Opinion
D038857.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES WILLARD HALL et al., Defendants and Appellants.
James Willard Hall and Ronnie Jermaine Sherrors appeal their convictions of murder with a special circumstance arising out of the stabbing death of Steven Foth. Hall argues that the trial court erred in instructing the jury with modified versions of CALJIC Nos. 2.15 and 8.81.17, the prosecution committed misconduct in offering testimony it knew was perjured, and the trial court erred in presenting the jury with an erroneous verdict form. Sherrors contends that the prosecutor committed misconduct in his argument to the jury about the DNA evidence and that there is insufficient evidence to support the verdict because the testimony of the prosecutions principal witness could not possibly have been true. We agree that the court erred in giving a modified CALJIC No. 2.15 instruction, but conclude that the error was harmless. We find the defendants remaining arguments unavailing and affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Foth was a songwriter-musician who lived in San Francisco and ran a record store there (Rocket Records). Having grown up in San Diego, Foth had close friends here, including Grace Ko, Steve Poltz and Ken Horne. By the late 1990s, Rocket Records business began to decline; Foth began to experience financial problems and by 1999 had started using crack cocaine and "hanging around" with prostitutes. (All further dates are in 1999 except as otherwise noted.) After Ko became aware of Foths problems, she convinced him to come to San Diego for a couple of months to stay with her and try to get his life back in order. In early September, Foth moved into Kos home in Mission Hills; he was depressed and slept a lot.
On the afternoon of Wednesday, September 29, Ko and Foth drove to the Oceanside home of Louis and Christine Mello. Ko and Christine went shopping; Foth planned to spend time with Louis, visit some other friends and then return to Kos house to pick up Horne to join Ko and the Mellos for dinner at a Chevys restaurant in Carmel Mountain Ranch. Ko left the keys to her car, a black Audi A4, and her cell phone with Foth, as well as her Visa card so that Foth could put some gasoline in the car.
Foth visited with Louis until sometime between 1:30 and 2:00 p.m. and then drove to Poltzs apartment. Although Foth professed that he was not using drugs anymore, Poltz declined to give Foth any money because he was unconvinced by Foths statements, in part because Foth had spent a night away from Kos home in the first week after his arrival in San Diego and lied to his friends about where he was. Poltz offered, however, to pay for Foth to see a therapist he knew to help Foth deal with his problems. Foth told Poltz that he would think about it, but was antsy because he wanted to "get laid." While Foth was with Poltz, he called a couple of women with whom he had been sexually intimate in the past. Foth left Poltzs apartment about 5:30 p.m. Foth was wearing faded black Levis, a black T-shirt, Doc Marten wingtip shoes and a cheap plastic watch.
After Foth arrived back at Kos house, he spoke on the phone with Horne, saying that he was going to see another friend to borrow some money but would be back. Foth had not returned by the time Horne arrived but had left a note. At 6:50 p.m. (according to cell phone records), Horne called Kos cell phone, expecting to reach Ko, but Foth answered and told Horne that he would be back "in a bit." It sounded like Foth was driving at the time. After 15 minutes passed, Horne tried the cell phone again, but got no answer.
Ko and the others waited for Foth to arrive at Chevys and, by 7:00 p.m., she became concerned about where Foth was. Ko called her cell phone number every 10 minutes or so for the rest of the evening but only got the voice mail. Someone unsuccessfully attempted to use Foths ATM card at 8:56 p.m. and someone used Kos cell phone to call a pager owned by Michael Washington, a friend of Sherrorss and Halls.
In the late afternoon of September 30, a worker at the Pinery Tree Farms discovered Foths naked body in a brushy area near a work site on Highland Valley Road and pointed it out to his manager, Laurence Prindle. Although Prindle had come by the site several times that day, he had not seen the body earlier. Prindle called 911. Responding officers determined that Foth was dead and found a number of items at the scene, including a shirt, a pair of size eight sneakers, a Seiko wristwatch with a metal face, a broken fingernail and a pair of bloodstained white socks. They also found a circular bloodstain, one foot in diameter and two inches deep, near the fence and marks on the ground leading from the stain to the place where they found Foths body, suggesting that the body had been dragged. They also found a shoe print in the soil.
An autopsy showed that Foth, who was six feet, one-half inch tall and weighed 183 pounds, had bled to death. The body had approximately 83 stab wounds, many of which were in the upper chest and neck area, as well as abrasions on the back, defensive wounds to the right hand and wrist and a blunt force trauma to the head. It also had streaks of seminal fluid across the right thigh, an occurrence that is not unusual for a male homicide victim and that did not necessarily indicate the victim had been engaged in sex. The body tested negative for the presence of drugs.
On October 9, Lena Hixon told her close friend, Eric Bazile, that she had witnessed "something . . . pretty bad" and that two guys had threatened her life. Bazile and his friend Shahyid told Hixon to call the police. Hixon refused, so Shahyid made the call. Hixon left Baziles apartment and Shahyid followed her. The two argued, attracting the attention of the police, and Shahyid told the officers what Hixon had said. The officers arrested Hixon, who was carrying a razor blade.
Hixon falsely told police that she had committed this crime with two men named Benjamin Wilson and Terrence Smallgreen and that Smallgreen had lost his watch and left his shirt at the scene. A few days later, Hixon told Bazile that Sherrors and Hall were involved in the murder and asked Bazile to notify the police. Hixon repeated her statements in her subsequent police interview.
At trial of the charges against Sherrors and Hall, Hixon testified as follows:
In the late afternoon or early evening of September 29, Foth approached Hixon near University and Euclid Avenues and asked if she knew where to buy some rock cocaine. Although Hixon initially hesitated because she suspected that Foth was an undercover agent, she ultimately told him she knew where to get some; they drove in Kos Audi to an apartment on Wightman Street, where Sherrors and Hall were living. At the time, Sherrors, Hall and Hixon were handling drug sales for Hixons boyfriend, Michael Washington.
When Hixon whistled loudly, Hall and Sherrors came out of the apartment. Hixon told Sherrors that Foth was looking for cocaine and Sherrors spoke briefly to Foth, who was still sitting in the car. Sherrors and Hall got into the vehicle with Foth. Sherrors told Hixon they would be right back and the three men drove off.
After 15 to 20 minutes, Sherrors drove up in the Audi with Hall sitting in the back seat; Foth did not appear to be with them. Sherrors and Hall told Hixon that they had "hooked [Foth] up" and he was letting them use the car in exchange for drugs, a practice that is not uncommon for drug dealers. Sherrors told Hixon to get in the car to go smoke some "weed" and Hixon complied.
Sherrors initially had difficulty driving with the cars stick shift but seemed to have it figured out by the time he got onto the I-15 freeway. After awhile, Hixon became concerned because it was unusual for a dealer to keep a customers car for that period of time; Sherrors responded by explaining that he and Hall had robbed Foth, but Hixon thought he was kidding.
They continued to drive north until they neared Lake Hodges and exited the freeway onto a dark street. Sherrors parked the car in a dirt lot, told Hixon to stay there and said he and Hall would be right back. The men opened the trunk and Foth climbed out. Foth was clothed, but he was holding his hands as if they were tied. Hixon got out of the car and demanded to know what was happening; Sherrors grabbed her hands, breaking two of her acrylic fingernails. Sherrors told Hixon to "shut the f__ up" and threatened to kill her and everybody she knew.
Sherrors turned back toward Hall and Foth, who were tussling, and started to stab Foth. Foth did not appear to put up a fight but merely said, "Let me die." Sherrors continued to stab Foth for several minutes and then walked back to Hixon with the knife and told her to stab Foth. Hixon initially refused, but stabbed Foth once after Sherrors insisted they were not going to just let her walk away; according to her testimony, Hixon believed that Foth was already dead. Sherrors and Hall stripped Foth and threw his body into the bushes. Hall put Foths clothes into the trunk and Sherrors, Hall and Hixon got into the Audi. Sherrors was wearing a different shirt than he had had on earlier.
With Sherrors at the wheel, the threesome got back onto the freeway and headed southbound. At some point, Sherrors muttered that he had dropped his watch at the scene. They drove for about five or 10 minutes and got off the freeway to stop at an AM-PM convenience store/gas station. Hall purchased some cigarettes at the store and attempted unsuccessfully to use Foths ATM card. (Although Hall had used the correct PIN number for Foths account, the bank had "frozen" the account six days earlier.) Sherrors and Hall dropped Hixon off at a liquor store at University and Euclid Avenues. Sherrors held up a picture of Hixons five-year-old daughter and said, "Shes growing up to be real pretty. I think youd like to keep it that way."
In addition to Hixons testimony, the prosecution introduced evidence of the following:
Sherrors eventually returned to the Wightman Avenue apartment, wearing his sisters "old laundry shirt" inside out and backwards. There were blood marks on the front side of the shirt (as worn normally) and a significant amount of blood on Sherrorss white Fila tennis shoes. Sherrors later left the apartment with a bag and, when asked where he was going, responded, "Dont worry about it." He was wearing gray Nike shoes at the time. Sherrorss sister never saw her shirt again.
Shortly after Sherrors left the apartment, a neighbor called the fire department because her downstairs unit at the same complex was filled with smoke that smelled of burnt plastic. She directed the responding firefighters to the complexs dumpster area, where they found a smoldering pile of debris. The firefighters stomped out the remains of the fire.
Sherrors and Hall kept the car for several days, claiming it belonged to Hixons mother. On October 2, the men saw a newscast regarding the murder that mentioned the car and, early the next morning, the car burned in a fire as it sat in a nearby alley. After the fire was extinguished, police inspected the car, but did not find any of the defendants fingerprints on the car exterior or any detectable bloodstains in the trunk.
On October 14, police searched the Wightman apartment and arrested Sherrors, Hall and Jimmie Washington. They took saliva, blood and other samples from Sherrors, Hall and Jimmie. They found Foths high school class ring in a pair of Halls pants and found Michael Washingtons pager number in Sherrorss pocket. They ultimately re-arrested Hixon, who was charged with Sherrors and Hall for Foths murder.
While Hixon was being held at the Los Colinas Womens Detention Center, she spoke several times to inmate Kathrine Davis about the incident. Hixon told Davis that she had approached Foth to see if he wanted her services as a prostitute and that she, Sherrors and Hall had robbed Foth and killed him. Hixon also told Davis that although she did not initially realize that Foth was in the trunk of the Audi, she found that out as the three were driving north. She indicated to Davis that she stabbed Foth several times and held him down as Sherrors and Hall stabbed him. Hixon said that "her old man" had destroyed the shoes she wore on the night of Foths murder and that her clothes from that night were burned in the car. Hixon was hesitant to testify against Hall, who was an old friend, and she was also concerned about her safety as a result of threats Sherrors had made against her.
In November, Michael Washington stored some items at the house of Mikiisha Perine. Several months later, when Perine was preparing to move, she looked through the items and found a blue purse containing Hixons social security card, Kos Visa and Costco cards, Foths ATM card and three of Foths business cards. Perine called Ko, who alerted the police.
Hixon entered into a plea agreement with prosecutors in which she agreed to plead guilty to conspiracy to sell cocaine and assault with a deadly weapon and to testify truthfully in these criminal proceedings against Sherrors and Hall. In accordance with the agreement, the court sentenced Hixon to 12 years in prison.
Counsel for Sherrors and Hall responded to the prosecutions evidence by attacking Hixons credibility through evidence that she was a prostitute and drug user, had changed her story about the events of the evening in question, had made statements to Kathrine Davis indicating that she had significant involvement in the murder, had lied in saying that she never used Kos cell phone and had not been in the Audi at all after Sherrors and Hall dropped her off. Defense counsel also argued that it was not possible for the events of September 29 to have happened as Hixon testified.
The jury convicted Sherrors and Hall of first degree murder and found true the special circumstance allegation that the murder was committed during a robbery and the allegation that each of them personally used a deadly weapon. The court sentenced each of the defendants herein to state prison for life without the possibility of parole, plus one year. The defendants now appeal.
DISCUSSION
1. Instructional Errors
Generally, the trial court is required to instruct the jury on the general principles of law that are closely and openly connected with the evidence and that are necessary to the jurys understanding of the case. (People v. Barker (2001) 91 Cal.App.4th 1166, 1172.) It also has a duty to refrain from giving incorrect instructions or instructions on principles of law that are irrelevant and that would have the effect of confusing the jury or relieving it from making findings on the relevant issues. (Ibid.; see People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7, 978 P.2d 1171.) The defendants contend that the trial court erred in instructing the jury with modified versions of CALJIC Nos. 2.15 and 8.81.17.
A. CALJIC No. 2.15
The court instructed the jury with a modified version of CALJIC No. 2.15 as follows:
"If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to prove an inference that the defendant is guilty of the crime of murder. Before guilt may be inferred, there must be corroborating evidence tending to prove a defendants guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt.
"As corroboration, you may consider the attributes of possession, time, place and manner; that the defendant had an opportunity to commit the crime charged; the defendants conduct; his false or contradictory statements, if any; and other statements that may have been made with reference to the property."
Hall contends, and Sherrors joins in the contention, that the trial court erred in instructing the jury with the modified instruction, arguing that corroborated evidence that he possessed property recently stolen from Foth supports only an inference that he committed theft, but does not permit an inference that he was guilty of murder.
The California Supreme Courts recent decision in People v. Prieto (2003) 30 Cal.4th 226 (Prieto) holds that CALJIC No. 2.15 is inapplicable to nontheft offenses, including murder. (Prieto, at pp. 248-249, citing People v. Barker, supra, 91 Cal.App.4th at p. 1176.) Although the Attorney General suggests that the analysis of Prieto does not apply in cases "where the murder is directly and casually related to and emanating from the same facts as the theft offense and the only issue is identity," the unequivocal language of Prieto does not support such a conclusion. Further, in light of the jurys special circumstance robbery-murder finding in Prieto, the opinion cannot be read as holding that the fact the murder emanates from the same facts as the theft renders its analysis inapplicable. In accordance with Prieto, we conclude that the court erred in instructing the jury with CALJIC No. 2.15.
The question then becomes whether the error is prejudicial, i.e., whether it is reasonably likely the jury would have reached a different result if the court had not given the instruction. (Prieto, supra, 30 Cal.4th at p. 249.) We answer this question in the negative. CALJIC No. 2.15 specifically instructed the jurors that they could not infer guilt of murder from the defendants possession of recently stolen property absent corroborating evidence of guilt. The inference of guilt addressed in CALJIC No. 2.15 is permissive, not mandatory, and thus the jury was entitled to credit, or reject, the inference based on its evaluation of the evidence. (People v. Anderson (1989) 210 Cal. App. 3d 414, 430, 258 Cal. Rptr. 482.) The court also instructed the jury on the elements of murder, felony murder and the special circumstance of murder during the commission of a robbery, and told the jurors that the prosecution had to prove these elements and the special circumstance beyond a reasonable doubt. Most notably, the jurys special circumstance finding that the defendants committed the murder during the commission of a robbery makes clear that the jury accepted the substance of Hixons testimony regarding the defendants involvement in the incident. Based on the jurys acceptance of Hixons testimony, there is no reasonable likelihood that it would have rendered a verdict more favorable to the defendants had the court omitted this instruction.
B. CALJIC No. 8.81.17
Penal Code section 190.2 imposes a sentence of death or life imprisonment without the possibility of parole where the defendant is found guilty of first degree murder committed while the defendant was engaged in or an accomplice to specified felonies, including robbery. (Id., subd. (a)(17).) This special circumstance is distinguishable from the felony-murder rule in that it requires that the defendant "commit[] the act resulting in death in order to advance an independent felonious purpose" (People v. Bonin (1989) 47 Cal.3d 808, 850, 254 Cal. Rptr. 298, 765 P.2d 460), whereas the felony-murder rule requires only that the killing occur during the commission or attempted commission of the underlying felony (here, robbery). (People v. Bolden (2002) 29 Cal.4th 515, 554; People v. Williams (1994) 30 Cal.App.4th 1758, 1762.)
The special circumstance instruction, CALJIC No. 8.81.17, informs the jury that in order for the special circumstance allegation to be true, the prosecutor must prove: "[1a. The murder was committed while [the] [a] defendant was [engaged in] [or] [was an accomplice] in the [commission] . . . of a [robbery]] . . . [and] [2. The murder was committed in order to carry out or advance the commission of the crime of [robbery] or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the . . . [robbery] was merely incidental to the commission of the murder.]" (Boldface added.)
Here, the special circumstance instruction read to the jury referred in paragraph 1a to "a" defendant and omitted any reference to accomplice liability (as boldfaced above), defects that Hall contends render the modified instruction fatally flawed. He contends that the omission of the reference to accomplice liability, combined with the limitation of the jurys consideration to whether "a" defendant rather than "the" defendant was engaged in robbery, essentially invited the jury to find a special circumstance based on a simple felony-murder finding and that the jury was not required to find that Hall was engaged in or was an accomplice to the robbery.
We need not reach the issue of whether the instruction as given was fatally flawed because in any event Hall cannot demonstrate prejudice from the asserted instructional error since "`the factual question posed by the omitted instruction was necessarily resolved adversely to defendant under other, properly given instructions." (People v. Pulido (1997) 15 Cal.4th 713, 726-727, 936 P.2d 1235.) Here, the court instructed that the use of the word "defendant" in the instructions referred to each defendant unless otherwise specified and that the jury could not find the robbery-murder special-circumstance allegation true unless the particular defendant was engaged in the robbery at the time of the killing. (See CALJIC Nos. 1.11, 8.80.1 (1997 rev.).)
Pursuant to these instructions, the jury was required, as a condition of finding the special circumstance allegation true as to Hall, to find that he was engaged in the robbery at the time Foth was killed, in addition to finding that he was an actual killer, an aider and abettor in the murder who acted with the intent to kill or an aider and abettor and major participant in the robbery who acted with reckless indifference to human life. These instructions thus required the precise findings that Hall contends were omitted as a result of the modification of CALJIC No. 8.81.17 and thus any error in modifying the latter instruction was harmless.
Having found that there was no reversible error here, we nonetheless feel compelled to note that instructional problems similar to those that occurred here happen all too often in criminal cases. We urge counsel and the trial courts to spend a bit more time preparing and reviewing proposed instructions so that any such problems can be identified and remedied before submission to the jury. In light of the public resources involved in trying (and potentially, retrying) defendants in a case such as this, the amount of time that would be required to take preventive steps is de minimis and well justified.
2. Prosecutorial Misconduct
The federal and state standards governing prosecutorial misconduct are well established. A prosecutors actions violate the federal Constitution when they comprise a pattern of conduct "`"`so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" (People v. Samayoa (1997) 15 Cal.4th 795, 841, 938 P.2d 2.) Under California law, conduct by a prosecutor that does not otherwise render a criminal trial fundamentally unfair will nonetheless constitute misconduct if it involves "`"`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" (Ibid.)
A. Presentation of Hixons Testimony
Hall claims that the prosecutor committed misconduct here by using Hixon as a witness in light of the inherently improbable or physically impossible nature of her testimony. Where a conviction is based on the introduction of testimony known by the prosecution to be false, it may constitute a denial of due process of law. (People v. Gordon (1973) 10 Cal.3d 460, 473, 110 Cal. Rptr. 906, 516 P.2d 298.) However, to succeed on a claim that the prosecutor engaged in such misconduct, the defendant must show, by a preponderance of the evidence, that the prosecutor adduced perjured testimony at trial, that the prosecutor knew of the perjurious nature of the testimony and that the testimony may have affected the outcome of the trial. (Ibid.)
Hall has not met this burden here. The prosecution simply presented its evidence and allowed a fully informed jury to evaluate it. Hall has not shown that Hixons testimony was in fact perjured rather than the result of faulty memory or that the prosecutor knew Hixons testimony was false in any particular respect. Allowing Hixon to testify subject to cross-examination and impeachment by available evidence, as was done here, afforded Hall a fair trial and comported with due process. (People v. Riel (2000) 22 Cal.4th 1153, 1181-1182, 998 P.2d 969.)
B. Closing Argument
The defendants also contend that the prosecutor committed misconduct during his closing argument by misstating that Sherrorss DNA was on the watch found at the scene of the murder. In making a closing argument, a prosecutor is given "wide latitude" and may engage in vigorous advocacy so long his or her summation amounts to a fair comment on the evidence, including the inferences that may reasonably be drawn therefrom. (People v. Williams (1997) 16 Cal.4th 153, 221, 940 P.2d 710; People v. Hill (1998) 17 Cal.4th 800, 819, 952 P.2d 673.) In reviewing a challenge to the propriety of the prosecutors comments to the jury, the paramount question is whether there is a reasonable likelihood that the jury construed or applied the challenged comments in an objectionable fashion. (People v. Morales (2001) 25 Cal.4th 34, 44.)
At trial, prosecution witness Brian Burritt testified that he tested three small areas of the watch, two of which appeared from a visual inspection to have blood (but only one of which tested positive for the presence of blood), and determined that Sherrors, Hall and Hixon could be excluded, but that Foth could not be excluded, as the source of the DNA found in those areas. Burritt also testified, however, that the area on the back of the watch face showed a trace result consistent with Sherrorss DNA and that the result could indicate Sherrors was a secondary source of that DNA, although it was "extremely weak" and he was "not comfortable" relying on it as a basis for determining whether Sherrors was such a secondary source.
In his closing argument, the prosecutor did not argue that Burritts testimony established Sherrorss ownership of the watch, but instead cited to the testimony of Sherrorss sister for that purpose. Sherrorss counsel responded by arguing that the DNA testing would have resulted in a mixture of DNA if the watch was Sherrorss and that thus the DNA testing conclusively established that the watch had belonged to Foth, not to Sherrors. In rebuttal, the prosecutor addressed the defense argument by summarizing the witness testimony that the watch belonged to Sherrors and did not belong to Foth and citing Burritts uncontradicted testimony that the DNA evidence was inconclusive on whether Foth was the "habitual wearer" of the watch.
In the portion of argument that the defendants now challenge, the prosecutor also referred to Burritts testimony about the trace DNA on the back of the watch, arguing that the trace DNA came from a source other than Foth. After the trial court overruled a defense objection, the prosecutor argued that the trace DNA was consistent with Sherrorss DNA, that Sherrors was the source of the trace DNA and that the reason Sherrorss DNA was on the watch was because it was his watch.
The prosecutors argument regarding the state of the DNA evidence from the watch was, in large part, a fair summation of Burritts trial testimony. Burritt testified that the trace result was an allele that was consistent with Sherrorss DNA and could indicate that Sherrors was a secondary source of the DNA from the back of the watch face, although it was too weak to permit him to give a conclusive opinion on the subject. Sherrors now argues that the trace result was not sufficient to implicate him as a source of the DNA "as a matter of science" based on other aspects of the DNA testing results. However, this argument appears to be contradicted by Burritts testimony that the result could indicate that Sherrors was a secondary source; further, Sherrors does not cite to any expert testimony in the record to support his assertion. In light of Burritts testimony, the prosecutor was entitled to argue that the DNA on the watch was Sherrorss.
Further, even if we assume that Burritts testimony was too equivocal to support the prosecutors argument, we would nonetheless conclude that there was no prosecutorial misconduct. The prosecutors brief rebuttal argument regarding the trace DNA evidence was not an egregious misstatement of the evidence and it did not constitute a pattern of misbehavior. (See People v. Frye (1998) 18 Cal.4th 894, 979, 959 P.2d 183 [a single instance of error during closing argument generally will not establish a pattern of egregious behavior sufficient to constitute misconduct].) In addition, in light of Sherrorss counsels arguments that the DNA evidence conclusively excluded Sherrors as a source of the DNA and that the prosecutions characterization of Burritts testimony was "totally and completely disingenuous and intellectually dishonest," it is not reasonably likely that the jury was confused or misled by the prosecutors characterization of the trace DNA evidence. The prosecutors argument does not establish a basis for reversal of the judgment.
3. Incomplete Special Verdict Form
Hall contends that the felony murder special circumstance verdict form was defective because it only required the jury to make a finding that he committed Foths murder during the commission of a robbery, but omitted the requisite finding that he committed the murder to advance the commission of the robbery or to facilitate escape therefrom or avoid detection. Hall argues that this error was prejudicial because when taken in conjunction with the prosecutors closing argument, the verdict form would convince the jury that there was no distinction between first degree felony murder and the felony-murder special circumstance.
In light of the fact that the special verdict form was incomplete rather than an inaccurate statement of the law, it is not clear whether Hall properly preserved this issue for appellate review as he did not raise any objection to the special verdict form in the proceedings below. However, even if we reach the merits of Halls argument, we nonetheless reject his contention that the incompleteness of the special verdict form constitutes reversible error.
In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to and governing the case. (People v. Roberge (2003) 29 Cal.4th 979, 988.) In accordance with this principle, it certainly is preferable that the elements of a special circumstance allegation be completely stated in the special verdict submitted to the jury, although there is a split of authority on whether the omission of an enhancement element from the verdict form is error. (Compare People v. Chevalier (1997) 60 Cal.App.4th 507, 513-516; People v. Garcia (1992) 3 Cal.App.4th 582, 586.)
Even if we assume, however, that it was error for the court to give the jury a correct but incomplete special verdict form, any such error was harmless. (See People v. Wims, supra, 10 Cal.4th at p. 314 [generally, a judgment may be overturned for an instructional error relating to special sentencing allegations only if it is reasonably probable the defendant would have received a more favorable result in the absence of the error]; compare People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326 [failure to instruct on an element of a non-strike sentence enhancement provision that increases the penalty for the underlying crime "beyond the `prescribed statutory maximum" is reversible unless harmless beyond a reasonable doubt].)
Hall admits the court properly instructed the jury that the special circumstance allegation required a finding that he committed the murder to advance the commission of the robbery. He nonetheless argues that the improper special verdict form — when coupled with the prosecutors passing comment that although the special circumstance allegation required a finding that the murder was committed during the robbery, "its the same elements basically" as those required for felony murder — rises to the level of prejudicial error. However, in light of the propriety of the courts instruction regarding the omitted element and its general admonition that the jury must follow the instructions rather than counsels arguments regarding the applicable law, we conclude it is not reasonably likely that the jury was misled by the incomplete special verdict form.
4. Sufficiency of the Evidence
Sherrors challenges the sufficiency of the evidence to support his conviction, arguing that Hixons testimony describing the series of events has to be disregarded because (1) it was physically impossible for the events to have occurred as she indicated and (2) as a prostitute and drug user, and based on her repeated lies prior to and at trial and her statements to Katherine Davis implicating herself more substantially, she was inherently unreliable as a witness. Hall joins in this contention.
In addressing this argument, we note that our role in reviewing the sufficiency of the evidence to support a criminal conviction is limited. (People v. Ochoa ( 1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.) Although we must ensure that the evidence adduced at trial in support of the verdict is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trier of fact to determine the credibility of the witnesses and the truth or falsity of the facts on which that determination depends. (People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal. Rptr. 611, 792 P.2d 643.) Thus, if the verdict is supported by substantial evidence, we must defer to the findings of the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. (Ibid.)
A reviewing court may reject statements of a witness who was believed by the trier of fact only if it is physically impossible that the statements are true or if the falsity of the statements is apparent without resorting to inferences or deductions. (Id . at p. 1259; see People v. Cudjo (1993) 6 Cal.4th 585, 608, 863 P.2d 635.) The trier of facts reliance on testimony revealing unusual circumstances and even testimony that is subject to justifiable suspicion will not support a reversal of the judgment on appeal. (People v. Franz (2001) 88 Cal.App.4th 1426, 1447; People v. Meals (1975) 48 Cal. App. 3d 215, 221-222, 121 Cal. Rptr. 742.)
With these principles in mind, we conclude that there is sufficient evidence to support the defendants convictions. Sherrorss counsel argued at length about Hixons credibility and, in particular, that the events of the evening in question could not have happened as Hixon said. However, the jury was not required to accept or reject Hixons testimony in its entirety, but was instead entitled to credit some portions and reject other portions of that testimony. (People v. Flores (1968) 267 Cal. App. 2d 452, 457, 73 Cal. Rptr. 118.) In so doing, the jury could have concluded that Hixon had a reason to lie in stating that Foth was in the trunk of the car during the drive north and thus rejected that testimony, concluding instead that Foth rode inside the car with Sherrors, Hall and Hixon. If Horne made the 6:50 p.m. phone call during that drive, it would not have been physically impossible for Sherrors and Hall to commit the murder and drive back to the AM-PM, as Hixon testified, by 7:36 p.m. when the first attempt to withdraw money from Foths bank account occurred. Alternatively, the jury may have accepted the prosecutors argument that Hixon was mistaken that the stop at the AM-PM was made on the return trip, but was in fact made on the way up to Highland Valley Road. Again, doing so would avoid the physical impossibility on which the defendants base their sufficiency argument.
Under the circumstances, the defendants have not shown that there was insufficient evidence to support their convictions.
DISPOSITION
The judgments of conviction are affirmed.
WE CONCUR: BENKE, Acting P. J., and OROURKE, J.