Opinion
C062401 Super. Ct. No. 08F03567
07-11-2012
THE PEOPLE, Plaintiff and Respondent, v. J. DOUGLAS HALFORD et al., Defendants and Appellants.
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendants J. Douglas Halford and Mark Hernandez of the second degree murder of a homeless man, Michael Wentworth, and the attempted murder of the decedent's homeless friend, Randy Terrell. Terrell taunted and threatened defendants for harassing Danny "Old Man Dan" Rasmussen, his 62-year-old homeless neighbor, and defendants, believing Terrell was another man who had beaten their 56-year-old diabetic friend and mentor, Danny Hughes, pursued Terrell and a fight ensued. The jury rejected defendants' claims of self-defense. On appeal, both defendants assert instructional error. We affirm.
FACTS
The Setting. Many homeless people live in close proximity to Loaves and Fishes, an organization that provides coffee and pastries at 7:00 a.m., a place to shower, and lunch for up to 900 people beginning at 11:30 a.m. every weekday. All of the homeless who were either victims or witnesses in this case gather at Loaves and Fishes. They live under trees and shrubs along the river, up on the levee, and in an open clearing they call "the snake pit." They eat together, sleep together, drink together, share drugs, and take care of one another. Without facilities, they use what they call "the shitter," but some of the homeless also urinate on their neighbors' properties.
Something of a Renaissance man, Danny Hughes owns a home very near the homeless encampments by the river. He had been a professional musician as well as an operating engineer, and he earned six first-place medals at the California State Fair for his cookies. He treasured the guitar he had owned for 40 years like a child. But he was in poor health after using methamphetamine for 40 years, and as a diabetic, he needed to adhere to a strict diet and insulin regimen. Although he installed a fence with a locked gate to secure the perimeter of his property, Hughes displayed a tolerant approach to his homeless neighbors. His more immediate and pressing problem was his old friend, Tommy Duke.
The Two Dans. Danny Hughes had been a friend of Tommy Duke for many years. But Duke became very violent when he drank, which he did with some regularity. On one occasion, Duke used Hughes's treasured guitar to smash Hughes's drum set. Duke then attacked Hughes, and Hughes believed Duke was trying to kill him. Duke returned many times, leading Hughes to repeatedly call 911. Eventually, defendant Mark Hernandez moved in with Hughes to protect him and to help him monitor his diet and insulin. Sixty-five-year-old J. Douglas Halford, another friend of Hughes, was a houseguest staying with Hernandez and Hughes at the time of the events leading up to the alleged crimes.
In late April 2008 Tommy Duke tore down Hughes's fence, entered his house, and threatened to kill him. Hughes called Hernandez and Halford for assistance. They escorted Duke out the front gate and instructed him not to return. En route, Halford grabbed Duke by the collar, pointed a big knife at his eye, and said, "'The only reason your fucking eye is not disappearing and your life is [sic] disappearing is because of that daughter that you have.'"
On the morning of April 30, 2008, Halford's routine morning trip to Starbucks was frustrated by his encounter with Danny Rasmussen, who had relocated some of his belongings from under a mulberry tree and placed them in a shopping cart in front of Hughes's gate. Rasmussen angered Halford. He threatened Rasmussen with a knife. Hernandez was more conciliatory. Fearful of the knife, Rasmussen grabbed what belongings he could and ran away. He testified someone kicked him and someone shouted, "'If you ever come back, I'll fuck you up.'"
Frazzled from his encounter with defendants, Rasmussen, that morning over coffee, told several of his friends and acquaintances what had happened. Incensed, Randy Terrell, a 200 pound, physically imposing, 31-year-old homeless man, was determined to avenge Rasmussen. Tragically, Randy Terrell looked like Tommy Duke.
Witnesses to the Stabbings. The prosecution's witnesses provide a vivid composite of human suffering. The percipient witnesses' afflictions are many: physical and mental disabilities, addiction, poverty, joblessness, and homelessness. Defendants argued vociferously that the witnesses either could not see, could not remember what they saw, and could not be trusted. From defendants' view, the witnesses made miserable historians.
So, for example, both victims tested positive for methamphetamine in their systems, a drug that makes the user feel empowered, oblivious to pain, and easily agitated. Randy Terrell testified he drinks as many Hurricane High Gravity 40-ounce beers as he can earn by turning in recyclables for money every day. The alcohol intensifies his anger. On the day of the stabbings, he was pretty drunk, and at trial his memory of what transpired was "very blurry." He also uses methamphetamine and smokes marijuana.
Robert Otis had been homeless for 14 years at the time of the trial. Called "Bug Eye" because his left eye was disfigured and he could not see out of it, Otis's remaining vision was very blurry.
Patrick Hill completed a rehabilitation program a few months before the stabbing. Michael Wentworth, the decedent, was known as "Gremlin," jumped around a lot, and, at 114 pounds, he too drank and used drugs. He had been released from the Sacramento County Jail that very morning. Wentworth's good friend and benefactor, Patrick Hill, went to the river to look for him, and brought a case of beer to share with Wentworth and a group of people he knew would be there. Hill drank two or three beers, Wentworth drank some, and they shared the rest with their friends.
Thus, the jury was well-acquainted with the witnesses' shortcomings. Flawed or not, the percipient witnesses testified to what they saw and heard, and it was the jury's prerogative, not ours, to assess their credibility and their ability to perceive, recall, and recount what happened on the evening of April 30. We provide a brief synopsis of the key witnesses' accounts of what happened.
According to Hughes, someone who initially appeared to be Tommy Duke but who was actually Randy Terrell rode a bicycle in circles in front of Hughes's house around noon, walked his back-fence line about 3:00 in the afternoon, and again circled in front of the house on a bicycle around 6:00 p.m. He had a knife in his hand and shouted, "Where's the mother fucker that beat up my old man homeboy? I got a knife. I'm going to stick him." Hughes testified the knife looked like a cheap facsimile of a Buck knife with a rubber handle. Hughes heard Halford respond, "I'll deal with the motherfucker," and he saw both defendants go out the front gate and follow Terrell up a hill to the levee.
Terrell candidly admitted he was extremely angry about how Rasmussen had been treated. He had nursed his anger with his Hurricane High Gravities, was "pretty buzzed," and returned to Hughes's house around 6:00 p.m. to start a fight. He taunted the occupants with threats like, "You guys have a problem picking on old men, come out here and pick on me." According to Terrell, Hernandez came out of the house, instructed Terrell to "[w]ait a minute," and then went back in the house. Fearing Hernandez was getting a weapon, Terrell left.
Terrell joined his friends Otis and "Bandanna" in the snake pit. After a minute or two he walked over to Hill and Wentworth and had a short conversation before returning to Otis and Bandanna. A few seconds after that, defendants came up over the hill and approached him. Otis handed Terrell a knife. As he told the jury, he was angry and confronted defendants, asking, "Why you guys got to mess with an old man?" He noticed that Halford was carrying a Buck knife at his side.
Terrell's friends Hill and Wentworth immediately came to his aid. Wentworth was hopping around like a "leprechaun" or "a Mexican jumping bean," trying to diffuse the situation. As Hernandez, Wentworth, and Hill went off in one direction, Halford and Terrell started swinging knives at each other. Terrell testified that Halford stabbed him in his left upper arm. He did not see what happened to Wentworth.
Patrick Hill was urinating in the "shitter" and talking on his cell phone when Wentworth summoned him to come and help defend Terrell. He was still trying to zip up his pants as Wentworth ran up the hill. Hill saw Halford carrying a stick over his shoulder. As they met, Halford said to Terrell, "You jumped our friend and we're gonna kill you." According to Hill, Terrell did not have a knife.
Halford, according to Hill, started swinging the stick. Hill, still on the phone and continuing to zip up his pants, told Wentworth, "[W]e're not gonna let them jump him. We can't let that happen." Wentworth jumped in front of Terrell and knocked Halford to the ground. Hernandez pulled out two knives and gave one to Halford. Hill backed Hernandez up to the bike trail. He removed a beer he had stored in his back pocket and threw it at Hernandez but missed.
Turning, Hill saw Halford and Wentworth swinging at each other. As he started to run, he saw that Wentworth was in trouble. Terrell entered the fray. Halford stabbed Wentworth in the arm, and as Wentworth stumbled backwards, Hernandez stabbed him in the back. Halford stabbed him in the chest. Halford and Hernandez then walked away.
Otis had been living in the same tree with Terrell at the time of the stabbings. He saw Terrell come up over the hill, followed shortly by both Halford and Hernandez. Otis, like Terrell and Hill, testified that Halford was carrying a big stick. He, too, heard Halford say, "I'm going to kill you." He confirmed he gave Terrell a knife and a scuffle ensued. Halford swung at Terrell, Wentworth jumped in, and then he fell. After he got up, he began fighting with Hernandez. Otis saw Hernandez make a thrusting or stabbing motion toward Wentworth's back. Halford and Hernandez then walked away.
Others gave similar accounts, although some of the specific details differed. Shawn Medlock and his fiancée, Elizabeth Chrisman, were also homeless. They both saw Hernandez with a stick and a knife. Medlock saw Hill talking on his cell phone, Terrell walking toward Hernandez, and Hernandez and Halford both holding knives. He saw Halford stabbing Wentworth and stating, "You mother fucker, I'm gonna kick your ass. You mother fucker, fucker, fucker." Terrell, who himself had been stabbed, asked Medlock and Chrisman for a knife. Wentworth was trying to get away, but he collapsed. They tried to administer first aid, but Wentworth died of a stab wound to his chest.
Terrell, Hill, Hill's girlfriend, and Hughes all called 911 to report the stabbing. Hill followed defendants down the hill. Hernandez had a wound on his arm and said someone had thrown a beer at him. Police officers arrived at Hughes's house. Halford told the officers, "These homeless guys are the ones that should be in handcuffs. I've been getting into it with those guys. They come down to the yard at 1629 Basler and piss on the yard. Today I went up to the levee to talk with them and ask them to stop. As soon as I got up there, these guys just started coming at me. They had knives and bottles and I thought they were gonna hurt me. I had a knife with me. I might have nicked one with the knife." When asked if he had any weapons, Halford produced a small folding knife from his right front pocket. The blade was too short to have inflicted the fatal wound to Wentworth's chest, but it could have caused a second wound in his right upper back.
Hernandez told a neighbor who visited him in jail that he thought the person they were following up on the levee was Tommy Duke. Halford had injuries to his left and right middle fingers, and Hernandez had injuries to both knees and his left middle finger.
DISCUSSION
I
Defendants both challenge two standardized instructions the court gave the jury explaining various nuances of self-defense. The court instructed the jury that: "A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472.)
The court also instructed the jury: "A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if:
"1. He actually and in good faith tries to stop fighting;
"2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting;
"And
"3. He gives his opponent a chance to stop fighting.
"If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self defense arose.
"If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting." (CALCRIM No. 3471.)
Defendants, presenting their version of the facts, argue there was not substantial evidence to warrant the instructions. The question is not, however, whether there is substantial evidence to support defendants' version of the facts that justified their use of deadly force, but whether there is substantial evidence of the alternative narratives presented by the prosecution and embodied in the challenged instructions that they either provoked the fight or engaged in mutual combat.
As to the propriety of delivering CALCRIM No. 3472, defendants rely on a case decided in the late 19th century. In People v. Conkling (1896) 111 Cal. 616 (Conkling), the decedent had blocked off a road that ran across his leased land. Defendant, armed with a rifle, tore down the fence and traveled the road to the post office. On his return, he encountered the victim. (Id. at pp. 619-620.) There was no evidence whether the defendant or the victim was the initial aggressor. The defendant admitted shooting the decedent but claimed self-defense. (Id. at pp. 620-621.)
It is true the jury instruction given in Conkling suggested that the defendant might have forfeited his right to defend himself by his conduct preceding the killing. Reversing on this ground, among others, the Supreme Court explained: "[The instruction] says in effect that, if the necessity for the killing arose by the fault of defendant, then the killing was not done in self-defense; and, again, it says if the danger which surrounded defendant was one brought upon himself by his own misconduct he cannot defend himself against it. Aside from any question as to the immediate cause which at the time of the killing precipitated the affray, this language of the instruction is broad enough to justify the jury in believing that it was such a fault or misconduct upon the part of the defendant, in attempting to travel this road under existing circumstances, as to deprive him of the right of self-defense if attacked by deceased at the point where the road was obstructed. Such, certainly, is not the law, and neither court nor counsel for the people would so contend." (Conkling, supra, 111 Cal. at pp. 625-626.)
Defendants insist that they, like Conkling, retained the right to defend themselves when they left the safety of Hughes's house and pursued Terrell up on the levee. The Attorney General does not suggest otherwise. But the vice, if there is one, is not in the law as the court explained it, but in the quantum of evidence to support giving it. Defendants contend there were no facts to support the instruction, and the error was exacerbated by the prosecutor's liberal references to the instruction during his closing argument. Indeed, defendants accuse the prosecutor of using the concept embodied by the instruction to divert the jury's attention from the real issue of deciding whether self-defense was reasonable and necessary during the altercation on the levee.
But to accept defendants' argument is to ignore half the case. The jury was certainly free to view defendants' conduct as a reasonable attempt to peacefully settle a long-simmering dispute with Tommy Duke and thus to reject the prosecution's theory that when defendants armed themselves with a stick and knives and pursued Terrell, whom they believed to be Duke, up the levee and announced their intent to kill him, they had provoked the fight to create an excuse to use force. But the prosecution's evidence of defendants' conduct preceding and during the fight was more than ample to justify the instruction and to give the jury the guidance it required to apply the many aspects of the right to self-defense. If, as the prosecution's evidence suggested, defendants were the first assailants, never withdrew from the affray, and, as the aggressors, were responsible for the fight, then the jury could find, as the instruction directed, that defendants were not entitled to the benefit of self-defense. CALCRIM No. 3472 embodies those principles and the court properly delivered it to the jury.
While there may be more conceptual landmines in CALCRIM No. 3471 around the notion of "mutual combat," the evidentiary basis for the instruction is far stronger than the meager showing defendants highlight in People v. Ross (2007) 155 Cal.App.4th 1033 (Ross). In Ross, the Court of Appeal had occasion to examine what mutual combat means, particularly because the court refused the jury's request for a definition of the phrase. We agree with the court that "[l]ike many legal phrases, 'mutual combat' has a dangerously vivid quality. The danger lies in the power of vivid language to mask ambiguity and even inaccuracy. [Fn. omitted.] Here the jury was told that participation in 'mutual combat' conditionally bars the participants from pleading self-defense if either is prosecuted for assaulting the other. [Fn. omitted.] The 'combat' element of this rule is clear enough, at least for present purposes. It suggests two (or more) persons fighting, whether by fencing with swords, having a go at fisticuffs, slashing at one another with switchblades, or facing off with six-guns on the dusty streets of fabled Dodge City. The trouble arises from 'mutual.' When, for these purposes, is combat 'mutual'? What distinguishes 'mutual' combat from combat in which one of the participants retains an unconditional right of self-defense?" (Ross, supra, 155 Cal.App.4th at pp. 1043-1044.)
Culled from a distinguished line of cases, the court held that "'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (Ross, supra, 155 Cal.App.4th at p. 1045.) One who voluntarily engages in mutual combat must attempt to withdraw from it before he is justified in killing an adversary to save himself. "Mutual combat," as it relates to self-defense, is a fight "'begun or continued by mutual consent or agreement, express or implied. [Citations.]'" (Ibid.)
Defendants contend there was no agreement to fight, and therefore the instruction should not have been given. In Ross, the defendant had been invited by his friend to move into a trailer already occupied by the friend, his girlfriend, her four young children, and her mother. (Ross, supra, 155 Cal.App.4th at pp. 1036-1037.) The girlfriend was unhappy with the arrangement. (Id. at p. 1037.) Her friend, the victim, got into a shouting match with the defendant and told him, "'"Fuck you."'" (Ibid.) The defendant told her to watch her language around the children, and a heated exchange ensued, which lasted for several minutes. (Id. at pp. 1037-1038.) Ultimately, the defendant told the victim, "'"You sound like an old whore"'" or "'a fucking whore.'" (Id. at p. 1038.) She slapped him and then hit him again. He struck back, although the witnesses gave different accounts of how hard and how many times the defendant struck the victim. (Id. at pp. 1038-1039.)
On these facts, the court concluded, "We do not believe any reasonable juror faced with this evidence could conclude beyond a reasonable doubt that defendant and [the victim] at any time mutually agreed, consented, arranged, or intended to fight one another. Instead the evidence strongly suggests that the parties exchanged contemptuous remarks until [the victim] lost her temper and slapped defendant, whereupon he punched her back. [Fn. omitted.] This is not 'mutual combat' as that term has been explicated in California precedents. This does not mean that defendant was legally entitled to punch [the victim]. That was and remains a legitimate question for the jury. But the answer must hinge on whether defendant responded with reasonable force to avert a threat of violence against his person. There is no adequate basis here for a finding that defendant was at any time engaged in mutual combat with [the victim]." (Ross, supra, 155 Cal.App.4th at p. 1054.)
Defendants urge us to apply the same logic here. While the evidence of mutual combat may not be overwhelming, and, as we noted above, the phrase itself is plagued by a "dangerously vivid quality" masking ambiguity and inaccuracy, the course of events leading up to defendants' fight on the levee is of an entirely different nature than the spontaneous eruption of violence in Ross. There, a woman lost her temper and slapped the defendant, who had been crude and argumentative during their verbal sparring. There is no indication that there was any advance warning a physical confrontation would erupt. In short, there was no evidence of an express or implied agreement to engage in a mutual fight.
Certainly we must agree that defendants did not expressly agree to a fight with Terrell or anyone else on the levee. But defendants ignore the evidence of an implied agreement. Terrell appeared at Hughes's house throughout the day, riding in circles and taunting the occupants. By 6:00 p.m., he was drunk; brandishing a knife, according to Hughes; and shouting, "Where's the mother fucker that beat up my old man homeboy? I got a knife. I'm going to stick him." A reasonable juror could construe his remarks as an invitation to fight.
And defendants' responses suggest an acceptance of the offer. Hernandez yelled out, "Wait a minute," then went inside, possibly to arm himself. Halford told Terrell, "I'm right here" or "Here I am." Terrell fled, but defendants decided to pursue him. Halford informed Hughes, "I'll deal with the mother fucker" as he went out the front gate and followed Terrell up the hill.
Thus, there was not, as in Ross, a sudden explosion of violence. This was a confrontation that had been building for hours, even days, in that defendants believed Terrell was Duke and Duke had been an ongoing problem for some time. There was sufficient evidence they agreed to the pending fight, albeit with someone other than their intended opponent.
Moreover, there was also evidence that Terrell agreed to fight. No one disputes that he was the initial aggressor by circling in front of Hughes's house and threatening the occupants. But once he left, the jury was confronted with the question of who became the aggressor and who had the right to exert lethal force. Both sides offered their versions of what actually transpired on the hill. It was up to the jury to decide questions of credibility and determine the thorny issues involving self-defense under the circumstances. But given the fact that Terrell had taunted defendants, and defendants had taken their time to arm themselves and Halford expressed his intention to take care of that "mother fucker," there was sufficient evidence of the kind of mutuality Ross demands. Far from a spontaneous eruption of violence by one person against another, here the defendants and their victim, Terrell, provoked and engaged in the violent confrontation that followed. CALCRIM No. 3471 was properly given under these circumstances.
II
In People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), the California Supreme Court unhinged the liability of an aider and abettor from that of a perpetrator in a sea change opinion that now allows a jury to find an aider and abettor guilty of a greater offense than the perpetrator. Yet juries are routinely instructed 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. (CALCRIM No. 400.) In the aftermath of McCoy, the Courts of Appeal in People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego) and People v. Nero (2010) 181 Cal.App.4th 504, 514 (Nero) found the phrase "equally guilty" misleading. Moreover, in Nero the court held that an aider and abettor can be found guilty of a crime lesser than the crime committed by the perpetrator. (Id. at p. 514.)
Because, according to Nero, Hernandez may have been guilty of a lesser crime than the perpetrator Halford, he contends the court misled the jurors by instructing them in the language of CALCRIM No. 400 that if the jury found he was an aider and abettor, then he was "equally guilty" of the crimes Halford committed. He reiterates the many ways in which the jury could have found him much less culpable than Halford, including his solicitous attitude toward Rasmussen in front of Hughes's house, the consistent testimony that he played a secondary role and did not shout threats or profanities before or during the altercation, and the inconsistent testimony as to whether he actually stabbed anyone at all. Hernandez's contention, in light of the evolving trend to allow an aider and abettor's mens rea to "float free" of the perpetrator's, requires a scrupulous analysis of the charges, the evidence, and the jury's findings to determine whether on this record the court committed reversible error.
Hernandez and Halford were jointly charged with Wentworth's murder and the attempted murder of Terrell. And both were charged with the personal use of a deadly weapon within the meaning of Penal Code section 12022, subdivision (b)(1) in connection with the murder. But the information alleged that only Halford personally used a deadly weapon in connection with the attempted murder. The jury found Hernandez and Halford guilty of second degree murder and attempted murder, and the personal use allegations to be true. These findings are pertinent to our evaluation of the instructional error, if any, on aiding and abetting.
The evidence supported the jury's finding that Hernandez personally used a knife. Witnesses testified they saw him stab Wentworth. In Samaniego, supra, 172 Cal.App.4th 1148, the court held that although the defendant had forfeited his right to challenge the instructional error, it was nevertheless "harmless beyond a reasonable doubt because the jury necessarily resolved these issues against appellants under other instructions." (Id. at p. 1165.) The same is true here.
Because the jury found that Hernandez personally used a knife to stab Wentworth, his liability was for his own criminal act, not Halford's. He too became a perpetrator, and thus any of the nuances arising from the McCoy line of cases do not apply to his conviction for murder. In other words, the jury necessarily resolved that by using the knife and stabbing the victim, Hernandez was not a mere aider and abettor. Thus, any error in giving the instruction rendering the guilt of the perpetrator coextensive with the guilt of the aider and abettor is harmless beyond a reasonable doubt. The issue is not so readily resolved as it relates to Hernandez's conviction for the attempted murder of Terrell.
The Attorney General argues that Hernandez, like his counterpart in Samaniego, forfeited his right to challenge the instruction on appeal by failing to request appropriate clarifying or amplifying language. The court wrote, "CALCRIM No. 400 is generally an accurate statement of law, though misleading in this case. Samaniego was therefore obligated to request modification or clarification and, having failed to have done so, forfeited this contention." (Samaniego, supra, 172 Cal.App.4th at p. 1163.)
Hernandez insists that CALCRIM No. 400 is not generally correct because it subsumes the mens rea of a crime into the criminal act. But CALCRIM No. 400 should not be read alone. While it provides an introduction to the general principles of aiding and abetting, it is CALCRIM No. 401 that sets forth the elements for aiding and abetting and focuses on the defendant's personal mens rea. Thus, CALCRIM No. 401 provides: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] and [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] 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."
To the extent, as in Samaniego and Nero, CALCRIM No. 400 was misleading in this case, Hernandez should have asked for a clarification or modification. His failure to do so constitutes a forfeiture of his claim on appeal. Nevertheless, we conclude that on the record before us, if there was error in using the misleading phrase "equally guilty," and if Hernandez had not forfeited the right to challenge the misleading instruction, the error was harmless beyond a reasonable doubt. (Samaniego, supra, 172 Cal.App.4th at p. 1165.)
The evidence of Hernandez's participation in the murder and attempted murder are in sharp contrast to the evidence of the aider and abettor's involvement in Nero, supra, 181 Cal.App.4th 504, in which the court could not find beyond a reasonable doubt that the aider and abettor would have been found guilty of second degree murder in the absence of the instructional error. The aider and abettor, Lisa Brown, was the perpetrator's older sister and had been his legal guardian since their mother died when he was 13 years old. When Nero and Brown came out of a market, the victim was riding a bicycle in the parking lot. (Id. at pp. 507-508.) The victim had ingested cocaine and ethyl alcohol within hours of his death. According to Nero, the victim called his sister, who is a lesbian, a "bull dyke" and "bitch" and challenged him to a fight. (Ibid.) The victim grabbed a knife from his bicycle and stabbed Nero's arm. (Ibid.) Nero testified that when the victim dropped the knife, he picked it up and stabbed him in self-defense. His sister kept trying to stop the fight. (Id. at pp. 508-509.) According to the prosecutor, however, Brown handed her brother a knife. (Id. at p. 510.)
Thus, in Nero, Brown was guilty as an aider and abettor or not at all. The jury specifically asked the court whether an aider and abettor could bear less responsibility than the perpetrator. (Nero, supra, 181 Cal.App.4th at pp. 511-512.) The court reread the instruction that each principal is "equally guilty." (Id. at p. 512.) The Court of Appeal concluded: "Notwithstanding that these instructions suggest that Brown's mental state was not tied to Nero's, the jury still asked if they could find Brown, as an aider and abettor, guilty of a greater or lesser offense than Nero. This suggests to us that the aider and abettor instructions—namely, CALJIC No. 3.00—are confusing and should be modified. And where, 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 CALJIC No. 3.00 in response to the jury's question, misinstructed the jury." (Nero, at p. 518.)
CALJIC No. 3.00 is now CALCRIM No. 400.
Here there is no evidence that CALCRIM No. 400 confused the jury. The record in Nero was crystal clear: the jurors struggled to understand the meaning of "equally guilty" when there was such a blatant disparity between the mens rea of the brother and that of his sister. But unlike the jurors in Nero, here the jurors asked for no clarification of the meaning of the instruction.
Moreover, the facts before us bear little, if any, resemblance to the facts presented in Nero. In Nero, the fight was spontaneous; Nero did not even know the victim who initiated the confrontation, insulted his sister, and threatened him. There was evidence Brown tried repeatedly to stop the fight. Nero had not, as Halford had done here, announced an intention to harm or endanger the victim before getting involved in the altercation. Even if the jury accepted the prosecution's theory that Brown handed her brother a knife in the heat of the moment, her participation hardly can be compared to Hernandez's robust involvement in the fight on the levee with Wentworth and Terrell.
Thus, the jury heard the compelling evidence that Hernandez knew before he left Hughes's house and accompanied Halford to the levee that Halford was hell bent on "deal[ing] with the mother fucker." Hernandez armed himself with two knives and a long stick. He had observed Halford's violent threat to Tommy Duke when Halford held a knife to Duke's eye but benevolently refrained from stabbing him then because he had a young daughter. On the levee, Hernandez was in Halford's presence when Halford announced his intention to kill Terrell. Finally, and most importantly, Hernandez personally provided Halford one of the knives and proceeded to use the other one himself.
That is not to say that Hernandez's mens rea did not float free of Halford's. As McCoy and its progeny have now made abundantly clear, there is a critical distinction between a perpetrator's criminal act, for which the aider and abettor may be equally responsible, and his mens rea, which the jury must assess independently. But on this record, we have no reason to suspect that the jury did not follow its charge to determine whether Hernandez had knowledge of Halford's purpose and entertained the specific intent to aid and facilitate the attempted murder of Terrell. Furthermore, the jury was properly instructed to "separately consider the evidence as it applies to each defendant" and "decide each charge for each defendant separately."
In this case, unlike Nero, there is overwhelming evidence that Hernandez was an active participant in the attempted murder of Terrell from start to finish. Unlike Nero, we have no concern that the jury was confused by the phrase in CALCRIM No. 400 that an aider and abettor may be equally guilty with the perpetrator, expressing as it does that the act of one legally may be the act of all. And the jury was otherwise properly instructed to carefully evaluate Hernandez's mental state, separate and apart from Halford. As a result, we can conclude, as the court in Nero was unable to do, that any instructional error in CALCRIM No. 400 was harmless beyond a reasonable doubt.
III
Hernandez also asserts it was error to give the jury an adoptive admission instruction when, as here, there is no evidence of any accusation in Hernandez's presence calling for a denial. Specifically, he contends that testimony that Halford stated "I'm going to kill you" in Hernandez's presence is not an adoptive admission under the hearsay exception set forth in Evidence Code section 1221, and that accordingly, it was error to instruct on adoptive admissions. We agree.
Evidence Code section 1221 states: "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."
"'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.) The trial court must make a threshold determination whether the evidence is sufficient for a reasonable trier of fact to find a defendant adopted an admission by his silence. (People v. Davis (2005) 36 Cal.4th 510, 535.)
We conclude there was not sufficient evidence to support a finding that Hernandez adopted Halford's incriminating statement by remaining silent. Halford's statement, "I'm going to kill you" was not "an accusation" that Hernandez would be expected to respond to or to deny. Rather, the statement merely reflected Halford's subjective intent at the time. Thus, there was no evidentiary basis to support the instruction and it was error to do so.
Nevertheless, the error was harmless. The jury found that Hernandez personally used a knife in killing Wentworth. Given the overwhelming evidence that he was armed with two knives, carried a stick, and engaged in the fight, the fact that he stood mute in the face of his codefendant's threat would have had minimal, if any, impact on the jury. Nor was his claim of self-defense derailed by the possibility that the jury came to the erroneous conclusion, pursuant to this instruction, that he admitted guilt by failing to deny Halford's statement of intent. Based on the record before us, we conclude the adoptive admission instruction did not result in a miscarriage of justice because we can say, beyond a reasonable doubt, that Hernandez would have been found guilty of the charged offenses in the absence of the error.
DISPOSITION
The judgments are affirmed.
RAYE, P. J. We concur:
NICHOLSON, J.
BUTZ, J.