous to human life; and four, he deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. … It does not require deliberation or the passage of any particular period of time…. [¶] … [¶] If you decide that [appellant] has committed murder, you must decide whether it is murder of the first or second degree. [¶] [Appellant] is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. [Appellant] acted willfully if he intended to kill. [Appellant] acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. [Appellant] acted with premeditation if he decided to kill before committing the act that caused death. [¶] … [¶] All other murders are of the second degree.”
We discern nothing in these instructions that, in any way, withdrew from the jury’s consideration the possibility that appellant was guilty of implied malice second degree murder. We reject appellant’s argument to the contrary.
DISPOSITION
The judgment is affirmed.