Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Edward H. Bullard, Judge Super. Ct. No. 1286894
Danalynn Pritz, under appointment by the Court of Appeal, for Joe Hernandez Gastelum, Jr., Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Kristopher M. Blehm, Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Jose Rodriguez Gastelum, Jr., and Kristopher Michael Blehm appeal from the judgment entered following their convictions of first degree murder (count 1 - Pen. Code, §§ 187, subd. (a), 189), and discharging a firearm at an occupied motor vehicle (count 2 - § 246.) Gastelum was also convicted of possession of a firearm by a felon (count 3 - § 12021, subd. (a)(1)) and dissuading a witness by force or threat of force (count 6 - § 136.1, subd. (c)(1).) Blehm was also convicted of possession of ammunition by a felon (count 4 - § 12316, subd. (b)(1)) and accessory after the fact (count 5 - § 32). As to counts 1 and 2, the jury found true allegations that Gastelum had personally and intentionally discharged a firearm causing death. (§ 12022.53, subd. (d).) The court found true an allegation that Gastelum had served two prior prison terms. (§ 667.5, subd. (b).)
All statutory references are to the Penal Code unless otherwise stated.
Gastelum was sentenced to prison for a determinate term of 6 years plus a consecutive indeterminate term of 50 years to life. Blehm was sentenced to prison for a determinate term of 16 months plus a consecutive indeterminate term of 25 years to life.
Gastelum contends that (1) he was denied his constitutional right to the effective assistance of counsel, (2) the trial court erroneously admitted Blehm's out-of-court statements inculpating Gastelum, and (3) the trial court misinstructed the jury. Blehm contends that (1) the evidence is insufficient to support his convictions of first degree murder and discharging a firearm at an occupied motor vehicle, and (2) the trial court misinstructed the jury. We modify the judgment to impose mandatory fines omitted by the trial court and affirm the judgment as modified.
Facts
Lisa Gastelum (Lisa) and appellant Gastelum (Gastelum) were married in 2000. They have three children. In 2006 while Gastelum was in prison, Lisa started dating Kenny Sosa. Lisa informed Gastelum of her relationship with Sosa.
Gastelum was paroled around Thanksgiving Day in November 2006. At that time, Lisa and Sosa were living together.
On November 27, 2006, Lisa drove to the residence of Gastelum's sister, Christina Gastelum (Christina). When Lisa arrived there, she saw Gastelum and Blehm outside. Gastelum and Blehm entered a blue car parked in front of Lisa's vehicle.
Sosa drove by in a red car and nodded his head. Lisa believed that Sosa was upset because "it looked like... [Lisa and Gastelum] were going to go somewhere" together. Lisa drove her vehicle behind Sosa's red car and tried to get his attention. I.G., Lisa and Gastelum's nine-year-old son, was a passenger in Lisa's vehicle. Lisa wanted "to talk to [Sosa] and explain to him that there was nothing going on" between her and Gastelum. On a previous occasion when Sosa had been angry at Lisa, he had destroyed some of her possessions.
Sosa stopped at a red light and "flipped [Lisa] off." Sosa made a left turn and kept driving. Lisa parked at a shopping center. Gastelum, who was driving the blue car, pulled along side of Lisa's vehicle. Blehm was a passenger in the blue car. Lisa told Gastelum that Sosa had her house key and that she was afraid Sosa "was going to go and destroy [her] house and all [her] stuff." Gastelum "just said okay." He did not "seem upset."
Lisa drove in the direction of her house, and Gastelum followed behind in the blue car. Lisa saw Sosa's red car parked on a street near a high school. She made a U-turn and parked behind the red car. Gastelum parked the blue car along side of the red car. Gastelum got out and walked to the driver's side of the red car. Sosa, who was in the driver's seat, shook hands with Gastelum. The handshake appeared to be "friendly." Gastelum suddenly pulled a handgun out of his pocket and shot at Sosa several times. After the shooting, Gastelum entered the blue car and drove away.
Lisa got out of her vehicle and screamed, "Oh my God my boyfriend has been shot." Both Lisa and I.G. testified that they had seen Gastelum shoot Sosa. According to I.G., they were only six to eight feet away from the shooting. The shooting occurred at approximately 2:00 p.m., so it was light outside.
Sosa was shot three times and died from his wounds. One of the bullets penetrated his heart and aorta.
After the shooting, Blehm telephoned a friend, David Murphy, and said that "he needed a place to come hang out and hide out for a little while." Murphy replied that Blehm could come to Murphy's ranch.
Rosanne Wong drove Blehm in her vehicle and dropped him off at a dirt road near Murphy's ranch. Blehm walked to the ranch, showed Murphy the handgun that had been used in the shooting, and asked him to dispose of it. Murphy recognized the handgun as the same one that Blehm had brought to the ranch on prior occasions. Murphy buried the gun.
Blehm told Murphy that his "big homie Joe" had shot the victim and that Blehm "was just riding along with the guy that did it." Blehm said that the victim "deserved it and it was a personal beef between his big homie and [the victim]." Blehm's big homie "just walked up [to the victim] and just unloaded the gun into the guy." Murphy testified that Gastelum was Blehm's "big homie Joe."
Denise Kuster was Murphy's girlfriend. At the ranch, Blehm told Kuster that the shooter had "asked [Blehm] ahead of time, hey, we need your gun" because the shooter " 'said he had to take care of someone.' " Blehm had his gun with him "[a]nd then, in the car, right before the shooting, he handed it to [the shooter]."
Gastelum's Contentions
A. Effective Assistance of Counsel: Wong's Testimony
Gastelum contends that he was denied his constitutional right to the effective assistance of counsel because counsel failed to properly object on hearsay grounds to out-of-court statements included in Rosanne Wong's testimony. The statements were made after Wong had dropped off Blehm at the dirt road near Murphy's ranch. From the dirt road, Wong drove to the house of Gastelum's sister, Christina. Wong found Christina in her bedroom talking on the telephone. Christina hung up and said, "Oh my God Kenny [Sosa] is dead." Christina called for Gastelum, and he entered her bedroom. Christina related the news of Sosa's death to Gastelum. Christina said that "they" had shot Sosa without specifying who "they" were. Wong said that Gastelum had shot Sosa. Christina "cursed and she told [Wong] don't say anything, you don't know anything and nothing is going to happen to you." Christina also told Wong to "act like nothing happened." Christina said that Blehm wanted to be driven to the dirt road because he needed "to get rid of something, he had to put something away." In addition, Christina said that Gastelum "had the blue car."
During the conversation between Wong and Christina, Gastelum was "right there" in the bedroom with them. Gastelum remained silent until the end of the conversation, when he asked Wong to leave the bedroom so that he could talk privately to Christina.
The standard for evaluating Gastelum's claim of ineffective counsel is enunciated in Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]. "First, [appellant] must show that counsel's performance was deficient.... Second, [appellant] must show that the deficient performance prejudiced the defense." (Id., 466 U.S. at p. 687.) To establish deficient performance, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." (Id., at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id., at p. 689.) "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Id., at p. 690.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." (Id., at p. 697.)
Gastelum has failed to show that counsel was deficient for not properly objecting on hearsay grounds to Wong's out-of-court statement that Gastelum had shot Sosa. The statement was admissible as an adoptive admission pursuant to Evidence Code section 1221, which provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." Where, as here, a person is accused of committing a crime, the adoptive admission exception to the hearsay rule operates as follows: " 'If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.' [Citations.]" (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
Wong's accusation met the requirements of the adoptive admission exception. The accusation was made "under circumstances which fairly afford[ed] [Gastelum] an opportunity to hear, understand, and to reply." (People v. Riel, supra, 22 Cal.4th at p. 1189.) Wong, Christina, and Gastelum were together in Christina's bedroom. Wong testified that, when she was conversing with Christina, Gastelum was "right there." No evidence suggests that, in remaining silent, Gastelum was invoking his Fifth Amendment privilege against self-incrimination. Accordingly, any objection on hearsay grounds would have been futile. "Counsel is not required to proffer futile objections. [Citation.]" (People v. Anderson (2001) 25 Cal.4th 543, 587.)
We next consider Wong's testimony that, after she had accused Gastelum of shooting Sosa, Christina "cursed and she told [Wong] don't say anything, you don't know anything and nothing is going to happen to you." Christina also told Wong to "act like nothing happened." Counsel cannot be faulted for not properly objecting on hearsay grounds to Christina's out-of-court statements. The statements were not hearsay evidence because they were not offered to prove the truth of the matters stated. " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Christina's statements were offered to prove Gastelum's consciousness of guilt. The statements were admissible because they were made in Gastelum's presence. " 'Efforts to suppress testimony against himself indicate a consciousness of guilt on the part of a defendant, and evidence thereof is admissible against him. [Citation.] Generally, evidence of the attempt of third persons to suppress testimony is inadmissible against a defendant where the effort did not occur in his presence. [Citation.]' " (People v. Weiss (1958) 50 Cal.2d 535, 554, italics added, questioned on another ground in People v. Johnson (1980) 26 Cal.3d 557, 570-571.)
We need not consider whether counsel was ineffective in not properly objecting on hearsay grounds to the other statements that Christina made to Wong. Gastelum has failed to show "that there is a reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
We reject Gastelum's contention that counsel was ineffective because he did not request an instruction on how the jury should consider evidence of an adoptive admission (CALCRIM No. 357). A reasonable attorney could have concluded that such an instruction would be detrimental to Gastelum because it would highlight the adoptive admission. (See People v. Hinton (2006) 37 Cal.4th 839, 878 ["Defendant also complains that counsel's failure to request a limiting instruction concerning his prior murder conviction demonstrated ineffective assistance, but counsel may have deemed it unwise to call further attention to it"]; People v. Ferraez (2003) 112 Cal.App.4th 925, 934 ["the decision not to request [a limiting instruction] was a reasonable tactical choice by defense counsel to avoid directing the jury to focus on the evidence"].)
CALCRIM No. 357 provides:
B. Effective Assistance of Counsel: Alleged Failure to Invoke State-of-Mind Exception to the Hearsay Rule
During direct examination of a detective, defense counsel attempted to elicit testimony that Gastelum had told his wife, Lisa, that Sosa had been shot because Gastelum had "snapped." The trial court sustained the prosecutor's hearsay objection. Defense counsel asked the trial court to "give [her] the lunch hour to think about it." The trial court replied that it would give counsel as much time as she needed. After the lunch hour, counsel did not mention the issue again.
Gastelum contends that counsel was deficient for failing to argue that Gastelum's out-of-court statement to Lisa was admissible under the state-of-mind exception to the hearsay rule. (Evid. Code, § 1250) Gastelum argues that the statement "was relevant to refuting the premeditation allegation and to help establish he acted in a heat of passion, which would have mitigated murder to manslaughter."
Evidence Code section 1250 provides in relevant part:
To show that counsel was deficient for not invoking the state-of-mind-exception to the hearsay rule, Gastelum "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" (Strickland v. Washington, supra, 466 U.S. at p. 689.) Gastelum has failed to overcome this presumption. During the lunch hour, counsel may have reasonably concluded that it was better trial strategy not to introduce Gastelum's statement to Lisa because it constituted an admission that Gastelum had shot Sosa. As Gastelum notes in his reply brief, counsel's ultimate goal was to obtain an outright acquittal, not a conviction of the lesser included offense of voluntary manslaughter. "Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
C. Effective Assistance of Counsel: Alleged Failure to Object to Admission of a Portion of Lisa's Police Interview
During cross-examination of Detective Baldwin, the prosecutor elicited a portion of Lisa's interview with the police. Lisa told the police that, when she had expressed concern to Gastelum that Sosa had her house keys and that he was "fuck'n crazy, " Gastelum "just said okay." Gastelum argues that counsel was ineffective in failing to object to these out-of-court statements. Gastelum asserts that the statements were prejudicial because they "tended to demonstrate Gastelum was not in a heat of passion."
Gastelum has failed to show "that there is a reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) Gastelum was not prejudiced by Lisa's statements during the police interview because they were cumulative of her trial testimony. Lisa testified that, when she had told Gastelum that Sosa had her house key, Gastelum "just said okay" and did not "seem upset."
D. Admission of Blehm's Statements Inculpating Gastelum
Gastelum contends that the trial court erroneously admitted Blehm's out-of-court statements to David Murphy and his girlfriend, Denise Kuster, "because [the statements] were inadmissible under Aranda-Bruton, and not admissible against Gastelum under the declaration against penal interest exception to the hearsay rule." "Aranda and Bruton stand for the proposition that a 'nontestifying codefendant's extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant's right of confrontation and cross-examination, even if a limiting instruction is given.' [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 652.)
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] (Bruton).
The trial court admitted Blehm's statements to Murphy and Kuster pursuant to the exception to the hearsay rule for declarations against penal interest. (Evid. Code, § 1230.) The court concluded that Aranda and Bruton were inapplicable.
Evidence Code section 1230 provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
Blehm's Statements to Kuster
Gastelum contends that the trial court should have excluded Blehm's statements to Kuster indicating that Gastelum had planned the shooting in advance. Blehm told Kuster that the shooter had said he needed Blehm's gun because " 'he had to take care of someone.' " Blehm had his gun with him "[a]nd then, in the car, right before the shooting, he handed it to [the shooter]."
The trial court properly concluded that Blehm's statements were admissible as declarations against penal interest and did not violate Aranda and Bruton. If a codefendant's self-incriminating statements also inculpate the other defendant, Aranda and Bruton do not mandate their exclusion so long as they satisfy " 'the constitutional requirement of trustworthiness.' " (People v. Cervantes (2004) 118 Cal.App.4th 162, 176-177; see also Lilly v. Virginia (1999) 527 U.S. 116, 136 [119 S.Ct. 1887, 144 L.Ed.2d 117] (plur. opn. of Stevens, J.) ["When a court can be confident... that 'the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, ' the Sixth Amendment's residual 'trustworthiness' test allows the admission of the declarant's statements"].)
A plurality opinion "lacks authority as precedent [citations], and the doctrine of stare decisis does not require us to defer to it [citation]." (Board of Supervisors v. Local Agency Formation Com. (1992)3 Cal.4th 903, 918.) In his briefs, Gastelum treats the Lilly plurality opinion as if it were a majority opinion binding on lower courts. GARB8)
Blehm's statements to Kuster were self-incriminating because he admitted that he had handed his gun to Gastelum knowing that Gastelum intended to use it " 'to take care of someone.' " In view of their self-incriminating nature, "a reasonable man in [Blehm's] position would not have made the statement[s to Kuster] unless he believed [them] to be true." (Evid. Code, § 1230.)
The statements, therefore, were admissible if they satisfied the constitutional requirement of trustworthiness. In determining trustworthiness, "[t]he trial court must look to the totality of the circumstances in which the statement[s were] made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry. [Citations.]" (People v. Greenberger (1997) 58 Cal.App.4th 298, 334.) "In determining the particularized guarantees of trustworthiness, consideration of corroborating evidence is inappropriate since that would constitute 'bootstrapping on the trustworthiness of other evidence at trial.' [Citation.]" (Id., at p. 336; see also Idaho v. Wright (1990) 497 U.S. 805, 822 [110 S.Ct. 3139, 111 L.Ed.2d 638] ["To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial"].) "Clearly the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others.... [T]he most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.] [¶] When examining what was actually said by the declarant special attention must be paid to any statements that tend to inculpate the nondeclarant. This is so because a statement's content is most reliable in that portion which inculpates the declarant. It is least reliable in that portion which shifts responsibility." (People v. Greenberger, supra, 58 Cal.App.4th at p. 335; accord, People v. Cervantes, supra, 118 Cal.App.4th at p. 175.)
In People v. Cervantes, supra, 118 Cal.App.4th at p. 174, the appellate court observed that "there is some disagreement as to whether the trial court's ruling [as to trustworthiness] should be reviewed for an abuse of discretion or de novo." The appellatecourt concluded that "it is appropriate to conduct a de novo review of the totality of the circumstances that surround the making of the statement. [Citations.]" (Id., at pp. 174-175; see also Lilly v. Virginia, supra, 527 U.S. at p. 137 (plur. opn. of Stevens, J.) ["when deciding whether the admission of a declarant's out-of-court statements violates the Confrontation Clause, courts should independently review whether the government's proffered guarantees of trustworthiness satisfy the demands of the Clause"].)
Here, "independent review satisfies us that [Blehm's] statement[s] to [Kuster] [were] 'so trustworthy that adversarial testing would add little to [their] reliability....' [Citations.] Thus, no violation of the Sixth Amendment right of confrontation appears." (People v. Cervantes, supra, 118 Cal.App.4th at p. 177.) Blehm made the statements to a friend in a noncoercive setting. He was not under arrest and was not being interrogated by law enforcement officials. Blehm spoke from personal knowledge and had no motive to lie to Kuster. He had nothing to gain by telling Kuster that he was not the shooter. Blehm did not shift responsibility onto Gastelum. Instead, he "accepted for himself an active role in the crime[]." (Id., at p. 175.) Moreover, Blehm spoke to Kuster soon after the shooting had occurred, when the events were still fresh in his mind. (4RT 863-865)
Since Blehm's statements to Kuster were trustworthy, we also reject Gastelum's contention that their admission violated his constitutional rights to due process and a fair trial because they lacked a sufficient "level of reliability."
Since no Aranda-Bruton violation occurred because Blehm's statements to Kuster were admissible as declarations against penal interest and satisfied the constitutional standard of trustworthiness, we need not consider the People's contention that no Aranda-Bruton violation occurred because Blehm's statements were not testimonial. Nor need we consider the People's contention that Blehm's statements to Kuster were admissible pursuant to the coconspirator exception to the hearsay rule. (Evid. Code, § 1223.)
Blehm's Statements to Murphy
Gastelum argues that the trial court should also have excluded Blehm's statements to Murphy inculpating Gastelum as the shooter. Blehm said that his "big homie Joe" (Gastelum) had shot the victim and that Blehm "was just riding along with the guy that did it." Blehm told Murphy that the victim "deserved it and it was a personal beef between his big homie and [the victim]." Blehm's big homie "just walked up [to the victim] and just unloaded the gun into the guy."
"We need not resolve the constitutional claims raised by [Gastelum], because even assuming it was error under... Aranda and Bruton to admit the disputed statements..., such error was harmless beyond a reasonable doubt. [Citations.]" (People v. Jennings (2010) 50 Cal.4th 616, 652.) Overwhelming evidence showed that Gastelum was the shooter. Gastelum's wife and son, who had witnessed the murder, identified him as the shooter. Gastelum had a motive to kill Sosa because Sosa was having an affair with Gastelum's wife. When Wong accused Gastelum of shooting Sosa, Gastelum's silence constituted an adoptive admission of guilt.
Gastelum argues that his "heat of passion" defense "was torpedoed by Blehm's statements that Gastelum had a 'personal beef' with Sosa, and that [Gastelum] just walked over and unloaded all six rounds into Sosa." But these statements could not have prejudiced Gastelum in view of Blehm's admissible statements to Kuster that the shooter had "asked [Blehm] ahead of time, hey, we need your gun" because the shooter " 'said he had to take care of someone.' " Blehm's statements to Kuster show that the shooting was planned in advance. Furthermore, Gastelum's actions are inconsistent with a heat of passion shooting. Immediately before shooting Sosa, Gastelum shook hands with him in a "friendly" manner.
E. Jury Instructions
The trial court instructed the jury on the theory of a conspiracy "to destroy or hide evidence" of the murder. The alleged coconspirators were Gastelum, Blehm, and Gastelum's sister, Christina. Pursuant to CALCRIM No. 418, the court further instructed the jury that if it found such a conspiracy existed, it could consider out-of-court statements made by the coconspirators "to further the goal of the conspiracy." The absence of a conspiracy charge in the information did not preclude the court from giving these instructions. (People v. Jourdain (1980) 111 Cal.App.3d 396, 404.)
Gastelum argues that "[i]t was improper to instruct the jury that they could consider the statements of all the co-conspirators for any purpose, including proof that Gastelum committed murder, when the alleged conspiracy occurred after the primary criminal objective [murder] was achieved.” Gastelum maintains that the trial court should have instructed the jury to consider the coconspirators' statements only as to the charge against Blehm of being an accessory after the fact. Gastelum asserts: "It was error to admit all the statements, of each and every co-conspirator to prove a crime [murder] that was not the object of the uncharged conspiracy."
Section 32 defines the offense of accessory after the fact as follows: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."
Gastelum's argument is without merit. He cites no authority to the effect that statements of coconspirators in furtherance of the objective of the conspiracy are inadmissible to prove a crime or civil wrong that was not the objective of the conspiracy. Pursuant to the coconspirator exception to the hearsay rule (Evid. Code, § 1223), if the People proved the existence of a conspiracy to destroy or hide evidence of the shooting, the statements of coconspirators in furtherance of the objective of the conspiracy would be admissible for all purposes. (See People v. Hardy (1992) 2 Cal.4th 86, 139.) Accordingly, we reject Gastelum's contention that his counsel was ineffective for not requesting "an instruction that would have limited the jury's consideration of the co-conspirator's statements to proving the charge of accessory after-the-fact (§ 32)... against Blehm."
Blehm's Contentions
A. Sufficiency of the Evidence
Blehm argues that the evidence is insufficient to support his conviction, on an aiding and abetting theory, of first degree murder and discharging a firearm at an occupied motor vehicle. Blehm maintains: "There is no evidence to show [he] knew Gastelum would actually use the gun for any purpose other than self protection." We view the record " ' "in the light most favorable to the judgment to determine whether it discloses 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. [Citations.]" ' [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 806.)
Viewing the record in the light most favorable to the judgment, we conclude that substantial evidence supports the jury's implied finding that Blehm knew in advance that Gastelum intended to use the gun to shoot someone. Blehm told Kuster that the shooter had "asked [Blehm] ahead of time, hey, we need your gun" because the shooter " 'said he had to take care of someone.' "
We reject Blehm's contention that the evidence is insufficient to establish the corpus delicti of the offenses. "The corpus delicti of a crime consists of two elements, the fact of the injury, loss or harm, and the existence of a criminal agency as its cause. [Citation.] It must be proved independently of the extrajudicial statements of the defendant. [Citation.]" (People v. Hamilton (1989) 48 Cal.3d 1142, 1175.) Proof of the corpus delicti " ' "need only be a slight or prima facie showing 'permitting the reasonable inference that a crime was committed." [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 986.) Here, ample evidence independent of Blehm's extrajudicial statements established the corpus delicti of the crimes in question.
B. Jury Instructions
Blehm contends that, pursuant to former CALCRIM No. 400, the trial court erroneously instructed the jury that "[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Italics added.) Blehm maintains that the court should have instructed the jury "that aiders and abettors can be, but are not necessarily, equally guilty of the crime."
Blehm notes that, in People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165, the appellate court stated: "[Former] CALCRIM No. 400 misdescribes the prosecution's burden in proving the aider and abettor's guilt of first degree murder by eliminating its need to prove the aider and abettor's (1) intent, (2) willfulness, (3) premeditation and (4) deliberation, the mental states for [first degree] murder." Based on Samaniego, in April 2010 CALCRIM No. 400 was revised to eliminate the word "equally." The bench notes to revised CALCRIM No. 400 state: "An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state. [Citations.]" (1 Judicial Council of Cal., Crim. Jury Instns. (2011) p. 167.)
In Samaniego the court observed that former CALCRIM No. 400 is "generally correct in all but the most exceptional circumstances." (Ibid.) Therefore, the court concluded that the defendant was "obligated to request modification or clarification [of former CALCRIM No. 400] and, having failed to have done so, forfeited this contention [that the instruction did not inform the jury that an aider and abettor can be guilty of a lesser crime than the perpetrator]." (People v. Samaniego, supra, 172 Cal.App.4th at p. 1163.)
Here, Blehm did not request modification or clarification of former CALCRIM No. 400. Thus, Blehm forfeited his contention that the court should have instructed the jury "that aiders and abettors can be, but are not necessarily, equally guilty of the crime."
For the first time in his reply brief, Blehm contends that defense counsel was ineffective for failing to request a modification of former CALCRIM No. 400. The contention is forfeited because Blehm did not raise it in his opening brief. (People v. Zamudio (2008) 43 Cal.4th 327, 353-354.)
Moreover, any instructional error was harmless beyond a reasonable doubt. During deliberations, the jury asked the trial court, "Can you clarify intent to kill as it applies to Kris Blehm as it pertains to aiding and abetting[?]" In response to this question, the court referred the jury to CALCRIM No. 401, not CALCRIM No. 400. As given by the court, CALCRIM No. 401 informed the jury: "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." Thus, in accordance with Samaniego, the court instructed the jury that it must independently assess Blehm's mental state.
People v. Nero (2010) 181 Cal.App.4th 504, is distinguishable. During deliberations in Nero, the jury inquired whether an aider and abettor must be found guilty of the same level of homicide (e.g., second degree murder) as the perpetrator, or whether an aider and abettor may be found guilty of a lower level. Without consulting counsel, the trial court reinstructed the jury pursuant to former CALJIC No. 3.00 which, like former CALCRIM No. 400, also contained the "equally guilty" language. The appellatecourt concluded: "[W]here, as here, the jury asks the specific question whether an aider and abettor may be guilty of a lesser offense, the proper answer is 'yes, ' she can be. The trial court, however, by twice rereading [former] CALJIC No. 3.00 in response to the jury's question, misinstructed the jury." (Id., at p. 518.) Unlike Nero, here the jury did not ask whether Blehm may be guilty of a lesser offense than Gastelum. Moreover, the trial court did not reread former CALCRIM No. 400 in response to the jury's question.
Sentencing Issues
The People concede that the abstracts of judgment must be corrected to show that appellants are jointly and severally responsible for restitution of $10,520.07. We accept the concession.
The People contend that, as to each appellant, the trial court erroneously failed to impose for each conviction a court security fee of $40 (§ 1465.8, subd. (a)(1)) and a court facilities assessment of $30. (Gov. Code, § 70373, subd. (a)(1).) (RB 66) We agree with the People as to the $30 court facilities assessment but disagree as to the $40 court security fee. In his reply brief, Gastelum correctly points out that the court security fee should be $30 because the fee was not raised to $40 until after appellants' convictions. (Stats.2010, c. 720, § 33.) (GARB 38)
Disposition
The judgment is modified to impose a $30 court security fee (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) on each of Gastelum's four convictions and each of Blehm's four convictions, for a total of $240 per appellant. As modified, the judgment is affirmed. The trial court is directed to amend the abstracts of judgment to show these modifications and, in addition, to show that appellants are jointly and severally responsible for restitution of $10,520.07. The trial court is further directed to send a certified copy of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., COFFEE, J.
"If you conclude that someone made a statement outside of court that (accused the defendant of the crime/ [or] tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the following is true:
"1. The statement was made to the defendant or made in (his/her) presence;
"2. The defendant heard and understood the statement;
"3. The defendant would, under all the circumstances, naturally have denied the statement if (he/she) thought it was not true;
"AND
"4. The defendant could have denied it but did not.
"If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true.
"If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."
"(a) [E]vidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
"(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
"(2) The evidence is offered to prove or explain acts or conduct of the declarant...."