Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF101934. J. Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Following a jury trial, defendant Janett Guadalupe Hernandez was convicted of first degree murder (Pen. Code, § 187, subd. (a)), and the jury found defendant personally used a firearm (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)). The jury also found that the murder was committed during kidnapping and rape. (§ 190.2, subds. (a)(17)(B) & (C).) On November 19, 2007, defendant was sentenced to state prison for life without the possibility of parole, plus 10 years. Defendant appeals, contending the trial court erred (1) in instructing the jury on the defense of duress, (2) in allowing a witness, Jessica, to testify that defendant was “untrustworthy,” and (3) in failing to instruct the jury on flight. Defendant further challenges the instructions on felony-murder special circumstances.
All further statutory references are to the Penal Code unless otherwise specified.
I. PROCEDURAL BACKGROUND AND FACTS
A. The Events.
On February 11, 2002, at approximately 1:45 a.m., Jacqueline Mendoza’s (victim) body was found lying in the street in Moreno Valley with a gunshot wound to her head. Victim had been friends with defendant since high school. Defendant moved away, began a relationship with Miguel Cerda (Cerda), and had a son with him. At the time of victim’s murder, Cerda, defendant and their son were living with Cerda’s family (Cerda house) in Moreno Valley.
On February 10, 2002, victim spent the day with defendant, Cerda, and defendant’s father and younger siblings, shopping at the Ontario Mills mall. After shopping, defendant’s father and the younger siblings went to a relative’s home, while Cerda, victim, defendant, and defendant’s sister went to the Cerda house. They watched television and drank beer. Victim borrowed a tampon and changed from a skirt into a pair of men’s sweatpants. Cerda left to pick up defendant’s father and returned to get defendant, victim, and defendant’s sister to go to defendant’s home.
Cerda, defendant, victim, and defendant’s sister and father sat at the kitchen table drinking. At some point, defendant’s sister came out of her bedroom into the living room and saw Cerda rubbing his foot against victim’s foot. Cerda turned around and saw defendant’s sister looking at him, and he stopped. Defendant’s sister went back to her room and fell asleep again. The second time defendant’s sister awoke to Cerda’s yelling, “Let’s get the fuck out of here right now.” Defendant and victim were in the bathroom. Defendant’s sister heard Cerda push defendant, then victim, into the wall in the hallway. She saw them leave in the white Ford truck. The truck had a rear seat with an adjacent passenger door which could only be opened if the front passenger door were opened first.
Later that night, after 10:00 p.m., Cerda’s brother, Tony, saw defendant enter the house, rummage through a kitchen drawer where the knives were kept, and then go into the bedroom she shared with Cerda. Tony had previously seen guns Cerda kept inside a sock in his dresser drawer in his bedroom. Defendant came out of the bedroom carrying something under her arm. Tony said it looked like the black sock where Cerda kept the gun. Defendant seemed “focused,” and was moving quickly. She left the house without closing the front door and got into the passenger side of the white truck. Tony’s friend, Jessica, testified that Tony told her he saw defendant take the gun out of the bedroom. He asked defendant, “What do you want that for?” and defendant told Tony to “shut up,” and then she left.
Tony told Jessica that Cerda and defendant came home early the next morning while it was still dark. Both were dirty, had mud on them, and were acting “scared.” They showered together, then went to bed. They woke Tony up and asked him to follow them to defendant’s father’s house so they could return his truck. On the way, police stopped both vehicles and detained Cerda, defendant, and Tony.
B. Defendant’s Statements to the Police.
After being detained, defendant and Cerda were interviewed separately. Defendant gave conflicting versions of her involvement in the murder. On February 11, 2002, defendant told police that Cerda, victim, and defendant’s father had been drinking. Defendant went to sleep in her sister’s room and later woke up to find Cerda and victim kissing. Defendant said victim apologized and asked to be taken home. Cerda and defendant dropped victim off at Cardenas on Ironwood and then returned home. Defendant showered and went to sleep. When she woke up, Cerda was next to her, “breathing hard.” The next morning Cerda would not talk to defendant and told her that nothing was wrong. Defendant said, “And then Erica called me and she told me... [t]hat [victim] was dead.” Defendant also told police that Cerda kept a gun in the house in his dresser drawer.
Erica is a mutual friend of defendant and victim.
After detectives told defendant that Cerda was talking about the shooting, defendant changed her story. Detectives told defendant that Cerda claimed the gun belonged to victim, and that when they were arguing, he shot her. Defendant then told detectives that when they were driving victim home, Cerda and victim started arguing. Cerda told victim to get out of the vehicle, and victim called him a “fucking faggot.” Cerda got out of the vehicle and slapped victim, who responded, “You fucking faggot you ain’t gonna do shit to me.” Cerda got the gun to scare victim, and it went off and shot her. Defendant tried to talk to Cerda after the shooting, but he would not talk. She said Cerda dropped her off at home without saying anything, then left. Cerda returned home later that night.
Defendant told the detectives she did not know how Cerda ended up with victim’s gun, and she did not know whether the shooting was intentional or an accident. Defendant never got out of the vehicle to check on victim after the shooting because she was frightened. After detectives pressed her, defendant added that she tried to get out of the truck after they drove away, but Cerda told her, “Don’t even try it.” Defendant denied knowing what happened to victim’s purse. Defendant told the detectives that after she returned home, she took a shower. Then when Cerda returned, he told her, “Let’s go to sleep. I don’t want to listen to it and I don’t want to hear nothing.” When detectives asked about the gun, defendant told them that Cerda said, “It’s gone.” Defendant then said that Cerda told her, “I wasn’t gonna do it, it was an accident.”
After the detectives asked defendant whether anything else had occurred that she had not yet told them, defendant said she thought victim and Cerda “had sex” the night of the shooting. She stated the three of them had stopped near the Nason off-ramp on the 60 freeway. Cerda took victim out of the truck and made her take off the pants she was wearing. Defendant said she heard victim saying, “I can’t, I can’t, I can’t.” Cerda told victim to shut up. Defendant did not get out of the truck, but she could hear what they were saying. Defendant thought that Cerda had sex with victim but was not sure whether victim consented. Afterwards, victim called Cerda a “fucking asshole” and asked him how he could do that. Cerda again told victim to shut up. Defendant told victim, “Jackie, this is not the person you want to fuck with.” Defendant said that she told victim she was sorry, and victim responded, “It’s okay, it’s not your fault, it’s my fault.” After they left, victim began crying.
Defendant said that while they were stopped near Nason on the freeway, the gun was lying on the backseat. After they stopped near Graham, defendant told victim to run, but victim stayed near the truck, and Cerda slapped her. Then victim began walking away, and Cerda reached behind and grabbed the gun. After returning home, defendant was afraid that Cerda would shoot her too. She said nothing to Cerda about the shooting and offered to have sex with him. They had sex and then Cerda fell asleep.
Detectives confronted defendant with Cerda’s statement that defendant was the actual shooter, not Cerda. Defendant denied it and continued to insist that Cerda shot victim.
During a second interview on February 13, 2002, defendant said that Cerda shot victim. She told detectives that on the day of the shooting, victim went with her and Cerda to Ontario Mills and then to the Cerda house in Moreno Valley. Later, they went to defendant’s father’s house. Cerda and victim went to buy beer. After they came back, defendant went to her sister’s room and fell asleep. When defendant woke up and went into the kitchen, Cerda was kissing victim. Defendant did not say anything to them. Defendant put her arms around Cerda’s neck, and he told her to go back to sleep. Defendant went back to the bedroom, but she heard Cerda and victim arguing. Victim came into the bedroom and told defendant that she wanted to go home. Cerda told defendant to tell victim to take off the clothes she had borrowed. Defendant gave victim a pair of her sister’s pants. When victim was changing in the restroom, Cerda came in and told her to leave. He grabbed her and pushed her into the wall. The three of them left the house in the white truck, with Cerda driving, defendant in the passenger seat, and victim in the rear seat.
After a short drive, Cerda stopped the truck, opened the door, and made victim get out. He told her to take off her pants. Cerda hit her and she fell backwards into the bushes. Cerda tried to forcibly take off the pants while victim was on the ground. Victim asked him to let her up. She stood and took off the pants. Cerda told victim to walk home, but she got back into the truck.
Cerda drove to his parents’ home and told defendant to go inside and get his gun. Victim did not say anything. Defendant retrieved the gun from the dresser drawer and brought it in the black sock to Cerda, along with victim’s jacket and shoes. Defendant opened the passenger door and handed the gun to Cerda, who laid it on the seat. Cerda told defendant, “You’re gonna do it.” Cerda drove to the 60 freeway and parked the truck on the side of the freeway. Cerda made victim get out and take off her pants. The gun was still inside the truck with defendant. Cerda slapped victim and took her to the back of the truck, opened the tailgate, and raped her in the bed of the truck. Defendant could see them and heard victim crying. Cerda then took victim to some nearby bushes. Defendant saw victim lying on her back with Cerda on top of her. Victim was saying, “I can’t. I can’t.” Victim told Cerda, “I can’t do it,” and Cerda told her to “shut up.” Cerda and victim got back into the truck. Defendant said that Cerda told victim: “I won’t force you to make money for me, but as long as you keep me happy I’ll give [you] what you want....” Cerda got off the freeway and again pulled over and raped victim. After they returned to the car, Cerda sat victim in the front seat, between him and defendant. Cerda told victim, who was still crying and upset, to look at him. He told her to call her mother and tell her that she was going to be late. Victim was too nervous to dial her cell phone, so defendant dialed it for her; however, the call did not go through. Cerda got back on the freeway, driving toward Moreno Valley. Cerda told victim that if she said anything to anyone, his cousins would know; that they knew where she lived and would do something to her. Cerda told victim she had “fucked with the wrong person.”
They stopped again and victim got in the backseat. Cerda asked defendant, “Should I trust her?” Defendant told him “yes.” Cerda told defendant, “if not, it’s gonna be your life.” Cerda asked defendant again if he should trust victim, and defendant said she did not know. Cerda told defendant, “I’m gonna smoke this bitch.” Cerda then told victim, “And I want you at my house at 2 o’clock or you’ll be hearing from me.” Cerda stopped the car near Graham and told victim to get out. Victim asked Cerda, “Why you doing this to me?” Cerda came around the truck and pulled victim out, ripping her shirt. Cerda said something to defendant about having raped victim. Cerda slapped victim and told her, “[Y]ou’d better not say nothing bitch and I won’t say noth[ing].”
Defendant gave victim her jacket and shoes, then told her to run. Victim began walking away. Cerda got back in the truck and again asked defendant if he should trust victim. Defendant said, “I don’t know.” Cerda drove the truck up onto the sidewalk next to victim. He told victim to come to the driver’s window, and he said, “You’d better not say nothing and I want you at my house at 2 or you’ll be hearing from me.” Then defendant heard the gunshot. She said the gun had been lying on the seat between them.
Defendant said she and Cerda then drove off. At defendant’s father’s house, Cerda checked to see if victim’s blood was on the side of the truck. He hid the gun inside a spa in the backyard. They then left the truck at defendant’s father’s house, taking her father’s Bronco. They drove past the scene of the shooting and saw victim’s body lying in the roadway. When they got home, Cerda took off his clothes and shoes and told defendant to wash them. He told Tony that if the police came, Tony should say that Cerda and defendant got home at 9:00 p.m. and “never went out.” Cerda removed defendant’s money and new underwear from victim’s purse and told defendant to put them in a drawer. Cerda burned victim’s purse and skirt in the backyard. Defendant told Tony that Cerda had killed victim. Tony told defendant to stick to her story.
The next morning, defendant and Cerda showered and had sex. Cerda told defendant that he had not wanted to shoot victim; he just wanted to scare her. They went back to defendant’s father’s house. Defendant got the gun and put it in a garbage bag with other items she emptied from the refrigerator. Then she put the bag in the neighbor’s trash can.
When defendant was asked what parts of the story she was leaving out, defendant said that when Cerda was arguing with victim outside the truck, he told defendant to give him the gun, and she did. Defendant said that when victim was seated in the front seat, defendant had placed the gun, along with victim’s jacket and shoes, on the floor next to her. Defendant said that she knew Cerda was going to shoot victim when he asked her for the gun. After Cerda shot victim, he laid the gun on the seat and defendant took it and put it underneath her leg.
Upon further questioning, defendant again changed her story. This time she admitted she had pointed the gun at victim while she was still in the car. Defendant said she was trying to scare victim, so she pointed the gun at her and told her to run. After victim got out of the truck, defendant gave the gun to Cerda, and Cerda shot victim. Defendant added that she had pointed the gun at victim for two to three minutes. She called victim a “fucking bitch” and told her to run. She then admitted that she pulled the trigger once while she had it pointed towards victim’s chest. The gun did not go off. Cerda became angry, came around, pulled victim out of the truck, and hit her. Cerda asked defendant if he should trust victim, and defendant said that she did not know. Cerda “pushed” victim with the truck and called her back to the window. Cerda told defendant to give him the gun. Defendant did so, and Cerda shot victim.
Defendant agreed that Cerda wanted her to kill victim and that defendant would have done so if the gun had worked. Defendant said she told Cerda “‘that um, when we left I think he ranned her over.’” Defendant showed the detectives the location off the side of the 60 freeway where the first rape occurred.
C. The Defense.
Defendant did not testify. Instead, the defense argued that defendant was acting under duress, relying on defendant’s statements to the detectives that Cerda had hit her in the past and that she was afraid of him. The defense also pointed to the testimonies of prosecution witnesses that Cerda was known to have a temper and to keep weapons, and that he engaged in previous acts of domestic violence involving defendant and other family members.
II. JURY INSTRUCTION ON DURESS
Defendant was prosecuted as an aider and abettor. The People argued that defendant was guilty of first degree murder under either a deliberate and premeditated murder or felony murder-theory. The trial court granted defendant’s request that the jury be instructed on the defense of duress. On appeal, defendant contends the duress instruction was erroneous and misleading. According to defendant, the court instructed that the defense of duress did not apply to murder, when in fact, it is a defense to felony murder. She further complains the court failed to “make clear that the defense of duress applied to the felony-murder special circumstances.” In sum, defendant argues that “[t]hese errors affected the key determinations to be made by the jury in this case and thus violated [her] Fourteenth Amendment right to a fair trial.”
A. Duress as a Defense.
Although “duress is not a defense to any form of murder” (People v. Anderson (2002) 28 Cal.4th 767, 780), it “can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.]” (Id. at p. 784.) “[T]he defense of duress is available only to those ‘who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’” (People v. Perez (1973) 9 Cal.3d 651, 657.) Accordingly, the defense of duress requires evidence that the defendant participated in the crimes as a result of a present and active threat of imminent danger. (People v. Petznick (2003) 114 Cal.App.4th 663, 676-677.) In Petznick, the court held that the evidence did not support an instruction on duress when there was no direct evidence of duress. The court noted that despite evidence indicating defendant’s general reluctance to participate, “[t]here was no gun to his head,” and the suggestion that his participation had been coerced by an imminent threat to his life was “pure speculation.” (Id. at pp. 677-678.) Thus, when acting out of duress, the defendant does not have the time to form criminal intent because of the immediacy of the threatened harm. (People v. Heath (1989) 207 Cal.App.3d 892, 901.)
B. Jury Instructions.
Defendant requested that Judicial Council of California Criminal Jury Instructions, CALCRIM No. 3402 (Duress or Threats) be given. Thus, the court instructed the jury as follows: “The defendant is not guilty of the special circumstance crimes or allegations of personal use of a firearm if she acted under duress. The defendant acted under duress if, because of threat or menace, she believed that her life would be in immediate danger if she refused a demand or request to commit the crime. The demand or request may have been express or implied. [¶] The defendant’s belief that her life was in immediate danger must have been reasonable. When deciding whether the defendant’s belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed. [¶] A threat of future harm is not sufficient, the danger to life must have been immediate. [¶] The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty of the special circumstance crimes or allegation of personal use of a firearm. [¶] This defense does not apply to the crime of murder.”
When reading this instruction, the trial court added, “I want to emphasize that. The defense—there are some special allegations that the homicide was committed in a particular way. The defense of duress can be considered and if appropriate applied to that area. It cannot be applied to the actual killing itself.”
On appeal, defendant argues that the instruction and the trial court’s comments were “misleading at best.” She contends that “it is highly unlikely a reasonable juror would have understood that duress was a defense to felony murder and the felony-murder special circumstances.” According to defendant, “jurors were not legal scholars who would have been able to figure out that duress was a defense both to felony murder and the felony-murder special circumstances if [defendant] acted under duress in aiding and abetting the predicate felonies of rape and kidnapping. CALCRIM No. 3402 told the jury point blank, ‘The defense does not apply to the crime of murder.’” We disagree.
To begin with, we note that while defendant requested CALCRIM No. 3402, we note she failed to request a clarifying or amplifying instruction that the defense of duress would apply to the underlying felony. The People argue defendant waived any challenge to CALCRIM No. 3402 by not requesting clarification or amplification. Generally, “[i]f defendant believed the instructions were incomplete or needed elaboration, it was [her] obligation to request additional or clarifying instructions. [Citation.] [Her] failure to do so waives the claim in this court. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 514; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1189.)
Notwithstanding the above, defendant argues the trial court was responsible for the instructional error because “it was required to instruct on duress not only because [defendant] requested such an instruction, but because the court had a sua sponte duty to instruct on duress.” Thus, she claims that she can raise the objection at any time. (People v. Wickersham (1982) 32 Cal.3d 307, 324-326, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200, 201.) We will address the instruction challenge on the merits, since there is no forfeiture when substantial or constitutional rights of a defendant are asserted. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140; § 1259; People v. Smith (1992) 9 Cal.App.4th 196, 207.) Here, defendant complains that the trial court committed constitutional due process error by failing to instruct the jury to consider the defense of duress regarding the charges of felony murder and the felony-murder special circumstances.
Turning to the record before this court, we note that CALCRIM No. 3402, as given, correctly informed the jury that duress was a defense to felony murder and the felony-murder special circumstances. Specifically, the instruction stated: “The defendant is not guilty of the special circumstance crimes or allegations of personal use of a firearm if she acted under duress.” While defendant complains about the language, she fails to state how the language could have been changed to clarify the instruction’s alleged misleading nature.
Moreover, during closing argument, defense counsel argued: “There’s this instruction about duress. And it goes really to the special circumstance. And duress is where you feel like you’re under threat for your own life, and it’s something to read and to consider. I think the stronger thing for [defendant], and really where the focus should be, is that her intent? Is it [defendant’s] intent that... Cerda rape [victim]? Yes or no. Is it [defendant’s] intent that... Cerda kidnap and drive all over the place with [victim] as he’s raping her and beating her up and strangling her? Is that her intent? Is that what she wants to be going down? If the answer in your analysis is yes, she’s guilty. If the answer to that analysis is no, then she’s not guilty of special circumstances of rape and kidnap.” The prosecutor responded: “Duress is... a potential defense. However, you will see it doesn’t even work in this case.... [¶] What duress—a legitimate duress is negate [sic] certain crimes, certain elements within a crime such as rape, kidnap and the use of a gun.” The prosecutor later added: “Did [defendant] aid and abet the felonies which are the kidnapping and the rape? [Defense counsel] argued to you briefly that she did not aid and abet. She has the gun. She has the door that opens up and allows the passenger to get out, and at times that the victim is in the front seat [defendant’s] sitting on the outside armed with the gun. She’s aiding and abetting all along. And she’s actually guilty of the kidnapping, because she is—she is one of the perpetrators with that.” Given the argument of counsel, coupled with CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice—Felony Murder), we conclude the jury was properly instructed on duress regarding the charges of felony murder and the felony-murder special circumstances.
Even if we were to assume that the trial court erred in failing to adequately “apprise the jury to consider the defense of duress regarding the charges of felony murder and the felony-murder special circumstances,” we find the error to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Given the instructions in the instant case and the evidence presented, no rational jury could have found that defendant acted under duress. There simply was no direct evidence of duress. While the evidence may have indicated defendant’s general reluctance to participate, at no point did Cerda put the gun to defendant’s head and threaten her life if she failed to help him. Instead, there were several opportunities for defendant to use the gun against Cerda to stop the kidnapping, rape, and subsequent murder of victim.
Defendant cites to her police interviews and claims they are “replete with statements by her that on the night of the homicide, she feared Cerda would perpetrate violence on her and shoot her if she did not comply with his demands.” “[S]he retrieved Cerda’s gun out of the... residence because she feared what would happen to her if she refused, because Cerda was really violent.” After Cerda shot victim, defendant “put the gun under her leg, so he would not shoot her....” She later “suggested they have sex because she thought Cerda was going to shoot her.” Defendant further notes there was evidence of Cerda’s temper, prior behavior and violence. She claims her personal situation made her more likely to be “susceptible to dominance and control by Cerda.” Specifically, she notes that she was only 17 and he was 22 when they met; he was larger than she was; she had a one-year-old child; she was living in Cerda’s family’s home; her father was a drinker; she had no mother in her home; and she thought she was pregnant at the time of victim’s murder. Although this evidence indicates defendant was in fear of Cerda, defendant does not cite any evidence that Cerda actually threatened her, much less threatened her with imminent death.
Because there was overwhelming evidence supporting a finding that defendant was not acting under duress, we conclude that, even if a clarifying instruction was required, the absence of such an instruction was harmless beyond a reasonable doubt. For the same reasons, we reject defendant’s claim of ineffective assistance of counsel.
III. JESSICA’S TESTIMONY
Defendant challenges the admission of Jessica’s testimony that defendant was untrustworthy. Defendant contends the testimony was inadmissible because (1) it was irrelevant, (2) it was inadmissible character evidence bearing on her honesty and credibility, and (3) it should have been excluded under Evidence Code section 352.
A. Jessica’s Testimony.
Jessica, Tony’s friend and a prosecution witness, testified that she and defendant had been really good friends in high school but they had had a “falling out.” Jessica described a time in 2000 or 2001, after the falling out with defendant, when she (Jessica) had intervened between Cerda and defendant at a party. Cerda yelled at defendant, dragged her to his truck, and pushed her up against it. Defendant was yelling or screaming and physically hitting Cerda, telling him to “fucking leave her alone.” After Jessica intervened, Cerda let defendant stay at the party. Despite the falling out with defendant, Jessica denied that she had any motive to lie about defendant. She even felt a need to intervene on defendant’s behalf at the party. Although Jessica was no longer friends with defendant, she was very close to Tony. On redirect, defense counsel objected to the prosecution’s inquiry as to why there had been a falling out between Jessica and defendant. There was a sidebar discussion, in which the prosecutor responded that it could be relevant to bias. The trial court agreed to allow the prosecutor to ask Jessica if the falling out caused her to no longer trust defendant. The prosecutor then asked Jessica whether her falling out with defendant caused Jessica to no longer trust defendant. Jessica replied, “Yes.”
B. Analysis.
Assuming, without deciding, that the trial court erred in overruling defendant’s objection, we find such error to be harmless. Errors in the admission of evidence are reviewed under the miscarriage of justice standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836, i.e., that the error is reversible only if it is reasonably probable that an outcome more favorable to the defendant would have resulted in the absence of the error. (People v. Carrillo (2004) 119 Cal.App.4th 94, 103, citing People v. Cooper (1991) 53 Cal.3d 771, 836.)
Here, Jessica had already testified that she and defendant were no longer friends and that Jessica had been angry with defendant. Given such testimony, it stands to reason that Jessica would consider defendant to be untrustworthy. Thus, we see little damage to defendant’s credibility. Although defendant did not testify, her interviews with the detectives were admitted into evidence. Looking at those interviews, we note that defendant offered many versions of what happened to victim. At one point, when one of the detectives said, “So you know what bothers me about all this, okay?” Defendant replied, “I wasn’t honest.” Even defendant’s own counsel acknowledged that defendant’s credibility was suspect: “[Defendant] tells one story after another. She, literally, from the moment she is confronted by [her friend], to the moment that she is being interviewed by the detectives, and reinterviewed by the detectives and ad nauseum, she tells stories. She tells lies. She does not tell the truth 100 percent.” Given the direct evidence (via interviews) of defendant’s flawed credibility, coupled with defense counsel’s acknowledgment of it, we find no reasonable probability that the outcome would have been more favorable to defendant absent the error in admitting Jessica’s testimony that defendant was untrustworthy.
IV. FAILURE TO INSTRUCT WITH CALCRIM NO. 372
Defendant contends the trial court erred by failing to give CALCRIM No. 372 (Defendant’s Flight). The parties did not request, and the trial court did not give, the flight instruction which would have stated: “If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself.” (CALCRIM No. 372.) The People concede that “the trial court should have instructed the jury with CALCRIM No. 372 because the prosecution relied, albeit minimally, on [defendant’s] flight after the crime, as well as her actions to hide or destroy evidence of her involvement in the shooting to show consciousness of guilt.” “Even if error occurred, because the evidence of [defendant’s] guilt rested primarily on [witness testimony] and [defendant’s own statements]... about [her] participation in the crime, not on [her] flight from the scene, we hold that the error was harmless. [Citation.]” (People v. Carrillo (2008) 163 Cal.App.4th 1028, 1039.)
V. JURY INSTRUCTION ON FELONY-MURDER SPECIAL CIRCUMSTANCES
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice—Felony Murder). Specifically, she complains that the instruction was flawed because certain portions of the instruction referred to her participation in “the crime” rather than instructing the jury that it must find that, as an aider and abettor, defendant either intended to kill or acted with reckless indifference to human life and as a major participant in the rape and kidnapping. Thus, defendant argues that “[n]othing told the jury that to return the felony-murder special circumstances, the reckless indifference/major participant requirements must be met with regard to the predicate felonies.”
Like CALCRIM No. 3402, defendant requested CALCRIM No. 703 without any clarification or amplification. Thus, the People argue that defendant has either invited error by requesting the instruction, or forfeited any argument by failing to assert it at the trial level. As we recognized above, a defendant’s failure to request additional or clarifying instructions waives the claim on appeal. (People v. Dennis, supra, 17 Cal.4th at p. 514; see also People v. Rodrigues, supra, 8 Cal.4th at p. 1189.) Nonetheless, given defendant’s claim that her constitutional right to due process was violated, we will address the instruction challenge on the merits. (People v. Van Winkle, supra, 75 Cal.App.4th at pp. 139-140; § 1259; People v. Smith, supra, 9 Cal.App.4th at p. 207.)
A. Standard of Review.
We apply a de novo standard of review in assessing whether an instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “‘“In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]”’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112; accord, People v. Clair (1992) 2 Cal.4th 629, 663.)
B. CALCRIM No. 703.
CALCRIM No. 703 provides: “If you decide that the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances that the killing was committed while the defendant was engaged in, or was an accomplice in, the commission of kidnapping or rape, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life.
“In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill, or the People must prove all of the following:
“1. The defendant was a major participant in the crime; AND
“2. When the defendant participated in the crime, she acted with reckless indifference to human life.
“A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.
“The People do not have to prove that the actual killer acted with intent to kill or with reckless indifference to human life in order for the special circumstances that the killing was committed while the defendant was engaged in, or was an accomplice in, the commission of kidnapping or rape to be true.
“If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find these special circumstances true, you must find either that the defendant acted with intent to kill or you must find that the defendant acted with reckless indifference to human life and was a major participant in the crime.
“If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that she acted with either the intent to kill or with reckless indifference to human life and was a major participant in the crime for the special circumstances that the killing was committed while the defendant was engaged in, or was an accomplice in, the commission of the kidnapping or rape to be true. If the People have not met this burden, you must find these special circumstances have not been proved true.”
C. Analysis.
According to defendant, the above language fails to “state that the reckless indifference/major participant requirements apply to the rape and kidnapping.” She argues that “[t]he jury would not have realized that ‘the crime’ referred to throughout the instruction was not murder, but rape and kidnapping. The use of the singular ‘crime’ suggested the crime was the murder and contributed to the misleading nature of the instruction.” Defendant contends that “[i]f the court had at least used the plural ‘crimes,’ the jury might have understood that the crimes were the rape and kidnapping.”
In response, the People argue that defendant has focused only on those sentences that refer to her participation in the crime, while ignoring the fact that the phrase “major participant in the crime” clearly refers to her participation in the rape and kidnapping. We agree with the People. The entire phrase is “a major participant in the crime for the special circumstances that the killing was committed while the defendant was engaged in....” The instruction continues with “or was an accomplice in, the commission of the kidnapping or rape to be true.” Contrary to defendant’s claim, we conclude the instruction properly informed the jury that in order to find the special circumstance allegations to be true, it must find that defendant either intended to kill, or was a major participant who acted with reckless indifference to human life in the rape and kidnapping.
In her reply brief, defendant notes that CALCRIM No. 703 was revised in April 2008 to provide: “The defendant’s participation in the crime began before or during the killing.” She argues this change “makes it clear that the crime is distinct from and not the killing and avoids the misleading nature of the instruction given in [her] case.” Regardless of the change, we conclude that the language “crime for the special circumstances that the killing was committed” sufficiently apprised the jury that the instruction was referring to the rape and kidnapping.
To the extent that defendant argues CALCRIM No. 703 was ambiguous or incomplete, the People note this instruction is not read in a vacuum. Rather, it should be read in the context of the other instructions provided to the jury. Again, we agree. Here, the jury received several instructions regarding special circumstances. In particular, the jury received CALCRIM No. 730 (Special Circumstances: Murder in Commission of Felony). This instruction told the jury that defendant was “charged with the special circumstances of murder committed while engaged in the commission of kidnapping and rape.” To prove such special circumstances, the jury had to find, among other things, that defendant committed or aided and abetted the kidnapping or rape and intended to do so. Given the jury’s instruction on CALCRIM No. 730, the People aptly observe that “it is unclear how the jury could have misapplied the instruction in the manner suggested by [defendant] to find that [she] did not intend to kill [victim], but was a major participant in the murder and acted with reckless indifference to human life with respect to the murder, but not the rape and kidnapping.”
Even if we were to find error in CALCRIM No. 703, we find the error to be harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24.) As CALCRIM No. 730 instructed, to find true the special circumstances against a nonkiller aider and abettor, the People had to show that defendant either had the intent to kill or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subds. (c) & (d).) Given the record before this court, the evidence clearly shows that defendant either intended to kill victim, or was a major participant who acted with reckless indifference to human life. Defendant retrieved the gun from the house. Defendant kept the gun with her during the kidnapping and rape. She heard victim’s cries but did nothing to stop Cerda. Defendant admitted pointing the gun at victim’s chest and pulling the trigger. Defendant told Cerda that she did not know if victim could be trusted. And, after Cerda shot victim, defendant did nothing to help her. Instead, she helped Cerda get rid of the evidence. (People v. Hodgson (2003) 111 Cal.App.4th 566, 578-580 [sufficient evidence of reckless indifference where defendant was one of only two individuals involved in the crimes, facilitated the shooter’s escape, and assisted the shooter after victim was shot].) Because we find the evidence of defendant’s guilt to be overwhelming, we conclude that any instructional error was harmless.
VI. DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., KING, J.