Opinion
F083183
08-25-2023
THE PEOPLE, Plaintiff and Respondent, v. MARIANO DIAZ GOMEZ, Defendant and Appellant.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SF019775A. Charles R. Brehmer, Judge.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P. J.
INTRODUCTION
Antonio Diaz, defendant Mariano Diaz Gomez's brother, was fighting with his girlfriend who then kicked him out of their shared residence. Antonio returned to the residence, accompanied by defendant and another brother, and confronted the girlfriend. When she would not reconcile, Antonio yelled, "Action. Kill her," and defendant and another brother then entered the girlfriend's residence and stabbed her repeatedly. A jury convicted defendant of attempted premeditated murder, conspiracy to commit murder, and other charges. The trial court sentenced defendant to a total term of imprisonment of 25 years to life.
Defendant raises four issues for our review: (1) whether the trial court's instructions for conspiracy to commit murder and attempted murder erroneously permitted the jury to convict without finding that defendant intended to kill; (2) whether the trial court erred in admitting hearsay statements in the form of Antonio's voicemails to the victim; (3) whether defendant is entitled to resentencing in light of amendments to Penal Code section 654; and (4) whether the trial court erroneously sentenced defendant pursuant to section 12022.7, subdivision (e) rather than subdivision (a). The People concede that defendant is entitled to resentencing under section 654 and that the trial court should have sentenced him pursuant to section 12022.7, subdivision (a), but argue the trial court did not otherwise err.
Undesignated statutory references are to the Penal Code.
We accept the People's concessions and remand for resentencing but otherwise affirm the conviction.
PROCEDURAL BACKGROUND
The District Attorney of Kern County filed an amended information on May 20, 2021, charging defendant with attempted premeditated murder (§§ 664, 187, subd. (a), 189; count 1), conspiracy to commit murder (§§ 182, subd. (a)(1), 187; count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), burglary of a residence (§ 460, subd. (a); count 4), and false imprisonment (§ 236; count 5). The amended information included allegations that defendant personally used a deadly or dangerous weapon (§ 12022.7, subd. (b)(1)) as to count 1, personally inflicted great bodily injury (§ 12022.7, subd. (a)) as to counts 1 and 3, and a nonaccomplice was present during the burglary (§ 667.5, subd. (c)(21)) as to count 4.
The trial court orally granted the prosecutor's motion on May 17, 2021, to amend the information by substituting section 12022.7, subdivision (a) for section 12022.7, subdivision (e) (personal infliction of great bodily injury under circumstances involving domestic violence) and to describe the deadly weapon as a "sharp instrument" rather than a knife.
A jury convicted defendant of all charges and found true all allegations. The trial court sentenced defendant on June 18, 2021, to a term of 25 years to life for conspiracy to commit murder (count 2); a stayed term of seven years to life, plus enhancements totaling five years for attempted murder (count 1); a stayed middle term of three years, enhanced by four years for assault with a deadly weapon (count 3); and stayed middle terms of four years for burglary of a residence (count 4) and two years for false imprisonment (count 5).
As to counts 1 and 3, the trial court enhanced defendant's sentence by four years, which is the penalty provided for by section 12022.7, subdivision (e) and charged in the original information.
The court also ordered defendant to pay victim restitution (former § 1202.4, subd. (f)), a $300 restitution fine (former § 1202.4, subd. (b)), and a suspended $300 parole revocation restitution fine (§ 1202.45) as to count 2; and $30 criminal conviction (Gov. Code, § 70373) and $40 court operations (§ 1465.8, subd. (a)) assessments as to all counts.
Defendant timely appealed on August 17, 2021.
FACTS
Antonio had been involved in a sexual relationship with Wendy M. and lived with both Wendy and her daughter, E.G., for approximately two to three years, in a converted garage located behind a main residence in Wasco. On October 20, 2019, Wendy decided to break up with Antonio and asked that he move out of her residence after E.G. played Wendy a recording of Antonio professing his love to another woman. Unable to reach Antonio, Wendy contacted Antonio's brother, Juan Manuel, and instructed him to tell Antonio to pick up his belongings because she no longer wanted Antonio in her life. Wendy said the same thing to Antonio when he called her and accused her of being jealous.
E.G. was born in 2009 and 11 years old at the time of the trial.
Thereafter, Wendy arrived home with E.G. and saw that Antonio was at the residence with his brothers, defendant and Lorenzo. Antonio removed his property from the residence. Before leaving, Antonio told Wendy that defendant wanted to kill her but did not because there were too many people who would see it. She told Antonio that she would not get back together with him and that she intended to move out of town. Antonio left after Wendy advised him that she would be working later.
Although Wendy testified that Lorenzo and Antonio were brothers, Antonio testified that Lorenzo was only a friend. Lorenzo's last name does not appear in the appellate record.
Wendy and E.G. returned home from Wendy's place of employment at approximately 10:30 p.m. She parked at the back of the residence just off an alley after opening the gate that she had padlocked to prevent Antonio from returning. Wendy observed that someone had unsuccessfully attempted to open the gate and was nervous when she and E.G. entered the residence through the back door. The residence was a garage converted into a small studio with the kitchen and dining area near the back door and separated by a curtain from the sleeping area and bathroom, which were near the front door. As Wendy and E.G. entered the bedroom area, Antonio jumped out of the bathroom and said, "You didn't want to see me?" Wendy had not given Antonio permission to be in the residence, was frightened, and started to shake. She feared for her safety and that of her daughter.
Antonio asked Wendy to get back together with him, but she refused and yelled for E.G. to get off the bed and leave the residence. After E.G. left, Antonio asked Wendy if she was sure about not reconciling and then pushed her onto the corner of the bed when she reiterated that she would not reconcile. Antonio then said, "Action. Kill her."
Wendy heard the front door bang, and defendant and Juan entered and attacked her. Both men were on top of Wendy as she tried to defend herself. Defendant had something shiny that he used to cut her left cheek, jawline, the left side of her neck and throat, and left forearm. Juan repeatedly struck her stomach and torso in a stabbing motion with an object in his hand. Wendy heard a sound like "blop, blop, blop," realized her neck was bleeding, and believed that they had cut her jugular. Antonio ran in from the kitchen and said, "Let's go, the police [are] coming." As they ran out, Wendy asked Antonio for help, but he did not stop.
Wendy sustained cuts to her face, lip, chin, left forearm, and neck from defendant and seven or eight wounds to her stomach and torso from Juan. Wendy ran to the front of the main residence where her neighbors assisted her with trying to stop the bleeding from her neck. One of the neighbors called 911 and reported that Antonio had stabbed Wendy and she was bleeding. Wendy told the 911 operator, "He stabbed me with a knife," and, "They attacked me in my house." Wendy was transported by ambulance to a helicopter and then to the hospital where she received many stitches that left scars. She testified that she still feels pain in her lips and wakes up screaming from fear that her assailants will return.
Wendy testified that she defended herself but did not have a weapon, threaten her assailants, or try to injure them before the attack. Wendy did not physically engage with Antonio during their earlier argument either.
A few days after the incident, Wendy realized that Antonio had left her two voicemails. In the first message, Antonio attempted to apologize and said, "I should've not done that to you, forgive me." He asked Wendy to contact his sister and promised Wendy a place to live and that she would not have to work anymore. Antonio promised, that if Wendy wanted him in jail, he would turn himself in to the police but begged her to contact his sister and told her that his family would give Wendy everything she needed. Antonio also said, "I know that my brother, [defendant], won't get out anymore, I don't know how many years he'll get but okay, that's my fault. How do you think I feel? My brother is in jail because of me and you're suffering in a hospital ._" Antonio claimed that he loved Wendy and "did it because of love, because they told me that you were with somebody else, that's why I tried killing you but I reacted."
During his second message, Antonio said, "I know that I should've not done that to you," "[b]ut please contact my sister. I'll turn myself in if that's what you want, I know I should've not done that to you and forgive me.. . . But they told me a bunch of things, that's why I was so angry." Antonio promised to turn himself in to the police but "want[ed] to fix a few things" with Wendy. Antonio said he talked with his brother and they would "give [her] a huge amount of money, please." He said, "I know that we're not buying you or anything like that, I know that I'd never buy what I did to you but so that you don't work, I'll offer you some money, I'll see how I can do that."
Wendy testified that in August 2017, Antonio got on top of her while she was lying down and tried to strangle her. Antonio said that he would kill Wendy because he was jealous and did not trust her. After the attack, Wendy had marks on her neck and could not move it. E.G. called 911.
Kern County Sheriff's Deputy David Manriquez responded to the residence and saw Wendy outside in a chair, holding a cloth to her neck, and there was a large amount of blood. Wendy was scared and frantic because she was not sure of the extent of her injuries. The video of Wendy's initial statement to Manriquez was played to the jury. Wendy told Manriquez, "He stabbed me on the-on the neck." She explained that three men participated, they tried to hold her down, and she tried to defend herself. Wendy did not know what they used to stab her and described their weapons as short and sharp. She named Antonio, Juan, and defendant as the three men. Wendy said that they did this to her because she no longer wanted Antonio to be in her house as he was with other women. Wendy explained that she had kicked Antonio out and "the three of them came over to attack me" "[b]ecause I kicked [Antonio] out."
As Wendy was being placed in an ambulance, Kern County Sheriff's Deputy Luis Almanza asked her additional questions that were recorded by Manriquez's body camera. The recording was played to the jury. Wendy explained that E.G. had recorded Antonio speaking with another woman, and Wendy told Antonio to leave. At one point, Antonio told Wendy," 'My brother came because we're going to screw you over.'" She believed that Antonio was just talking, and the neighbors were present at that time, so they did not attack her. Wendy said that when she arrived home, E.G. told her the lock had been removed, but they entered the house because they did not notice anything else. Wendy explained, "[Antonio] was inside the house. He opened the door to this side and he told them, 'Action.' When he said 'Action' his two brothers came in and attacked me together with him. But I fought as much as I could." Wendy said, "And [defendant] was the one that stabbed me." Wendy identified defendant and Juan as Antonio's two brothers who attacked her inside the house. She also told officers that she reported Antonio for hitting her three years earlier.
Manriquez recorded a second interview with Wendy later that day at the hospital, which was also recorded by his body camera. She explained that Antonio had emerged from the bathroom and said that he loved her and did not want to fight. Wendy told Antonio that she did not want to reconcile and, after Antonio asked whether she was sure, she responded that she was sure. Wendy told him that Antonio pushed her and held her down on the bed. Antonio then said, "Action. Kill her." Wendy told him that defendant stabbed her in the face and neck area and Juan stabbed her in her abdomen. Manriquez observed Wendy's injuries and said they were consistent with a knife or other sharp instrument.
Wendy told Manriquez that she told E.G. to run, E.G. ran, and Antonio ran after E.G. into the kitchen. Wendy also said that earlier in the day, Lorenzo and defendant accompanied Antonio to retrieve his belongings, and Antonio told her that defendant intended to kill her. Wendy said that Antonio told her, "[Defendant] came to break you." She explained "to break you" meant "to kill you," and said Antonio explained that they couldn't at the time because the neighbors were present, but Wendy did not take him seriously.
Manriquez's report states that Wendy allowed Antonio into the residence that evening after he knocked on the door. According to Manriquez's report, Wendy told Manriquez that Antonio said, "Action," to call his brothers into the residence but Antonio did not say, "Kill her." But Manriquez testified that Wendy told him at the hospital that Antonio said, "Action. Kill her." Manriquez's report also states that Wendy said Antonio pushed her onto the bed and then held her down.
Deputy Manriquez testified that he prepared a report documenting that Wendy heard Antonio knocking at the front door and allowed him into her residence. Wendy denied that she made that statement. Manriquez recorded his conversation with Wendy while she was being treated by emergency personnel outside her home, Deputy Almanza's conversation with Wendy while she was in the ambulance, and Manriquez's second conversation with Wendy while she was being treated at a hospital. Wendy did not mention the manner in which her assailants entered the residence in her first interview, and, during the second interview, told Almanza that Antonio was inside the residence. When questioned at the hospital, Wendy told Manriquez that Antonio frightened her when he emerged from the bathroom into the bedroom upon her return home from work. Manriquez prepared his report without referring to a transcript of Wendy's interviews.
E.G. testified she played Wendy a recording of Antonio having a conversation with another woman and later saw Antonio remove his belongings from their residence. When she and Wendy returned home that evening, Antonio was in the bathroom and said, "Surprise, mommy." She was scared but left when Wendy told her to leave. E.G. saw Antonio push Wendy toward the bed and heard them fighting. E.G. ran outside as instructed by Wendy and heard Antonio say, "Action." E.G. lost consciousness and got a bump on her head when Antonio grabbed her by the hair and threw her to the ground. When she woke, E.G. yelled for help and looked for Wendy in the front yard with the neighbors. E.G. did not see anyone other than Antonio in the residence during the incident.
McFarland Police Officer Matthew Dewar testified that he interviewed E.G. on the night of the incident. E.G. told him that she saw Antonio grab her mother by the throat so hard that her mother could not scream. E.G. also told him that while fleeing from her residence, Antonio chased her, grabbed her by the hair, and threw her to the pavement. Dewar saw injuries to her elbow, and emergency personnel told him that E.G. had a knot on the side of her head.
Antonio testified that he returned to the residence sometime around noon that day. He called Wendy, who was not home at the time, and she yelled and insulted him and then sent him a recording of his conversation with another woman. Antonio then received a call from one of his brothers who conveyed a message from Wendy that he should move out. Antonio called defendant to assist him. When Wendy returned home, Antonio went to her car and begged Wendy to forgive him. She refused, and then defendant and Lorenzo arrived and drove Antonio to Juan's house with some of Antonio's belongings.
According to Antonio's testimony, later that day, Wendy called him and asked him to return to the residence to pick up his medicine and a ring. During the call, Wendy threatened to kill him and the woman with whom Wendy believed he was having an affair.
Antonio walked to Wendy's residence, knocked on the door, and entered when Wendy let him inside. Antonio texted Juan to come to the residence because Antonio needed a car to carry additional belongings, and defendant and Juan arrived at Wendy's residence. Antonio testified that he was upset that Wendy ended their relationship and humiliated that she had broken up with him in front of the neighbors earlier that day. However, Antonio denied that he went to Wendy's residence that evening to discuss their relationship and only did so at Wendy's request to pick up his belongings.
Antonio testified that he was in the kitchen while Wendy was speaking with defendant and Juan in the bedroom. He heard Wendy call out and saw Juan and defendant on top of Wendy on the bed. Antonio denied that he saw them attacking Wendy and testified that when he entered the room, his brothers immediately ran out and he followed them to find out what had happened. Although Antonio testified that he intended to defend Wendy, he left the residence without calling for help or helping Wendy. Antonio testified that defendant stabbed Wendy. Defendant later told Antonio that Wendy had nail cutters and intended to hurt Antonio and that defendant was defending Antonio. However, Antonio testified that he did not see Wendy with a weapon and Wendy never did anything physical to either himself or his brothers. Antonio said he did not hurt Wendy and did not ask his brothers to do so.
Antonio testified that he did leave messages for Wendy in which he admitted that he was at fault for trying to kill her but claimed that he only did so because his father instructed him to do so and to protect his brothers. He also lied to police about his identity when arrested.
DISCUSSION
I. The trial court's instructions did not erroneously fail to instruct the jury that conviction for conspiracy to commit murder and attempted murder required finding that defendant intended to kill.
A. Background
1. Jury instruction conference.
The trial court and the parties met to discuss jury instructions on May 17, 2021, and then placed the results of their two-hour meeting on the record. Defendant's counsel objected to the instructions "in their totality" to preserve defendant's rights but voiced no objection to any specific instructions.
2. Instructions to the jury.
The trial court instructed the jury with CALCRIM No. 415 (Conspiracy [§ 182]), in relevant part: "To prove that a defendant is guilty of [the crime charged in count 2, conspiracy to commit murder], the People must prove that: [¶] One, the defendant intended to agree and did agree with the other defendant to commit murder; two at the time of the agreement, the defendant and the other alleged member of the conspiracy intended that one or more of them would commit murder." "To decide whether a defendant and any other alleged member of the conspiracy intended to commit murder, please refer to the separate instructions that I'll give you as to what murder is defined as." "The People must prove that the members of the alleged conspiracy had an agreement and intended to commit murder."
The trial court next instructed the jury with CALCRIM No. 417 (Liability for Coconspirator's Acts), in relevant part, that a member of conspiracy is criminally responsible for the crime he conspired to commit, whichever member actually committed it, and is also criminally responsible for any act furthering the conspiracy that is a natural and probable consequence of the common plan or design of the conspiracy. The court instructed, "To prove that [defendant or Antonio] is guilty of the crimes charged in Count 2," it must be proved that "one the defendants conspired to .. [m]urder," another conspirator "committed assault with a deadly weapon, false imprisonment, residential burglary, or attempted murder to further the conspiracy," and those crimes "were natural and probable consequences of the common plan or design of the crime that the defendant conspired to commit." (Italics added.)
The trial court added the italicized language to CALCRIM No. 417 where the standard instruction indicated to insert the names of the target and non-target offenses.
The trial court, using CALCRIM No. 500, instructed that homicide is killing a human being which may be lawful or unlawful, defendants were charged with attempted murder and conspiracy to commit murder, and murder is one type of unlawful homicide. Deviating from the written instructions, the trial court stated, "There was no killing in this case. This is an instruction that describes what homicide means. Homicide is different than murder.... [¶] So that's why this instruction is being read to you to give you some perspective as to that difference."
After describing the defense of justification relating to the charge of attempted murder, the trial court instructed with CALCRIM No. 520: "Conspiracy to commit murder is charged in Count 2. This is the definition of murder." After reading the elements of murder, the court deviated from the written instruction and stated, "Again, this is the definition of murder because you have to know that to know if there was conspiracy to commit murder." The court then read that portion of CALCRIM No. 520 that defined the state of mind for murder as either an unlawful intent to kill or implied malice. The court then instructed, "If you find the defendant guilty of murder, it's murder-," but did not finish, said the statement was wrong, and, with counsels' agreement, crossed out that portion of the written instruction that provided: "If you find the defendant guilty of murder, it is murder of the second degree." The court concluded, "Please also refer to instruction 563, which defines the conspiracy charge. I added that in there because, obviously, they go together."
The court instructed with CALCRIM No. 521, but deviated from its written instruction and stated, "What I'm about to read to you, again, is only to describe what the legal requirements are to first degree murder so you understand that in context with Count 2, which is conspiracy to commit first degree murder. [¶] So when I read here and say the defendant is being prosecuted for first degree murder, that's not what I mean. What I mean is this is the definition of first degree murder." In the language of CALCRIM No. 521, the court described the two theories of first degree murder, that being, murder that was willful, deliberate, and premeditated and murder committed by lying in wait. After reading, "You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder" (the third paragraph of the instruction), the court deviated from the written instruction and stated, "That's not true. It's was [sic] there-is it proven beyond a reasonable doubt that a defendant conspired to commit first degree murder."
After defining the two types of first degree murder, the court instructed with the final paragraph of CALCRIM No. 521: "The People have the burden of proving beyond a reasonable doubt that the killing-and you understand the conspiracy to kill-was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of conspiracy to commit first degree murder." (Italics added to indicate deviation from written instruction.) The court then deviated from the written instructions and stated, "Sometimes it's confusing when there's conspiracy then a reference to the charge, but that's why these instructions are being referenced so it's less confusing."
The court then instructed with CALCRIM No. 563, in relevant parts as follows: "The defendants are charged in Count 2 with conspiracy to commit murder. This is instruction 563 that I referenced. [¶] To prove that the defendant is guilty of the conspiracy to commit murder, the People must prove that, one, the defendant intended to agree and did agree with the other defendants to intentionally and unlawfully kill. Two, at the time of the agreement, the defendant and the other alleged members of the conspiracy intended that one or more of them would intentionally and unlawfully kill. [¶] ... [¶] To decide whether a defendant committed these overt acts, consider all of the evidence presented about the act. To decide whether a defendant and the other alleged members of the conspiracy intended to commit murder, please refer to Instructions 505, 520, and 521 which define that crime. I read those instructions. That's what I was just doing." (Italics added to indicate deviation from written instruction.)
As to attempted murder, the court instructed with CALCRIM No. 600, providing in relevant part: "To prove that a defendant is guilty of attempted murder, the People must prove that, one, the defendant took at least one direct but ineffective step toward killing another person; and, two, the defendant intended to kill that person," and that "[a] direct step indicates a definite and unambiguous intent to kill." Pursuant to CALCRIM No. 601 regarding attempted murder, the court also instructed that the jury could find true the additional allegation the attempted murder was willful, premediated, and deliberate if either defendant or Antonio possessed that state of mind.
3. Closing arguments.
On May 19, 2021, the prosecutor presented his closing argument and told the jury that "on October 20, 2019, [Antonio, defendant, and Juan] went to [Wendy's] home at night, snuck into her house, and they went there to murder her." "So, element one, the defendant intended to agree and did agree with the other defendant to intentionally and unlawfully kill or to murder. So murder equals the intentional and unlawful killing of another." The prosecutor also argued that first degree murder required that defendant unlawfully intended to kill. He argued that Antonio and defendant went to Wendy's home to kill her, they intended to kill her, had a plan to kill her, and that their intent to kill was shown by their actions."
The prosecutor also argued that the planned murder was first degree murder both because defendant willfully, deliberately, and premeditatively intended to kill Wendy and because defendant and Antonio were lying in wait. The existence of the plan was proved by the fact that defendant and Juan took weapons to Wendy's house, defendant immediately entered the residence when Antonio called out the verbal cue, "Action. Kill her," and then defendant and Juan stabbed Wendy. "This was a premediated, calculated, and deliberate decision to go to Wendy's home to murder her."
The prosecutor argued that he had to prove that the members of the conspiracy had an agreement and intended to commit murder, but this agreement could be inferred by conduct and that defendant's attempt to kill Wendy by repeated stabbing proved that he had agreed to kill her. The prosecutor argued that this same evidence proved element two, that the conspirators "intended that one or more of them would intentionally and unlawfully kill," and the object of the conspiracy in this case was to kill Wendy.
Having found the existence of a conspiracy to kill Wendy, the prosecutor argued that defendant and Juan carried out the actual attack on Wendy, but Antonio was liable for all crimes committed by defendant in counts 1, 3, 4, and 5 (attempted murder, assault with a deadly weapon causing great bodily injury, burglary, and false imprisonment) because those crimes were the natural and probable consequence of conspiring with defendant to kill Wendy.
The prosecutor argued that Antonio's voicemail messages evidenced that Antonio and defendant intended to kill Wendy, and that both the locations and seriousness of Wendy's injuries corroborated defendant's intent to kill her. The prosecutor said, "So it's their circumstances surrounding their action that show they intended to kill Wendy. The only reasonable conclusion from these actions is that the defendant intended to kill Wendy. It is not reasonable to think that if you're stabbing a knife or sharp instrument at somebody's face and throat, that they're going to live." The prosecutor concluded that portion of his closing argument, "[Defendant] and Juan ... agreed to do the actual act for Antonio. They agreed to do the dirty work of actually stabbing Wendy. Based on all of the evidence, the only reasonable conclusion is that [defendant and Antonio] intended to kill Wendy."
Regarding the attempted murder charge, the prosecutor argued that defendant personally inflicted great bodily injury on Wendy when he cut her face and neck with a sharp instrument, and personally and intentionally used a dangerous and deadly weapon when he cut and stabbed her.
The prosecutor concluded his argument and told the jury, "[W]e know what happened ._ Antonio [ ] and [defendant] went to Wendy's home with the intent to murder her. They had conspired. They had a plan. They went there, and they executed that plan."
Defendant's counsel argued that the evidence was insufficient to prove beyond a reasonable doubt that defendant was present because Wendy accused defendant of stabbing her to protect Antonio, whom she still loved, Antonio testified that defendant stabbed Wendy to protect himself, and neither E.G. or any other witness saw defendant at the residence.
In rebuttal, the prosecutor argued that defendant did not respond to Antonio's cue to "[k]ill her" by going into the bedroom just to beat her up, he brought a sharp instrument and went for her jugular to try to murder her. He further argued, "They didn't just go in to rough her up. They went in there to kill her. [Defendant] tried to kill her."
B. Applicable Law and Standard of Review
1. Standard of review.
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Once we have ascertained the relevant law, we determine the meaning of the instructions in this regard. Here, the question is whether there is a 'reasonable likelihood' that the jury understood the charge as the defendant asserts. [Citations.] 'In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. [Citation.] Finally, we determine whether the instruction, so understood, states the applicable law correctly.'" (People v. Kelly (1992) 1 Cal.4th 495, 525-526, first bracketed insertion added.)" 'It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions.'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)"' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." '" (People v. Solomon (2010) 49 Cal.4th 792, 822.)
2. Conspiracy to commit murder.
"The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder- hence all murder conspiracies are conspiracies to commit first degree murder." (People v. Cortez (1998) 18 Cal.4th 1223, 1232 (Cortez).) Because all murder conspiracies are conspiracies to commit first degree murder, a conspiracy conviction "cannot be based on a theory of implied malice." (People v. Swain (1996) 12 Cal.4th 593, 607 (Swain); see People v. Beck and Cruz (2019) 8 Cal.5th 548, 642 (Beck) ["Conspiracy to commit murder may be based only on express malice, i.e., an intent to kill."].)
" '[C]onspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the object of the conspiracy.' [Citation.] Instructions on the basic elements of murder [are] therefore necessary to guide the jury in its determination of whether defendant harbored the requisite dual specific intent for conviction of conspiracy to commit murder." (Cortez, supra, 18 Cal.4th at p. 1239, second bracketed insertion added.) "[T]here [is] no ... requirement for the jury to determine the 'degree' of the underlying target offense of murder, and thus no need for specific instruction on premeditation and deliberation respecting the conspiracy count. Our conclusion in this case-that a jury's finding of the dual specific intent required for conviction of conspiracy to murder necessarily establishes that the target offense of murder was premeditated and deliberated ._" (Id. at p. 1238.)
3. Attempted murder.
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Booker (2011) 51 Cal.4th 141, 177-178; see People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) "Intent to unlawfully kill and express malice are, in essence, 'one and the same.'" (People v. Smith (2005) 37 Cal.4th 733, 739.) Thus, while murder may be premised on a conscious disregard for life (implied malice), attempted murder requires the specific intent to kill. (Ibid.) In addition, the crime of attempted murder is not divided into degrees, but the prosecution may seek a finding that the attempted murder was willful, deliberate, and premeditated for purposes of sentence enhancement. (Id. at p. 740.)
While for murder, the degree is determined by examining the individual defendant's intent and applying section 189, a defendant convicted of attempted murder is subject to increased penalties pursuant to section 664, subdivision (a) for an attempted murder that is willful, deliberate, and premeditated if either the defendant or an accomplice acted with willfulness, deliberation, and premeditation. (People v. Concha (2009) 47 Cal.4th 653, 665.) "[W]e construed section 664, subdivision (a), as requiring 'only a certain quality characterizing the crime itself, that is that the attempted murder was willful, deliberate and premeditated.'" (Ibid.)
C. Analysis
1. While the instructions on conspiracy to commit murder may have been flawed, they unambiguously required the jury to find defendant had an intent to kill and any error was harmless beyond a reasonable doubt.
Defendant argues that the instructions in this case failed to require the jury to find that defendant intended to kill to convict him of conspiracy to commit murder by instructing on implied malice and lying in wait as part of the definition of murder and premediated murder. While we agree that the trial court erred in instructing the jury on both implied malice and lying in wait as theory of first degree murder, we conclude that the jury instruction on conspiracy to commit murder (CALCRIM No. 563) unambiguously instructed the jury to find defendant intended to kill, and that the prosecutor argued in closing argument that defendant intended to kill Wendy and never argued implied malice as a basis for conviction.
The trial court instructed the jury with CALCRIM No. 563. We note that the version of CALCRIM No. 563 used by the trial court appears to predate its revision in September 2020 by the Judicial Council because it did not include the following paragraphs that were added during revision:
"To decide whether (the/a) defendant and [one or more of] the other alleged member[s] of the conspiracy intended to commit murder in the first degree, please refer to Instructions 520 (First or Second Degree Murder With Malice Aforethought) and 521 (First Degree Murder) which define that crime.
Prior to revision, this paragraph read: "To decide whether (the/a) defendant and [one or more of] the other alleged member[s] of the conspiracy intended to commit murder, please refer to Instructions ____, which define that crime." (CALCRIM No. 563 (Apr. 2020) p. 337.)
"When deciding whether (the/a) defendant and [one or more of] the other alleged member[s] of the conspiracy intended to commit murder in the first degree, do not consider implied malice. Conspiracy to commit murder requires an intent to kill."(CALCRIM No. 563 (2022) p. 311, boldface and italics omitted; see CALCRIM No. 563 (Sept. 2020 supp.) p. 39) The latter paragraph is a clear statement to the jury to ignore implied malice when deciding whether defendant is guilty of conspiracy to commit murder, but it was not read in this case. (See Beck, supra, 8 Cal.5th at p. 642 [recognizing that a clear direction to the jury not to consider implied malice would avoid possibility of confusion].)
This paragraph was added to CALCRIM No. 563. (Compare CALCRIM No. 563 (Apr. 2020) p. 337 with CALCRIM No. 563 (Sept. 2020 supp.) pp. 39 and CALCRIM No. 563 (2022) p. 311.)
The Bench Notes direct the court to give all appropriate instructions defining the elements of murder. (See Judicial Council of Cal., Crim. Jury Instns. (2022) Bench Notes to CALCRIM No. 563, p. 312.) As specifically relevant to the instant case, the Bench Notes provide, "Do not cross-reference the murder instructions unless they have been modified to delete references to implied malice. Otherwise, a reference to implied malice could confuse jurors because conspiracy to commit murder may not be based on a theory of implied malice. (People v. Swain[, supra,] 12 Cal.4th [at pp.] 602-693, 607.)" (Judicial Council of Cal., Crim. Jury Instns. (2022) Bench Notes to CALCRIM No. 563, p. 313.) The commentary to CALCRIM No. 563 also advises that conspiracy to commit murder cannot be based on a theory of implied malice. (Commentary to CALCRIM No. 563 (2022) p. 314.)
This Bench Note was included in the prior version of CALCRIM No. 563. (See Judicial Council of Cal., Crim. Jury Instns. (Apr. 2020) Bench Notes to CALCRIM No. 563, p. 338.)
This Bench Note was included in the prior version of CALCRIM No. 563. (See Judicial Council of Cal., Crim. Jury Instns. (Apr. 2020) Bench Notes to CALCRIM No. 563, p. 339.)
This commentary was included in the prior version of CALCRIM No. 563. (See Commentary to CALCRIM No. 563 (Apr. 2020) p. 340.)
Because the court did not delete references to implied malice in CALCRIM No. 520's definition of murder when it instructed the jury, we evaluate this error for prejudice under Chapman v. California (1967) 386 U.S. 18, 24. (See Beck, supra, 8 Cal.5th at p. 642; Swain, supra, 12 Cal.4th at p. 607.) Under this standard, we must reverse the conviction unless after examining the entire cause, including the evidence, and considering all relevant circumstances, it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, at p. 24.) We conclude that the balance of the instructions and the prosecutor's argument make clear that the jury in fact found that defendant intended to kill Wendy and that instructions on implied malice did not contribute to the jury's verdict on count 2 for conspiracy.
At the conclusion of CALCRIM No. 520, defining murder, the court added, "Please also refer to instruction 563, which defines the conspiracy charge. I added that in there because, obviously, they go together." The court then read CALCRIM No. 563, first stating, "This is instruction 563 that I referenced," and then instructing the jury that to convict defendant of conspiracy to commit murder, the People must prove that "the defendant intended to agree and did agree with the other defendants to intentionally and unlawfully kill" and that "the defendant and the other alleged members of the conspiracy intended that one or more of them would intentionally and unlawfully kill." The court also referred the jury back to instructions 520 and 521, which define murder.
Therefore, while the jury instructions may have been flawed in retaining an explanation of implied malice when defining murder, the instructions specific to conspiracy to commit murder also required the jury to find defendant intended to "intentionally and unlawfully kill." We conclude that the jury instructions as a whole required the jury to convict defendant of conspiracy to commit murder only if it found defendant had the intent to kill. We reject defendant's argument that the court's inclusion of implied malice permitted the jury to convict him without finding he had intent to kill.
Defendant also argues that the court's use of CALCRIM No. 521 (First Degree Murder) was flawed because, in addition to premeditated murder, it defined lying in wait as a theory of first degree murder. The court was not required to provide any specific instruction on the requirements of first degree murder. (See Cortez, supra, 18 Cal.4th at p. 1238.) This is so because our Supreme Court has explained that "it logically follows that where two or more persons conspire to commit murder-i.e., intend to agree or conspire, further intend to commit the target offense of murder, and perform one or more overt acts in furtherance of the planned murder-each has acted with a state of mind 'functionally indistinguishable from the mental state of premeditating the target offense of murder.' [Citation.] The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder-hence all murder conspiracies are conspiracies to commit first degree murder, so to speak." (Id. at p. 1232.)
Defendant is correct that there is a significant distinction between willful, deliberate and premeditated murder and lying-in-wait murder, even though both are species of first degree murder because lying in wait does not require proof an intent to kill. (See People v. Flinner (2020) 10 Cal.5th 686, 748 ["implied malice" suffices for conviction of lying-in-wait murder]; People v. Streeter (2012) 54 Cal.4th 205, 246 ["lying-in-wait murder requires only a wanton and reckless intent to inflict injury likely to cause death"], overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.)
Although CALCRIM No. 521 provided that first degree murder could be based on premeditated murder or lying in wait, CALCRIM No. 563 expressly required the jury to find defendant had the intent to kill in addition to the elements of murder and lying in wait. So even if the jury believed that defendant was lying in wait as part of the plan, CALCRIM No. 563 required the jury to also find that defendant did so intending to kill Wendy. Even though the instructions included lying in wait, the jury could not have convicted defendant of conspiracy to commit murder without finding he intended to kill.
Defendant also argues that the court erred in instructing with CALCRIM Nos. 415 and 520 because the latter instruction included implied malice. Unlike CALCRIM No. 563, which is drafted specifically for the crime of conspiracy to commit murder, CALCRIM No. 415 is a general conspiracy instruction and requires the court to insert the name of the crime that is the object of the conspiracy. Bench Notes for both instructions direct the court to only use CALCRIM 563 where defendant is charged with conspiring to commit murder. (Judicial Council of Cal., Crim. Jury Instns. (2022) Bench Notes to CALCRIM No. 415, p. 174; id., Bench Notes to CALCRIM No. 563, p. 312.) In this case, CALCRIM No. 415 provided that the People had to prove that "defendant intended to agree and did agree with the other defendant to commit murder," and "defendant and the other alleged member of the conspiracy intended that one or more of them would commit murder," and the instruction referred the jury to the definition of murder in CALCRIM No. 520. By defining murder to include implied malice as well as an intent to kill, a jury could convict defendant of conspiring to commit implied malice murder, and the general conspiracy instruction did not include intent to kill as one of the elements of a murder conspiracy.
The question remains whether the description of implied malice in the murder definition was prejudicial where CALCRIM No. 563 required the jury to find defendant intended to kill, but CALCRIM No. 415 was more generally written. We find no prejudice. The jury was required to apply both CALCRIM Nos. 563 and 415 to the charge of conspiracy to commit murder, CALCRIM No. 563 being more specific in defining the necessary intent for conspiracy. (See Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 433 [" 'jurors are presumed to be intelligent and capable of understanding and applying the court's instructions' "].) In doing so, the jury was instructed that it had to find that defendant intended to kill before it could convict him of conspiring to commit murder.
At no point during closing arguments did the prosecutor argue that implied malice was a proper basis to support a conviction for conspiracy to commit murder. Rather, his theory of the case, as expressed throughout his closing argument, was that defendant specifically intended to kill Wendy. (Compare Swain, supra, 12 Cal.4th at p. 607 [reversing conviction for conspiracy to commit murder where prosecutor improperly relied on implied malice theory] with Beck, supra, 8 Cal.5th at p. 642 [no prejudice for defining implied malice where specific jury instruction required intent to kill.)
The prosecutor's closing argument centered upon the elements of the offense as set forth in CALCRIM No. 563. He told the jury, "So, element one, the defendant intended to agree and did agree with the other defendant to intentionally and unlawfully kill or to murder. So murder equals the intentional and unlawful killing of another." After discussing the evidence as to this element, the prosecutor stated, "Element two, at the time of the agreement, the defendant and the other alleged members of the conspiracy intended that one or more them would intentionally and unlawfully kill."
When the prosecutor described the conspiracy to murder Wendy, he referred to it as first degree murder that required defendant to unlawfully intend to kill and further argued that defendant intended to murder Wendy willfully, deliberately, and premeditatively. In discussing the plan, the prosecutor described defendant's actions of lying in wait. While lying in wait does not require intent to kill, the prosecutor's argument linked lying in wait to defendant and Antonio's plan to intentionally kill Wendy.
The prosecutor argued that he had to prove that the members of the conspiracy had an agreement and intended to commit murder, but this agreement could be inferred by the circumstances surrounding their conduct: defendant brought a knife to the residence; stayed outside until Antonio yelled, "Action. Kill her"; ran into Wendy's room; and immediately and repeatedly stabbed her and tried to cut open her throat.
Defendant argues that the prosecutor did argue a theory of conspiracy to commit murder based on implied malice when he argued that the circumstances surrounding defendant's actions demonstrated an intent to kill because it was the only reasonable conclusion where defendant repeatedly stabbed Wendy in the face, neck, and torso. However, these comments related to the prosecutor's argument that the only reasonable conclusion from "circumstances surrounding their actions" is that defendant intended to kill Wendy when he argued that defendant was guilty of attempting to kill Wendy. Furthermore, the prosecutor made no reference to implied malice during this portion of the argument and did not use any words contained within the court's instructions defining implied malice. He mentioned the term "implied malice" only once when introducing the topic of malice aforethought (describing that malice aforethought could be express or implied) but thereafter argued only that defendant intended to kill and acted with express malice.
The prosecutor's argument regarding conspiracy to commit murder concluded, "Based on all of the evidence, the only reasonable conclusion is that the defendants intended to kill Wendy." The prosecutor ended his closing argument stating, "[W]e know what happened .... Antonio [ ] and [defendant] went to Wendy's home with the intent to murder her. They had conspired. They had a plan. They went there, and they executed that plan."
We, therefore, conclude that the jury necessarily found defendant guilty of conspiracy to commit murder on a proper theory, i.e., based on express malice or intent to kill. The instructions do not warrant a reversal of defendant's conviction for conspiracy to commit murder.
2. The court's instructions did not permit the jury to convict defendant of attempted murder without finding that he intended to kill.
Defendant argues that the trial court erred in instructing the jury that attempted murder was a natural and probable consequence of the conspiracy to commit murder (CALCRIM No. 417) because it allowed the jury to convict without finding that defendant specifically intended to kill and allowed conviction based upon another defendant's intent. We reject defendant's argument.
The trial court instructed the jury with CALCRIM No. 417 (Liability for Coconspirator's Acts). The trial court erroneously described the instruction as applicable to determining whether defendant was guilty of conspiracy to commit murder (the target offense) and instructed, "To prove that [defendant or Antonio] is guilty of the crimes charged in Count 2," it must be proved that "one the defendants conspired to ... [m]urder," another conspirator "committed assault with a deadly weapon, false imprisonment, residential burglary, or attempted murder to further the conspiracy," and those crimes "were natural and probable consequences of the common plan or design of the crime that the defendant conspired to commit." As the parties acknowledge, CALCRIM No. 417 is used to determine whether a defendant guilty of conspiracy to commit murder was liable for the non-target crimes committed by his other conspirators. If the jury followed the court's instruction to apply it determining whether defendant committed count 2, then it could not have affected the verdicts on the other counts of attempted murder, assault with a deadly weapon, burglary, and false imprisonment.
The prosecutor, however, correctly argued that CALCRIM No. 417 should be used to determine whether to convict defendant of counts 1, 3, 4, and 5, not conspiracy, and the jury could do so if it convicted defendant of conspiracy to commit murder and defendant's acts of attempted murder, assault, false imprisonment, and burglary were the natural and probable consequence of the conspiracy to commit murder. If the jury applied the instruction as argued to determine defendant's culpability of attempted murder, we can see no error in such an application. According to the instruction, it would apply only if the jury found defendant guilty of conspiracy to commit murder. As we discussed, the instructions for conspiracy to commit murder required the jury to find that defendant intended to kill in addition to the elements of murder. Because the jury would have found that defendant had an intent to kill before applying the natural and probable consequences theory, we can be assured that the jury found defendant had an intent to kill before applying the theory to convict defendant of attempted murder, which also required an intent to kill. Relying on People v. Iniguez (2002) 96 Cal.App.4th 75, 79, defendant argues that the crime of attempted murder cannot be based on conspiracy liability because the crime of conspiracy to commit attempted murder does not exist. However, that case is inapposite and only holds that there is no crime of conspiring to commit attempted murder and does not address attempted murder as a natural and probable consequence of a conspiracy to commit murder. (See ibid.) Here, defendant was convicted of "conspiracy to murder, not conspiracy to commit a lesser crime that resulted in murder. There is thus no possibility [he was] found guilty of [attempted] murder on a natural and probable consequences theory." (Beck, supra, 8 Cal.5th at p. 645.)
More importantly, the prosecutor did not apply CALCRIM No. 417 to defendant. The prosecutor argued that defendant committed the acts of attempted murder, assault with a deadly weapon, and false imprisonment. The prosecutor used the natural and probable consequences theory to explain Antonio was guilty of these crimes even though they were committed by defendant because defendant's crimes were the natural and probable consequence of Antonio conspiring to commit murder. Furthermore, the court instructed the jury on the elements of attempted murder with CALCRIM No. 600, which required the jury to find that defendant specifically intended to kill.
Defendant argues that Antonio falsely imprisoned Wendy by holding her down on the bed. However, although the evidence conflicted as to whether Antonio held her down or pushed her onto the bed, the evidence was clear that Antonio ran after E.G. when defendant and Juan entered the bedroom and that they were on top of Wendy as they stabbed her and she struggled to get away. Based on the evidence, we conclude beyond a reasonable doubt that the jury instruction regarding natural and probable consequences had no effect on the jury's false imprisonment verdict.
Therefore, we conclude that the jury necessarily found the defendant guilty of attempted murder based on express malice or intent to kill. The instructions do not warrant a reversal of defendant's conviction for attempted murder.
II. The trial court did not err in admitting Antonio's voicemails to Wendy as the admission of a party opponent.
A. Background
As we described above, Antonio left two voicemails for Wendy a few days after the incident. The first message included Antonio's admissions that it was his fault that defendant would go to prison for years and that Antonio tried to kill Wendy because he believed she was with another man. In the second message, Antonio again acknowledged responsibility for what he had done to Wendy and said that he had spoken to his brother and they agreed to give her a huge amount of money.
The prosecutor filed a motion in limine to admit voicemails as both the admission of a party (Evid. Code, § 1220) and a declaration against interest (Evid. Code, § 1230). Defendant filed a written objection arguing that it violated his federal Sixth Amendment right to confront witnesses as interpreted by the Aranda-Bruton doctrine. Defendant also objected that the voicemails were not admissible as coconspirator statements (Evid. Code, § 1223).
The Aranda-Bruton doctrine refers to our Supreme Court's decision in People v. Aranda (1965) 63 Cal.2d 518, overruled on other grounds as recognized in People v. Fletcher (1996) 13 Cal.4th 451, 455-456 and the United States Supreme Court decision in Bruton v. United States (1968) 391 U.S. 123.
During the hearing on the motion, the prosecutor argued that the voicemails were nontestimonial and could be admitted as to defendant and Antonio as statements against Antonio's penal interest. Defendant's counsel objected, stating she did not understand the prosecutor's argument that Aranda-Bruton did not apply, but did not address the requirements for admission pursuant to Evidence Code section 1230. The trial court rejected defense counsel's argument and found "this is not an Aranda-Bruton issue, and I'm going to allow it." (Italics added.)
Defendant's counsel did not make any additional objections to the voicemails or transcripts when introduced at trial, and the trial court admitted them into evidence.
B. Applicable Law and Standard of Review
"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question [citations]." (People v. Waidla (2000) 22 Cal.4th 690, 725.) We review a trial court's decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion. (People v. Grimes (2016) 1 Cal.5th 698, 711.)
"A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) "The defendant bears the burden of showing a clear abuse of discretion by the trial court in admitting evidence." (People v. Royal (2019) 43 Cal.App.5th 121, 144, citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, overruled on other grounds recognized by People v. Leon (2020) 8 Cal.4th 831, 848; see Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
"A declaration against interest is an exception to the general rule that hearsay statements are inadmissible under California law. (Evid. Code, §§ 1200, subd. (b), 1230.) 'Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was so far against the declarant's interests, penal or otherwise, that a reasonable person would not have made the statement unless he or she believed it to be true.' [Citation.] The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citation.] '" 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.'" '" (People v. McDaniel (2021) 12 Cal.5th 97, 132.)
A party seeking to admit a hearsay statement as a declaration against penal interest under Evidence Code section 1230 "must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." (People v. Duarte (2000) 24 Cal.4th 603, 610-611.)" '[A] person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements." (People v. Grimes, supra, 1 Cal.5th at p. 711.)
" 'A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.'" (People v. Jackson (2016) 1 Cal.5th 269, 366; see People v. Cowan (2010) 50 Cal.4th 401, 465-466.)
C. Analysis
1. Defendant forfeited this objection by not raising it below.
The People argue that defendant forfeited his objection that Antonio's voicemails did not meet the requirements for admission pursuant to Evidence Code section 1230 because he only objected to admission of the voicemails as violating his right to confrontation. We agree. Evidence Code section 353, subdivision (a) provides in relevant part, that a judgment will not be reversed because of the erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." Defendant's specific claim on appeal is that the trial court erred by admitting Antonio's voicemails under Evidence Code section 1230 because they were "not inculpatory," "utterly self-serving," "utterly unreliable," and "not explicitly inculpatory" as to defendant. At the motions hearing, defense counsel objected only on Aranda-Bruton grounds (an argument that the admission of such evidence would violate defendant's Sixth Amendment right to confront his accusers) and did not otherwise argue that the evidence failed to meet the requirements for admission under Evidence Code section 1230, nor did she object at all when the evidence was offered at trial. (See People v. Cowan, supra, 50 Cal.4th at pp. 465-466 [interpreting Evidence Code section 353 and holding that Cowan forfeited his objection to a writing pursuant to subdivision(a)(1) of Evidence Code section 1237 by objecting only as to subdivision (a)(3) of Evidence Code section 1237 in the trial court].)
Therefore, we conclude defendant has forfeited the issue.
2. Even if not forfeited, we conclude the trial court did not abuse its discretion in admitting Antonio's voicemails and find the error, if any, harmless.
We reject defendant's argument that the trial court abused its discretion in admitting evidence of Antonio's two voicemails left for Wendy just after the incident. In People v. Cortez (2016) 63 Cal.4th 101, our Supreme Court addressed defendant Norma Cortez's challenge to the admission of codefendant Rodrigo Bernal's out-of-court statement that he and Cortez together shot some gang members. (Id. at p. 105.) Oscar Tejeda, the nephew of Bernal, stated to police that Bernal said a woman named" 'Norma'" was driving Bernal in her car while Bernal shot at rival gang members. (Id. at p. 108.) At trial, Tejeda denied that Bernal had made these statements. (Ibid.) The prosecution played a tape of Tejeda's interview. (Id. at p. 122.) The trial court ruled that Bernal's statements to Tejeda were admissible as to Cortez under Evidence Code section 1230. (People v. Cortez, at pp. 122-123.)
The People v. Cortez court found that the trial court did not abuse its discretion in concluding that Bernal's statements were against his penal interest. (People v. Cortez, supra, 63 Cal.4th at p. 126.) It rejected Cortez's arguments that the portions of Bernal's statement to Tejeda referring to Cortez were not disserving of Bernal's interest because statements as to who accompanied Bernal during the shooting did not make him more or less culpable in the shooting. (Id. at pp. 126-127.) The Supreme Court disagreed that Bernal's references to Cortez indicated only that she "accompanied" Bernal because Bernal's references to Cortez, along with the other evidence, suggested that he and Cortez had engaged in a joint, planned drive-by shooting, thus showing premeditation and implicating him in a conspiracy to commit murder by means of a drive-by shooting. (Id. at p. 126.) Additionally, Bernal's statement that the person he went with to shoot rival gang members drove provided evidence of an overt act, one of the elements of conspiracy and, therefore, references to a criminal companion was against his penal interest. (Ibid. ["declarant's statement that he was paid by the defendant to commit the killing 'was specifically disserving to [the declarant's] interests in that it intimated he had participated in a contract killing-a particularly heinous type of murder-and in a conspiracy to commit murder' "], quoting People v. Samuels (2005) 36 Cal.4th 96, 121.) Additionally, the portions of Bernal's statement that implicated Cortez were not exculpatory or self-serving, and he consistently assigned the most blame to himself by admitting he was shooter and never shifting blame to Cortez. (People v. Cortez, at p. 128.) Bernal's statements were made to a family member and not to improve his situation with police, and the setting promoted truthfulness. (Ibid.)
Here, Antonio left voicemail messages for Wendy, a woman who told police that he was involved in assaulting her, and asked her to forgive him because he "should've not done that that to" her. This was an admission that Antonio had been involved in Wendy's attack, and it was against his own interests. Antonio stated that he knew defendant "won't get out anymore"; Antonio did not know the length defendant's punishment would be ("how many years he'll get") but acknowledged, "[T]hat's my fault," and defendant was in jail "because of [Antonio]." Antonio's statements are an acknowledgement that defendant would be convicted for his involvement in the assault and punished. Antonio then admitted that he tried to kill Wendy because he had been told that she was with someone else and was jealous. The trial court did not abuse its discretion in determining that Antonio's admissions to Wendy that he tried to kill her, coupled with his certainty that defendant would be punished, was disserving of Antonio's interests and evidence that he and defendant conspired to murder Wendy.
In the second voicemail message, Antonio indicated that both he and defendant had agreed to provide Wendy with a "huge amount of money" which, combined with Antonio's statements that he "should've not done that to" Wendy and his requests for forgiveness, similarly disserved Antonio's interests because such offers to compensate Wendy were evidence that he and defendant had caused Wendy's injuries. The offer of money suggested that Wendy's testimony would be damaging if she were to testify against them.
Additionally, as in Cortez, the portions of Antonio's statement that implicated defendant were not exculpatory or self-serving, and Antonio consistently assigned the most blame to himself by admitting that he intended to kill Wendy, he never shifted blame to defendant, and admitted responsibility for involving defendant in the crime. Antonio's recorded messages to Wendy, the victim of his crimes, were obviously not made to improve his situation with police and made in a private setting that promoted truthfulness, as one would not admit to a crime that one did not commit.
The trial court did not abuse its discretion in concluding that Antonio's incriminating statements were declarations against interest. The circumstances surrounding the statements had sufficient indicia of trustworthiness and were sufficiently against Antonio's interest so as to qualify as an exception to the hearsay rule under Evidence Code section 1230.
Defendant argues that the trial court abused its discretion in admitting Antonio's statements because, "as to [defendant], they were not explicitly inculpatory." However, Evidence Code section 1230 provides that the statements must be against the declarant's interest (Antonio's) and does not require that they be against the interest of any of the parties against whom they are being used. Defendant fails to cite any authority for his argument that the statements must be against his interest in order to be admissible against him.
Even if the trial court erred in admitting Antonio's voicemails, defendant has failed to show that it is reasonably probable that he would have received a more favorable outcome absent the alleged error. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Parks (1971) 4 Cal.3d 955, 960-961 [applying Watson harmless error analysis to erroneous admission of evidence pursuant to Evidence Code section 1237].) This Court asks whether," 'after examin[ing] the entire cause, including the evidence,'" it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, at p. 836.)
In closing argument, defendant's trial counsel attacked Wendy's credibility and challenged her testimony that defendant, and not Antonio, stabbed her and argued that she accused defendant to protect Antonio. The voicemails were consistent with defendant's argument that Wendy falsely accused defendant in that Antonio may have considered himself responsible for defendant being in jail because he attacked Wendy and she blamed defendant. The jury also could have believed that Antonio was responsible for defendant being in jail because Antonio embroiled defendant in the attack on Wendy. The voicemails were not strongly incriminating as to defendant. Furthermore, Antonio testified that defendant admitted that he had stabbed Wendy.
Given the entirety of the evidence, we cannot agree with defendant that the outcome of the trial would have been different if the trial court had excluded Antonio's voicemails to Wendy. Even if the trial court erred in admitting Antonio's voicemails, any such error was harmless.
Having concluded that the trial court did not abuse its discretion in admitting Antonio's voicemail messages pursuant to Evidence Code section 1230, we do not address defendant's other arguments that the voicemails were not admissible as coconspirator statements (a basis for admission not advanced by the prosecutor and not relied upon by the trial court), or only admissible as to Antonio as a party admission and subject to a limiting instruction as to defendant (see Evid. Code, § 1220). We note, however, that the voicemails could properly be used to prove the existence of the conspiracy. (See People v. Sully (1991) 53 Cal.3d 1195, 1231 [statements were made in furtherance of conspiracy where they reasonably could be viewed as attempt to commit potential witness to silence].) Although the trial court instructed the jury that it could "not consider statements made after the goal of the conspiracy had been accomplished to prove there was a conspiracy as to [defendant.]" to address Antonio's voicemail messages, it need not have because the voicemail messages were properly admissible pursuant to Evidence Code section 1230.
III. Defendant is entitled to resentencing under section 654.
The trial court stayed the sentences and enhancements for counts 1, 3, 4, and 5 pursuant to former section 654. Defendant argues that his case must be remanded for resentencing so that the trial court may exercise its discretion under recent amendments to section 654. Defendant contends that because his case is not yet final on appeal, he is entitled to the benefit of section 654, as amended, pursuant to the principles of retroactivity set forth in In re Estrada (1965) 63 Cal.2d 740. The People agree that we should remand the matter for resentencing and permit the trial court to reconsider its sentencing choices under the recent amendment. We accept this concession.
At the time of defendant's sentencing, former section 654, subdivision (a) required the trial court to punish defendant in accordance with the provision that provided for the longest potential term of imprisonment. (Stats. 1997, ch. 410, § 1, p. 2753.) Section 654 "expressly prohibits separate punishment for two crimes based on the same act, but has been interpreted to also preclude multiple punishment for two or more crimes occurring within the same course of conduct pursuant to a single intent." (People v. Vargas (2014) 59 Cal.4th 635, 642; accord, People v. Harrison (1989) 48 Cal.3d 321, 335.) Effective January 1, 2022, Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518) amended section 654 to provide the trial court with the discretion to choose the count for which it will impose punishment. (Stats. 2021, ch. 441, § 1.)
Here, the trial court sentenced defendant on count 2 (providing for the longest term of punishment) and stayed the sentences for counts 1, 3, 4, and 5. The amendment of section 654 effected an ameliorative change to the law as trial courts are no longer required to impose sentence under the provision that provides for the longest term of imprisonment when a defendant is convicted of multiple crimes for a single act or omission. Thus, as the parties agree, defendant is entitled to the retroactive application of section 654, as amended by Assembly Bill 518, because there is no indication that the Legislature intended the law to apply prospectively only, and this case is not yet final on appeal. (See, e.g., People v. Mendoza (2022) 74 Cal.App.5th 843, 861-862; People v. Sek (2022) 74 Cal.App.5th 657, 673-674; People v. Mani (2022) 74 Cal.App.5th 343, 379-380.)
We will therefore remand the matter for resentencing under section 654, as amended by Assembly Bill 518.
IV. The trial court erred in sentencing defendant pursuant to section 12022.7, subdivision (e) where the jury convicted defendant pursuant to section 12022.7, subdivision (a).
As to counts 1 and 3, the trial court enhanced defendant's sentence four years, the penalty provided by section 12022.7, subdivision (e), for personally inflicting great bodily injury under circumstances involving domestic violence, as recommended in the probation report. However, the probation report failed to reflect amendments to the original information which substituted section 12022.7, subdivision (a) in place of section 12022.7, subdivision (e). The jury found true enhancements under section 12022.7, subdivision (a) as to counts 1 and 3, which are punishable by only three years.
The parties agree that the trial court erred, as do we. As we are remanding for resentencing in light of amendments to section 654, the trial court should correct this error at that time.
DISPOSITION
Defendant's sentence is vacated, and the matter is remanded for resentencing so that the trial court may exercise its discretion under section 654, as amended by Assembly Bill 518 (Stats. 2021, ch. 441, § 1), and correct the section 12022.7, subdivision (a) enhancements errors as to counts 1 and 3. The judgment is otherwise affirmed.
WE CONCUR: LEVY, J., FRANSON, J.