Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. C158165, C158350
Kline, P.J.
Deandre Maurice Hill and Darryl Hill appeal from convictions of murder. Deandre contends the trial court erred in granting the prosecutor’s motion to consolidate the cases, forcing his attorney to proceed with trial when he was not prepared, and refusing his request for a limiting jury instruction. He also seeks a remand to enable the trial court to exercise its discretion concerning dismissal of the special circumstance finding and to correct an error in the abstract of judgment. Darryl contends the trial court erred in refusing to sever the trials, in instructing the jury to view his testimony with caution if it determined him to be an accomplice, and in imposing and suspending a parole restitution fine after sentencing him to life in prison without parole. We shall order certain modifications to the judgments and affirm.
In the interest of clarity, because appellants share the same last name, this opinion will refer to each by his first name. No disrespect is intended.
STATEMENT OF THE CASE
Deandre Hill was charged by information filed on April 15, 2008, with the January 22, 2008 murder of Abel Martinez Mejia (Pen. Code, § 187, subd. (a)). It was alleged that the murder occurred while Deandre was engaged in the commission of a robbery, a special circumstance under section 190.2, subdivision (a)(17)(A). The information was amended on September 9, 2008, to allege that Deandre personally used a firearm in the commission of the offense (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and that a principle was armed with a firearm (§ 12022, subd. (a)(1)).
All statutory references will be to the Penal Code unless otherwise specified.
Darryl Hill was charged by indictment filed on May 5, 2008, with the same murder, with allegations that he personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), personally and intentionally discharged a firearm and caused personal injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (d)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). The special circumstance that the murder was committed while the defendant was engaged in commission of a robbery was also alleged (§ 190.2, subd. (a)(17)(A)).
On June 18, 2008 over appellants’ opposition, the prosecution’s motion to consolidate the cases was granted. Subsequently, appellants’ motions for severance were denied. Trial began on September 15 and, on October 21, appellants were found guilty as charged and the special allegations were found true.
On February 10, 2009, Deandre filed a motion to dismiss the special circumstance and for a new trial. These motions were denied on February 20. Darryl’s motion for a new trial was also denied.
Also on February 20, Deandre was sentenced to life in prison without parole plus a consecutive 10-year term under section 12022.53, subdivision (b), and a one-year term under section 12022, subdivision (a)(1). Darryl was sentenced to life in prison without parole plus a consecutive term of 25 years to life under section 12022.53, subdivision (d).
As will be discussed herein, the abstract of judgment and court minutes erroneously indicate the enhancement was under section 12022.53, subdivision (d).
Appellants filed timely notices of appeal on February 20 and March 3, 2009.
STATEMENT OF FACTS
In January 2008, Abel Martinez Mejia was shot and killed while waiting for his food at a lunch truck parked at 85th and San Leandro Streets in Oakland. Griselda Guzman was working as the cashier in the truck and her nephew, Lodegario Pelayo, was working as the cook. Guzman testified that when she asked Mejia for $5 for his burrito, a black man with his hair in “little braids” stepped between Mejia and the truck, with his back to the truck, grabbed Mejia, pushed him and took out a black gun. She did not hear the man say anything. Two or three other black men who looked about 18 to 25 years old were standing by the front of the truck, one of whom also took out a short, black gun. This man looked about 18 to 25 years old. Guzman dropped to the floor of the truck, from where she heard three or four shots close by. It was stipulated that if he testified, the officer who interviewed Guzman in Spanish would state that she told him the man blocking the window of the taco truck was wearing a green sweater.
Lodegario Pelayo Fregoso had noticed a red Mazda RX-7 on 85th Street that backed up and parked in front of the lunch truck. A green car also came from 85th Street and parked. Fregoso saw a 20 to 25-year-old black male with hair “down to the neck” in little braids, wearing a green sweater, get out of the red car. He also saw a similar aged black male with short hair, wearing a white tee shirt, get out of the red car. The second man was about five feet five inches or five feet six inches, and the man in the green sweater was taller. Another two black men to the side of the green car did not approach the lunch truck.
The man in green came up to where Mejia was standing at the window of the truck, buying his food, and stood between Mejia and the truck with his back to the truck. Fregoso heard the man say something like, “Give me everything you have. Everything you have.” The man grabbed Mejia by the collar of his shirt and Mejia took three or four steps backward with his hands up. Fregoso heard four or five shots and saw part of an arm with a firearm, but his view of the rest of the shooter’s body was blocked and he could not tell who it was. He bent down, then stood up about a minute later when he heard the man screaming. He also heard car doors closing. When he stood up a minute later, he saw the red car driving away fast, behind the green car. Fregoso wrote down what he saw of the red car’s license plate, 3KLM97. He thought the man in the green sweater and the man in the white tee shirt left in the red car. Fregoso testified that he saw only one gun during the incident. Although he did not recall it independently at the time of trial, in a recorded statement on the evening of the shooting, Fregoso told the police that there was a man with a gun in each of the cars.
The parties stipulated that Fregoso told a police officer that two vehicles drove past the taco truck on 85th Avenue, then turned around and backed into the dirt lot by the taco truck with their front ends facing 85th Avenue. Officer Gus Galindo interviewed Fregoso in Spanish on the night of the incident. Fregoso said he did not see the man driving the Mazda RX-7, who was wearing a green sweater, with a gun. A male passenger in the car, wearing a white tee shirt, had a gun and fired it. One of the two men Fregoso saw associated with the other car also had a gun. The man in the green sweater was the one who grabbed Mejia. Fregoso described the green sweater as a polar fleece material with a collared top and no hood.
In a March 15 interview with a defense investigator, Fregoso said that he first saw the red and green cars on 85th facing San Leandro, where after the light changed they waited for other cars to pass, then backed up and parked by the truck. In an August 3 interview, Fregoso told the investigator that upon further reflection he only noticed the red car at the light, and then noticed both cars when they parked.
The cause of Mejia’s death was multiple gunshot wounds. An autopsy revealed six bullet wounds: An entrance wound on the back side of the left shoulder, from which the bullet moved toward the right side of the body and down toward the feet; an entrance wound on the back left side of the head, with a path toward the right side of the body and down toward the feet; another entrance wound on the back left of the head, which correlated with an exit wound on the right back side of the head; a “grazing” wound to the left ear and another grazing wound to the left side of the neck. Metallic fragments were found at the back of the left shoulder blade and around one of the wounds on the back of the head and inside the brain.
Five cartridge casings recovered from the scene were determined to be from.22 long rifle caliber cartridges fired from a single.22 caliber semiautomatic firearm. Unfired cartridges examined in relation to the case were of the same type and by the same manufacturer as the casings found at the scene, and the bullet fragments recovered from Mejia’s body were the same caliber and style.
In January 2008, Salah Davis was living with Darryl and their four children on Hawley Street in Oakland. Deandre, his girlfriend Nikole Meadows and her baby sometimes stayed in their living room. Davis testified that Darryl was about six foot four or five inches and wore his hair in “dreads.” Deandre’s hair was in shoulder length dreads.
On the day of the shooting, Davis, Darryl and their children stopped by Darryl’s grandmother’s house, then left together with Deandre, Meadows and her baby. Davis and her family were in their “greenish-blue” two-door car, with Darryl driving; the others were in Deandre’s red Mazda RX-7, with Deandre driving. They stopped at a taco truck and Darryl and Deandre got out of their cars and walked together to the truck, where Davis saw two Hispanic men standing. She testified that Deandre grabbed money from the hand of one of the men, then a few seconds later Darryl shot the man. She saw a dark gun in Darryl’s hand and saw “something dark” in Deandre’s hand as well, but she did not see Deandre shoot. Nor did she see Deandre grab the Hispanic man by the shirt. Davis could see that Meadows, in the car next to hers, was also looking at the taco truck. After the shots were fired, the brothers ran back to the cars. When Darryl got into the car, Davis said, something like, “What the fuck?” He told her to “shut the fuck up.” The group drove “very fast” back to the grandmother’s house. Davis and her family left after a few minutes and eventually returned home. Davis testified that Darryl was wearing jeans and a blue hoody that said “Phat Farm” in white or red writing over a white tee shirt. Deandre was wearing a fatigued hoody with a cream, black and grey print.
Davis testified that when she first spoke to the police about the shooting on February 14, 2008, she did not tell the truth: She said she heard shots but did not see anything. She was afraid that Darryl would find out and hurt her if she told the truth. In the past, Darryl had punched or hit her, resulting in black eyes, and she had torn a ligament in her leg during a struggle with him. On one occasion, Darryl shot Davis in the back of the neck with a BB gun on a camping trip because he was unhappy about Davis having gone for a walk with Deandre; he also initiated a physical fight with Deandre. Darryl physically abused Davis several times a week, but Davis never called the police about Darryl because she was afraid. Davis testified that Deandre had seen marks on her from the abuse. On February 14, 2008, she and her children were staying at her aunt’s house, “basically hiding from” Darryl, but Davis ended up going back to him because she loved him. After talking to the police, Davis heard on the news that there was a reward in connection with this case.
On March 19, Davis, Darryl and their children were pulled over in Richmond; Darryl was arrested and Davis was taken to the police department. Davis testified that the police told her they thought her February 14 statement was a lie, and asked who would care for the children if she and Darryl both “went away.” This time she told the truth about the shooting.
Oakland Police Sergeant Tony Jones testified that he interviewed Davis on February 14, 2008, and she told him she saw a gun in Deandre’s hand at the taco truck, but did not see him shoot it. He interviewed her again on March 19. He did not talk to Davis on either occasion about the possibility of her children being placed in foster care or Davis being charged in the murder case. Davis talked at length about her concern for her children and how it would affect them if Darryl was arrested.
Russzarria (Nikole) Meadows testified that she had been dating Deandre for about two years; she was in love with him and they had talked about getting married. Meadows had also known Darryl for a couple of years. She viewed Darryl as a friend and a brother, and denied ever having been flirtatious or having had sexual relations with him.
On January 22, 2008, Meadows and Deandre drove to the taco truck at 85th and San Leandro with Darryl and his girlfriend in another car. She did not remember the kind or color of either car. The cars arrived seconds apart; she did not remember which parked first. Deandre and Darryl got out of the cars and walked to the taco truck. Meadows stayed in the car listening to music and did not see anything Deandre or Darryl did at the taco truck or hear shots. She looked at the truck when she heard a commotion there and saw the man who got killed and three men running away in the same direction. One of these men was wearing a black hoody and another was black. Deandre and Darryl returned to the cars. Meadows asked what happened and Deandre said someone started shooting.
Meadows testified that on the evening of February 5, the police came to her home, took her to the police station in handcuffs, and left her alone in a locked room for about three hours. She identified a photograph of Deandre, and they took a taped statement from her in which everything she said was what the police told her to tell them when she was being transported to the station. She testified that Sergeant Jones told her if she did not say what he wanted her to say, he was going to put her daughter in foster care. About a week later, her mother “made her” go back to the police and she gave another statement in which she said Darryl was the person in the other car and identified a picture of him. She told the police “[w]hatever my mom told me to tell them”; some of what she said was a lie.
Sergeant Jones testified that Meadows was placed in the interview room at 12:20 a.m. on February 6, taken to get coffee at 1:10 a.m., and left in the room until the interview began at 2:00 a.m. He and his partner talked with Meadows for two hours and 15 minutes, then took a taped statement. Jones testified that there was no conversation about the incident in the car on the way to the police station and that he never told her what to say. Meadows initially said that at the time of the shooting she was asleep in the car, woke up when they were driving away from the taco truck with Deandre’s friends following them in a blue car, and she did not know what happened at the taco truck. Jones said he did not believe her. Meadows then said Deandre had been driving his red car and his friend the blue car, they passed the taco truck, someone made a U-turn, the drivers had a brief conversation and they drove to the lot by the truck. She said they had been coming from a beauty supply store on 9th Street and Deandre had called friends and met them on 50th, near International. There were two guys and a girl in the blue car whom Meadows had seen but did not know. She saw Deandre go to the truck with a friend, saw a Latino “swinging on” Deandre and heard some shots, and saw Deandre pull out a gun. Jones discussed with Meadows her being afraid of Deandre because he saw the police pick her up. In her taped statement, Meadows said that she only knew the person that accompanied her and Deandre to the taco truck as “bruh.”
Sergeant Jones testified that in the second interview, on February 11, Meadows told him some friends had told her Darryl had been looking for her in East Oakland. She acknowledged that Darryl was the person with Deandre and that they both pulled out guns, but the shots were fired by Darryl.
Darryl subsequently testified that he was looking for Meadows to find out what had been happening while he was in custody for the traffic violation, after he asked Davis about things he had heard and she lied to him.
Meadows’s mother, Alise Franklin, testified that the night before her second police interview, Meadows had told her she had seen the shooting of a Latino man at the taco truck while she was with appellants and Darryl’s girlfriend. Meadows told Franklin she saw appellants “in a commotion trying to rob the Latino man and ended up in the shooting” and saw both Deandre and Darryl shoot. Meadows did not want to go to the police on February 11, but Franklin persuaded her.
Meadows testified that in August the district attorney played her tapes of phone calls in which Deandre talked about other women. They did not make her feel jealous, but she could tell that the purpose of playing them for her was to make her mad at Deandre and “go against him.”
Deandre was arrested on February 6, 2008, after a police officer observed him driving Davis’s car and followed him to Hawley Street. Deandre asked why he was being stopped and said he was “only going to his sister Salah Davis’[s] house.” He pointed out the residence and said he had been staying there and had the keys, had done nothing wrong, had previously been stopped in the same location in his red Mazda, and had gotten rid of the Mazda. The police obtained a warrant to search the Hawley Street residence. They seized a plastic camouflage bag containing a plastic case holding five Remington 20-gauge shotgun shells, a gun cleaning solvent or lubricant and cleaning patches from a kitchen cabinet, a photograph of Deandre and a clear plastic sandwich bag containing.22 caliber long rifle rounds and a box of.25 caliber ammunition from a living room closet, and, from a footlocker in an upstairs room, a box of P.M.C..357 magnum ammunition, a box of “Fiocchi.38 Smith and Wesson specials, ” a box of.357 magnum “Winchester super X” ammunition, a box of CCI Blazer.380 ammunition wrapped in a stocking cap, a box of.22 long rifle brass plated hollow-point rounds, an empty case for a revolver or small handgun, a box of P.M.C..25 caliber live rounds, and a clear plastic gallon sized zip-loc bag containing.20 gauge shotgun shells. No firearms were found in the residence. The police found no indicia that Deandre was associated with the residence.
These statements were admitted solely against Deandre. Either Deandre or one of his relatives told the officer Deandre had gotten rid of the Mazda at Pick-N-Pull.
Davis testified that earlier on the day of the search, she had removed from a closet a backpack that she thought was Darryl’s and “had an idea” contained a gun, and took it to Darryl’s cousin Jardon Jenning’s house, because she did not want the gun in the house with her children and was worried the police might show up. She gave the backpack to Jenning, saying something like, “It’s in there.” She first told the police about this in August 2008, at which time she was promised that she would not be prosecuted for removing it from her home. She had not said anything about it previously because she was afraid of being in trouble. Davis testified that she had never purchased ammunition for Deandre and did not know there was ammunition in her house. Jenning, who was arrested with Deandre on February 6, 2008, testified that he had seen Davis earlier that day at a friend’s house in Castro Valley, but she did not give him a backpack.
Meadows and Deandre wrote many letters to each other after his arrest, and she had visited him four times in jail. In one letter, Deandre wrote that he was going to tell his attorney that he was “ ‘forced to do what I did and you should say the same to him. [¶] “Bruh”... pulled out a thang and gave me a scary look and told me to get out, so I did. Tell him you was scared too. It’s true anyway. But he can’t tell you what to say exactly but he can give you hints. That is why I’m kind of telling you. But rip this paper up after you read and don’t write back talking about this because they read incoming mail and let me know if this letter is open when you get it, okay?’ ” In another letter, Deandre wrote that the man on the taco truck had not recognized him in court and “ ‘[n]ow, we have to work on getting our statements threw out, both of ours, because that is going to be the only thing that is holding me in here after that.’ ” He also wrote that if they tried to bring her back to court, “ ‘you was just scared because you never been in nothing like this before and they both were big and intimidating and never said you had any rights.’ ”
Evidence of these letters was introduced only against Deandre.
Meadows had written to Darryl at most three times and had not visited him in jail. At trial, asked about portions of letters she and Darryl had written to each other that appeared to have sexual or romantic overtones, she testified that most of them reflected her loving him as a brother and playfulness between them. One letter from Darryl, however, she acknowledged as expressing romantic and sexual advances. In one letter, Meadows wrote to Darryl: “ ‘I’m hella mad they got you in there for some shit you didn’t even do, ’ ” and “ ‘[i]t’s no way you are going to do hella time for some shit you don’t even know about.’ ” She wrote in another letter: “ ‘I hate to see you all in jail for no reason, ’ ” and “ ‘I be damn if they be trying to sentence you all for some shit you didn’t have nothing to do with.’ ”
Meadows was asked about a taped telephone conversation in which she told Deandre about a movie in which the main character went to a gun store and “buys Berta.” She testified that “Berta” or “Bertha” is “a gun we used to like, ” not one Deandre possessed, but one they saw on television. Asked about hearing appellants refer to “Bertha, ” Jenning testified that he had had a dog named Bertha, but otherwise had not heard such a reference.
Deandre, 19 years old at the time of trial, testified that on the morning of January 22, 2008, Darryl called him at Meadows’s house and suggested meeting at a check cashing place on High Street and International. There, Darryl told Meadows to cash a check Davis had written to Meadows; Meadows tried but was unable to do so. Deandre followed as Darryl drove to his house and waited outside while Darryl went in for about five minutes. Deandre again followed as Darryl drove to the intersection of 85th and San Leandro. Deandre thought they were going to a gas station before heading to Jenning’s house in Hayward. Driving on 85th Street, they passed the taco truck and Darryl stuck his arm out the window, pointed at the truck, then made a U-turn; Deandre pulled up next to him, Darryl said, “to the truck, ” and they drove to the truck and parked.
Darryl came to Deandre’s car, opened his door and told him to get out; Deandre, who did not want food, told Darryl to “go get your shit so we can go.” Darryl asked him again and when Deandre declined, lifted up his shirt to show a gun and told Deandre to “come on.” Deandre “didn’t really want to say no no more. I knew it was something serious.” He thought Darryl might want him to come with him in case someone saw him, because Darryl “had been getting in a lot of shoot-outs around that time, ” or might “want[] to do a purse snatch or something or probably just wanted to get something to eat.” Darryl had told Deandre about purse snatchings he had done, about recently having “got into it” with Davis’s brother and shot at him, and about having shot at a person he thought had taken advantage of Deandre in a car trade. Deandre also thought there might be a problem with his RX-7, for which he had traded another car five or six days earlier. Darryl had found a bullet shell in the car, thought there had been a “shoot-out out of the car, ” and was concerned about Deandre driving it, and someone Deandre knew had called and said he should stop driving the car because the person Deandre had gotten the car from had shot someone from it. Deandre testified that he was fearful for his life when Darryl lifted his shirt. He had seen Darryl with guns “[a] lot of times” before, including semiautomatics and shotguns.
When Darryl showed Deandre his gun, Deandre grabbed his own BB gun, feeling safer having it because a potential drive-by shooter would stop if they saw him with a gun. He put the gun in his pocket and walked to the truck, where he stood leaning on the counter, looking at Meadows in his car. Hearing Darryl whisper, “Dre, ” Deandre looked and saw Darryl nodding toward Mejia, who was directly behind Deandre. Darryl gestured, trying to get Deandre to look at or take money that was in Mejia’s hand. Deandre hesitated because did not want to take the money, but when he saw Darryl reaching for his gun and knew “he was about to shoot and take the money, ” Deandre thought he would be able to take the money and leave without anything happening. Deandre thought Darryl was going to shoot him: Darryl was scowling, the same look he had had when he shot the BB gun at Davis on the camping trip, and Deandre could tell he was “hella mad” at him. Deandre snatched the money from Mejia’s hand and Mejia backed up and swung his arm. Thinking Mejia was trying to hit him, Deandre intended to pull out his gun to scare Mejia so Deandre could leave. He did not have time to do so because he heard shots and Mejia staggered backwards. The shots came from behind Mejia, and no one other than Darryl was standing behind him. Deandre ducked, thinking at first that it was him, not Mejia, who had been shot, then ran to his car and drove to a gas station. He saw Darryl behind him in the rearview mirror during part of the drive. At the gas station, Deandre went inside to pay and when he came out, found Darryl parked in front of his car. He asked Darryl why he did it and Darryl said, “ ‘I was trippin’.’ ” Deandre threw Mejia’s money, still in his hand, at Darryl, told him he “wasn’t fucking with him no more” and “walked off on him.” Deandre drove to Jardon’s house, then to Meadows’s. Deandre did not see anyone else with a gun around the taco truck and did not see anyone run from the scene at the same time he did or see anyone else hanging out by the cars. The next day, Deandre drove by the Berkeley marina and threw the BB gun out.
On January 27, a police officer contacted Deandre in the red Mazda RX-7 on the 6800 block of Hawley Street, having noticed the registration was expired. On February 2, Deandre sold his red 1991 Mazda RX-7 to Pick-N-Pull, an automobile dismantler, for $191. Deandre testified that he did so because the car was “messing up, ” needed new parts and would not pass the smog test for registration, as well as because someone had told him people were looking for the car and he did not want to pass the problem to someone else. He knew he could have gotten more money for it by selling it to a person.
On the night of February 5, Deandre saw Sergeant Jones bring Meadows out of her house. Deandre had been staying at Davis’s house because she needed help with the children while Darryl was in jail. Darryl had been arrested on January 25, 2008, for failure to appear in a case involving a minor traffic violation, and remained in jail until February 10. Deandre testified that before the shooting incident he had been living at his grandmother’s home in Alameda “off and on, ” staying at Meadows’s up to three times a week. He began to stay at Darryl and Davis’s place “after an incident.” Deandre denied the bullets found at Darryl and Davis’s house were his.
Deandre did not want to testify against his brother and his family members, who were in the courtroom, did not want him to. He was testifying because he was not guilty and did not want to be convicted of something he did not do. Acknowledging that he cut his hair in May 2008, he denied this was to alter his appearance from the day of the shooting or to appear more presentable to the jury, but rather that he was getting into a lot of fights because of Darryl telling people that Deandre was “telling, ” and “I got a few of my twisties pulled out.” Deandre told his relatives that the police did not read him his rights in order to make it seem like he had been “screwed over” rather than having voluntarily given a statement about Darryl. He told one of his grandmothers that Sergeant Jones had beaten him for 15 hours, told the other grandmother that the police had made him lie, and told other relatives that Jones had slapped him and knocked him out of his chair, none of which was true. He believed that Darryl and Meadows were having a sexual relationship at some point and was “disappointed at” Darryl, but “mad” at Meadows because she lied to him about it. He testified that at the time of trial, if he were alone in a room with Darryl, and Darryl had a gun but he did not, he would be in fear for his life.
Deandre testified that he never told the police Darryl showed him a gun while Deandre was seated in his car because “they never asked.” He testified that he told the police he felt Darryl was going to kill him if he did not rob Mejia, but did not use those words, when he said he robbed Mejia because, “if I didn’t..., I was going to have to deal with him.” He did not know why he told the police that he did not know Darryl had a gun. He did not tell them his brother forced him to do it because they did not ask. He did not grab Mejia by the shirt or see anyone else do so.
He lied when he told the police he did not own any guns.
Asked about a “rap” found in his jail cell with lyrics about shooting people in Oakland, being given guns by a big brother, and other facts consistent with Deandre’s personal history and the present case, Deandre stated they were not about his own life but only expressions of creativity. Deandre said the same about a poem with lyrics about guns and a Bonnie and Clyde couple.
Darryl wrote Deandre a letter saying “ ‘[t]hrow this shit away after reading, bruh’ ” and instructing him to try to persuade Meadows not to testify, but Deandre did not follow these instructions. The letter said: “Also, I have been talking to my B.M. She says she is not going to show up, bruh. Do you think your bitch going to show up? If not, cool. If so, try to get her to come see you and tell her not to show up.”
Deandre testified that in the letter he wrote to Meadows about what she should say about the incident, he intended to tell her to tell the truth, because she “is a liar, ” and not to direct her about what to say. The letter in which he referred to trying to get their statements thrown out was intended to tell her to “keep reminding them that she was forced to say what she said.”
Deandre denied shooting a man in the hand on January 3, 2007, at his Uncle Edgar Antoine’s house. He did not remember being at his uncle’s house with Darryl, being present when his uncle got into an argument with this man, or being at the house when shots were fired. He had only fired a gun once, into the air, on July 4, 2007. He had had a.9 millimeter semiautomatic since before the taco truck incident, which he kept in his van, but did not know where it was at the time of trial. He referred to his gun as “Bertha.” After his arrest, he called his grandmother Arzella Davis, and asked her to have his cousin get his clothing and “Berta” out of his van. He wanted the gun out of the van because he thought it would be searched and knew it was illegal to have a gun in a van. In a subsequent call with his grandmother, he confirmed that they had gotten the “other little thing, ” meaning the gun, out of the van.
Deandre told Jenning about the taco truck incident, including that he took Mejia’s money and Darryl shot him, but did not say that he felt threatened by Darryl or Darryl made him do it. He told Jenning there were “Berta shells, ” meaning bullets, in the van that Jenning needed to remove because Jenning was driving the van and Deandre thought it was illegal to have the bullets in it.
In a phone call to his other grandmother, Joyce Miranda, soon after his arrest, referring to Davis, Deandre said, “ ‘[s]he needs to tell you what happened, it’s real serious, she knows what happens.’ ” He told his grandmother, “ ‘[i]t wasn’t intended to go like the hell it went. [Darryl] fucking retarded man. I don’t even want to talk about it on the phone.’ ” He also told her “ ‘I didn’t do it, ’ ” meaning he did not kill anyone, and Meadows must have said something to the police and that was why they came to get him.
Deputy District Attorney Jennifer Madden testified as a witness for Deandre that when she interviewed him on February 7, 2008, after reviewing the statement he had given to the police, Deandre initially said he did not want to talk, then agreed to do so. He said he was very tired, irritated and mad about the situation, saying, “I feel like I’m the wrong person to be talking to.” Deandre said, “[h]e didn’t have to do what he did” and, from the context of the conversation, Madden believed him to be referring to Darryl. He told Madden, “I really wasn’t intending on going over there doing that, but then when I seen him go over there, he was just looking like, you know, waiting on something to happen.” When Darryl nodded toward the money Mejia was holding, Deandre thought he meant “get it and run with it.” Deandre never said that Darryl showed him a gun while Deandre was still sitting in his car, that he feared Darryl would have killed, shot or injured him if he did not rob Mejia, or that he felt his life was threatened by Darryl. He said he never saw Darryl pull a gun out, “[h]e just came out of nowhere.” When Deandre said that he did not just leave instead of taking Mejia’s money because “I know I was going to have to deal with him, ” Madden did not take this to mean that he was afraid for his life. When asked why he threw his BB gun in the water if he had never shot it, Deandre said, “[b]ecause I’m not even supposed to have a gun. That’s not even me to have a gun.” Madden did not recall Deandre ever saying he had a.9 millimeter or other weapons.
Tyrone Davenport testified that he went to Antoine’s house to collect money Antoine owed him for drugs. He was shot by a black man in dreadlocks who was a “whole lot younger” than his own 57 years. The bullet went into his left hand and also hit his upper thigh. Davenport could not identify the shooter in court.
Edgar Antoine, appellants’ uncle, testified that he did not know a man named Tyrone Davenport or owe him money in January 2007, and that he did not remember giving a statement to the police or being shown pictures in relation to an incident at his house in January 2007, although when he was shown the photographic lineups at trial he acknowledged having put his initials on the back and his signature on the corresponding statements. He did not remember telling the police that Darryl pointed a gun at a man in his house or that Deandre shot the man, and testified that no one had ever been shot in his home. Oakland Police Sergeant Steve Glover, however, testified that on January 3, 2007, Antoine told the police that Davenport had been upset when Antoine did not have $85 Antoine owed him, appellants pulled out guns, and Deandre fired one shot that struck Davenport. Antoine subsequently identified appellants in photographic lineups.
Sergeant Jones interviewed Deandre beginning at 11:30 p.m. on February 6, and began recording his statement at 1:33 a.m. on February 7. Deandre said he had been living with “his sister Salah” at her residence on Hawley Street, having been kicked out of his grandmother’s home on Pacific in Alameda. About the shooting, he initially said that Darryl grabbed Mejia’s money and shot him; he, Deandre, did nothing. After Jones told him what Meadows had said, Deandre said he took the money from Mejia, Mejia “swung on him, ” and Darryl shot Mejia. Asked what he thought was going to happen when Darryl told him to get out of the car, Deandre said, “ ‘I knew it was about to be some type of something, but I didn’t think it was going to be nothing like that, ’ ” and “ ‘[i]ntentions wasn’t even to go get the money. I was going to go watch actually.’ ” At the gas station after the shooting, Deandre said, he asked Darryl “what the fuck did you-and I couldn’t even look at him. Had to just leave.’ ” Jones asked what was going through Deandre’s mind when he took Mejia’s money and Deandre said, “ ‘I don’t know. It was like-if I wouldn’t have did that, I don’t know what would have happened, cause it was like when we walked up he was waiting on me to make a move or something.’ ” In response to a follow up question, Deandre said, “ ‘God forgive me.’ ” Deandre never said that he initially declined to get out of the car and Darryl asked him again, and never said Darryl showed him a gun while Deandre was still seated in his car, that he saw Darryl grab for his own gun before Deandre grabbed Mejia’s money, that he feared Darryl would kill, shoot or injure him if he refused to commit a robbery, or that he felt his life threatened by Darryl.
Darryl testified that around the date of the shooting, Deandre had been living with him for “multiple months” and almost all the ammunition found at Darryl’s house, except the shotgun shells, belonged to Deandre. Darryl said Deandre was not staying with his grandmother in Alameda because he did not want to abide by her curfew and rules for the house.
Darryl denied shooting a BB gun at Davis on the camping trip, testifying that when Deandre and Davis returned from their walk he got into a “wrestling thing” with Deandre, then made Davis get in the van with him and left. Asked about the incident at their uncle’s house, Darryl said that he and Deandre went in response to Antoine calling, saying “get here right now” and sounding like “something was really bad happening.” Deandre gave Darryl one of his pistols and they went into the house, where they found a man going through his uncle’s pockets. Deandre told him to leave and when he did not, protesting that their uncle owed him money, Deandre cocked his pistol; when the man again refused to leave, Deandre shot him. The brothers looked at each other “and it was like, should I finish him.” Darryl said no and they left. At that time, Darryl was keeping multiple guns at his house for Deandre, including three handguns and a shotgun he gave Darryl “for holding the guns at my house for him.”
Deandre had told Darryl about being in “a lot” of shoot outs. Darryl saw Deandre shoot at someone he said was “looking at him funny, ” and on another occasion someone shot at the brothers when they were driving and both shot back. On one occasion, Darryl called Deandre and asked him to come over because Davis’s brother “shot my vehicle up with my kids and Salah in the car” and he wanted Deandre to be there in case Davis’s brother came back. Darryl called the police but they did not do anything and Davis’s brother continued to threaten Darryl, so Darryl shot up the other man’s car when the man was not in it. Darryl used the.22 long rifle which, he said, Deandre later used at the taco truck, and picked it up afterward.
Darryl testified that on this occasion Deandre had picked him up with their cousin and Deandre’s prostitutes in the car, they were riding around and someone fired shots at them. Neither of the brothers had sex with prostitutes, but Deandre was a pimp.
Regarding the testimony about going to a check cashing place the day of the shooting, Darryl testified that it was in fact about a week after the shooting: Deandre came to Darryl’s house saying he had no money, Darryl thought “maybe he was going to do something to get some money, ” so Darryl told him “don’t do it” and Davis said she would write a check for Deandre and his girlfriend to cash.
Darryl had advised Deandre not to trade his car for the red Mazda because he knew the prior owner “had the car on rims and took the rims off apparently for some reason and he wanted to get rid of it.” Darryl found a bullet casing in the Mazda. The only other thing he told Deandre about the car was after driving and parking it, he told him “it wasn’t worth it.”
On January 22, 2008, Deandre, Meadows and her daughter arrived at Darryl’s apartment building without warning, just as Darryl and his family were leaving. Darryl stopped to talk to Deandre, who said he needed money for gas, and Darryl gave him ten dollars. They all headed for a gas station, but on the way arrived at the taco truck, where Darryl had been a few times before. Deandre parked, then Darryl parked; Deandre got out first, then Darryl got out and saw Meadows and Davis getting out. Darryl walked toward the truck, intending to get food for the four adults. Before Darryl could get all the way to the truck, he saw Deandre approaching a man standing at the window where people get food from the truck. Deandre “snatched something” from the man, pulled out a pistol “real quick” and shot him. Darryl thought he heard Deandre say something like “[g]ive me your money” or “[g]ive me what you got.” The man jumped back and put his hands up in front of him; he did not swing at Deandre. The man was “turning slowly” when he was shot. Asked if he could explain how the man got shot in the back of the head, Darryl said, “[m]aybe as he was turning, I guess, ” and denied that it was because he was standing behind the man to the left. Darryl said he was standing by the front bumper of the truck and never got close to Deandre or the man, and did not have any weapons with him. After the man was shot, Darryl ran back to his car, not wanting to be involved. Deandre beat him back to the cars and pulled out first, and Darryl followed him to the gas station.
When Deandre came out of the gas station, Darryl asked him what happened and Deandre said, “he snatched the money and dude didn’t give it up, he didn’t give up whatever else he wanted so he shot him.” Deandre did not give Darryl any money, and Darryl assumed he paid for his gas with the money Darryl had given him and the money he took at the taco truck. They drove to Jenning’s house in Castro Valley, then went out to eat in Tracy, then all returned to Darryl’s and stayed there that night.
Darryl testified that Deandre always had a gun on him. He referred to all his guns as “Berta.” After the taco truck incident, Darryl had a 12-gauge weapon at his house and Deandre had a.22 Ruger; Deandre never had a.9-millimeter.
Darryl testified that “something happened” between him and Meadows after the shooting, while Deandre was in jail. Darryl did not tell Deandre or Davis about it. Darryl did not have a backpack; he had a duffel bag in which he kept clothes “when Salah try to kick me out or something.” There were no guns in the bag. He sometimes had physical disputes with Davis in which they hit each other, but Deandre never witnessed them. Darryl acknowledged having slapped Davis between five and 10 times, but denied giving her a black eye and testified that her knee injury occurred when she was chasing Darryl downstairs and fell. He testified that he would sometimes get mad at Davis, yell at her and call her names, but only physically assaulted her when she assaulted him first.
The first time Darryl spoke with Sergeant Jones, when he was in custody for a traffic violation, Jones asked about the taco truck incident and Darryl said he did not know what Jones was talking about. Jones told him Deandre had told them what happened and Darryl said he did not know what Deandre was talking about. Darryl denied having said he did not see or hang out with Deandre. He did not tell Jones about what Deandre did at the taco truck because he did not want to be labeled as a snitch. Jones played Darryl a portion of the tape of Deandre’s statement and asked if he wanted to see his brother, then let the brothers talk alone. Darryl started to cry and Deandre said, “ ‘[d]on’t worry about it. I got rid of the gun and everything we will probably be in jail for about three months. Five months.’ ” Deandre said the police had searched Darryl’s home, but did not find anything. Jones also told Darryl his house had been searched.
Darryl testified that a box of Remington.22 long rifle brass-plated hollow-point bullets he had purchased were in the chest at his house, along with the bullets he was holding for Deandre. Darryl did not have a gun to use these bullets, but had purchased them for Deandre. He also bought the gun cleaning supplies for Deandre. Deandre kept bullets in a plastic bag so he would have them for reloading if he got into a shoot out.
In a letter found in Darryl’s jail cell, he told Davis, “ ‘I understand if you don’t want to be with me anymore. I have been mean through our relationship. I apologize for my reactions, Salah. I hope you forgive me.’ ” Darryl testified that he was referring to being “ ‘on her about every little thing.’ ” The letter continued, “ ‘I need for you to do one thing for me. Please, please. I know I’m good for it. Please take back your statement for me or please don’t show up for trial. This place isn’t for me, Salah.’ ” In the letter, Darryl told Davis, “ ‘You say you scared of me. You don’t have to be worry about me being abusive, Salah. I now take meds to slow me down. That is between me and you.’ ” Darryl acknowledged that he made up the part about taking medication, as well as that Davis might be scared of him. He noted that a “ ‘whole lot of people’ ” were scared of him although he had “ ‘never done anything, ’ ” perhaps because of his size and appearance: He was six foot six inches tall, weighed 210 pounds before he went into custody, wore his hair in dreads and had gold teeth. Darryl testified that Davis lied in her testimony at trial because of her family and his own family, because he cheated on her with Meadows. His own family favored Deandre and wanted him out of jail “ ‘whether he is wrong or not.’ ”
Darryl denied that he had only started to associate with Deandre a few days before the taco truck incident. Shown a letter in which he wrote, “ ‘Dre, saying I’m always getting him in some shit. He don’t like me. He just started to speak to me a day or two before all this happened, ’ ” Darryl said this was “ ‘just something to say’ ” and “ ‘[n]ot true at all.’ ”
Darryl changed his hair style after he was released from custody (in February) because he saw on the news that there was a $50,000 reward for him and he got scared. He was staying in multiple places at this time, including at his cousin Yolanda’s house. He acknowledged that one of the items on a list of things to do found on his cell phone was, “ ‘[t]ell Yolanda that she’s my concrete alibi. I was at her house on January 22 doing plumbing and putting up a bed.’ ” He was not at Yolanda’s house that day.
Darryl loved his brother and felt “ ‘real bad’ ” about testifying against him, but stated, “ ‘it is wrong. He shot a man before and got away with it and the whole family didn’t believe me. And now he killed a man and everybody blaming on me. It is taking a lot out of me.’ ” Darryl denied trying to get some people to attack Deandre when he found out Deandre might be testifying. Asked whether he tried to persuade Deandre not to testify against him, Darryl said he “ ‘tried to persuade him not to get up here and make lies up and try to get his self out of the situation.’ ”
DISCUSSION
I.
Both appellants challenge the trial court’s decision to conduct a joint trial. Deandre argues the consolidation and subsequent denial of severance were erroneous because appellants presented antagonistic defenses. Darryl argues the denial of severance was erroneous because appellants’ defenses were mutually exclusive and because in a joint trial evidence against him would be admitted as part of Deandre’s duress defense that the jury would not hear if Darryl was tried separately.
“Our Legislature has expressed a preference for joint trials. (People v. Boyde (1988) 46 Cal.3d 212, 231.) Section 1098 provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses. (People v. Avila (2006) 38 Cal.4th 491, 574–575; People v. Massie (1967) 66 Cal.2d 899, 917.) Additionally, severance may be called for when ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ (Zafiro v. United States (1993) 506 U.S. 534, 539 [addressing severance under Fed. Rules Crim. Proc., rule 14, 18 U.S.C.]; People v. Coffman and Marlow [(2004)] 34 Cal.4th [1, ] 40.)” (People v. Lewis (2008) 43 Cal.4th 415, 452.) But joint trial is the rule and severance the exception. (People v. Alvarez (1996) 14 Cal.4th 155, 190.)
Defendants charged with having committed “ ‘common crimes involving common events and victims’ (People v. Keenan (1988) 46 Cal.3d 478, 500)” present “a ‘classic case’ for a joint trial.” (People v. Hardy (1992) 2 Cal.4th 86, 168.) Joint trial where defendants present “different and possibly conflicting defenses” is “not necessarily unfair.” (Ibid.) “If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials ‘would appear to be mandatory in almost every case.’ [Citation.]” (Ibid., quoting People v. Turner (1984) 37 Cal.3d 302, 312-313.) “ ‘Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ [Citations.]” (People v. Hardy, at p. 168.) “Antagonistic defenses do not warrant severance unless the acceptance of one party’s defense would preclude acquittal of the other.” (People v. Burney (2009) 47 Cal.4th 203, 239; People v. Lewis, supra, 43 Cal.4th at p. 461.) Indeed, courts have observed, “ ‘ “That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.” ’ [Citations.]” (People v. Morganti (1996) 43 Cal.App.4th 643, 674-675, quoting People v. Hardy, supra, 2 Cal.4th at p. 169, fn. 19.)
“We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion. (People v. Hardy[, supra, ] 2 Cal.4th [at p.] 167.) If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Keenan[, supra, ] 46 Cal.3d [at p.] 503.) If the court’s joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder ‘ “resulted in ‘gross unfairness’ amounting to a denial of due process.” ’ (People v. Mendoza (2000) 24 Cal.4th 130, 162.)” (People v. Lewis, supra, 43 Cal.4th at p. 452.)
As the prosecutor expressly acknowledged below, appellants’ defenses were unquestionably antagonistic: Deandre claimed that he participated in the robbery only because he was afraid of Darryl, and that Darryl shot Mejia; Darryl claimed that Deandre acted alone, robbing and shooting Mejia while Darryl was still on his way to get food at the taco truck. This fact, however, is not dispositive. As our Supreme Court has repeatedly observed, “ ‘[w]hen... there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.’ ” (People v. Tafoya (2007) 42 Cal.4th 147, 162, quoting People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; see People v. Burney, supra, 47 Cal.4th at p. 239; People v. Carasi (2008) 44 Cal.4th 1263, 1297-1298.)
Here, there was abundant evidence against both Deandre and Darryl aside from the conflict in their defenses. Guzman and Fregoso, the taco truck workers, both described the incident being perpetrated by two men with guns. Davis saw Deandre grab money from Mejia and saw Darryl shoot him. While Meadows disclaimed any knowledge about the incident in her trial testimony, she had told the police that she saw both brothers pull out guns and that Darryl shot Mejia, and she had told her mother that she saw both appellants involved in the shooting. In his statements to the police and to family members about the incident, Deandre never mentioned being threatened by or afraid of Darryl.
Darryl contends that at a separate trial, the jury would not have heard the “prior bad acts” evidence Deandre used to establish his duress defense, including shootouts in which Darryl had been involved, the incident in which Darryl fired a BB gun at Davis, and the shooting incident at appellants’ uncle’s home. The evidence relating to Davis, however, would have been admissible at a separate trial against Darryl because it related to Davis’s explanation that she initially lied to the police because she was afraid of Darryl. We need not resolve whether the other evidence at issue could have been admissible at a separate trial. Even without the evidence of Darryl’s involvement in other shootings, the obvious inference to be drawn from the quantity of weapons and ammunition found at his residence was that guns played a role in his life. The critical evidence against Darryl was the testimony, and pretrial statements, of both his own and Deandre’s girlfriend that they saw him shoot Mejia.
Darryl suggests that once severance was denied, the only options open to the jury were to believe him entirely and disbelieve Deandre entirely, to believe Deandre entirely and disbelieve Darryl entirely, or to convict both brothers because of the irreconcilable differences between their defenses. This argument begs the question. Clearly the jury did not entirely believe either Deandre or Darryl. But because of the independent evidence against each of them, it cannot be said that the rejection of their defenses was due only to their being tried jointly. (People v. Tafoya, supra, 42 Cal.4th at pp. 162-163; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Burney, supra, 47 Cal.4th at p. 239; People v. Carasi, supra, 44 Cal.4th at pp. 1297-1298.)
“Joint trials are favored because they ‘promote [economy and] efficiency’ and ‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” ’ [Citation.]” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40, quoting Zafiro v. United States, supra, 506 U.S. at p. 537.) Here, appellants were charged with the same offense arising out of a single incident; the forensic evidence against them was the same, as were the witnesses. This was a “ ‘classic case’ for a joint trial” (People v. Hardy, supra, 2 Cal.4th at p. 168) despite appellants’ conflicting defenses. The trial court did not abuse its discretion in consolidating the cases or refusing to sever them, and appellants have not shown that trying them jointly “ ‘ “resulted in ‘gross unfairness’ amounting to a denial of due process.” ’ "” (People v. Lewis, supra, 43 Cal.4th at p. 452, quoting People v. Mendoza, supra, 24 Cal.4th at p. 162.)
II.
Deandre next contends his constitutional rights were violated when the trial court forced his attorney to proceed to trial despite counsel’s repeated statements that he was not prepared.
On June 6, 2008, Deandre’s attorney requested funds for investigation into Deandre’s duress defense, which would include psychological testing, interviewing family members, and obtaining school and health records. The court expressed some question whether duress was available as a defense to murder, but authorized funds for the investigation. At this point, the trial was set for July 28, with Darryl having waived time and Deandre not waiving time; the prosecution had filed its motion to consolidate three days before.
On July 18, Deandre moved to continue the trial on the basis of difficulties encountered in preparing for trial, including scheduling a hearing on a Pitchess motion, obtaining records from the juvenile court, and reviewing recently received discovery, as well as other matters to be discussed with the court in camera. On July 28, with counsel representing that he was “80 to 85 percent certain” he could be ready for trial in November, the court granted a one-week continuance to August 4. Deandre waived time for trial.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Deandre filed another motion to continue the trial on July 31. Counsel explained that he had represented Deandre from February 11 until May 1, 2008, when his motion to be appointed was denied, then began to represent him again on June 6, 2008, after obtaining writ relief from this court. The interruption in his representation delayed counsel’s filing of a discovery motion, disrupted the continuity of his thinking about the case, and required him to work around commitments made during the period of interruption. Counsel’s declaration detailed his unsuccessful efforts to have the prosecutor stipulate to a continuance when he realized he would not be ready for trial, and described the factors that were delaying his preparation despite his diligent efforts, including pursuing a witness he learned about after a discovery motion was granted, difficulty obtaining Darryl’s juvenile court records, the court’s failure to authorize funds for a mental health expert for some 43 days, which prevented counsel from determining the defense he would pursue, the prosecution’s ongoing investigation and failure to produce certain test results, and the need for further witness interviews. The prosecution opposed the motion. After an in camera discussion with Deandre’s attorney, the court found good cause for a continuance on one ground related to a mistake by the court but, as to the others, found counsel had not been diligent and there was “some level of game-playing going on related to the timing of trial.” Trial was set for September 9, 2008.
Deandre filed another motion to continue on September 5, 2008. Counsel stated he was not fully prepared for trial because the whereabouts of exculpatory witnesses were unknown, but were being actively sought; the police department had not complied with a subpoena, and a hearing was likely to be needed regarding subpoenas for Darryl’s medical and psychiatric records; time would be needed for investigation once the subpoenaed records were produced; and more time was needed to review recorded jail calls produced in discovery. Counsel did not anticipate being ready for trial for two or three weeks. The motion was denied, the court explaining that discovery and investigation would continue throughout the trial. The court commented that Deandre’s attorney had been working diligently and was “basically ready for trial, ” although “[t]here are things that need to be done as there are with any trial.”
On the first day of trial, September 9, 2008, Deandre’s attorney informed the court that he was not prepared, investigation was continuing, and there were witnesses he was still trying to find but could not yet state his intention to call. The court noted that jury selection was not scheduled to begin until September 22. On September 17, at the conclusion of a hearing on a defense motion to suppress evidence, counsel reiterated that he was not ready for trial despite having been “working more hours than I care to talk about” and, in particular, would not have time for the 40 recorded jail calls he had not yet reviewed (of 140 total) in addition to the rest of his preparation. The trial court stated that counsel still had a lot of time as evidence presentation would not being until September 29.
At the end of the day on October 15, counsel told the court he needed to make a phone call to see whether he was going to be prepared to proceed with a witness the following day. The court responded that it was not going to grant a continuance for any reason.
Deandre subsequently moved for a new trial on the basis that he was forced to proceed to trial with counsel who had notified the court he was not prepared and that new evidence had been discovered that could not, with reasonable diligence, have been produced at trial. Counsel’s declaration described the ways in which he was not prepared, including insufficient investigation into the incident at appellants’ uncle’s home and inability to obtain statements from family members concerning Darryl’s mental health problems. Counsel had obtained the uncle’s medical records, which would corroborate his testimony that he was a schizophrenic and used crack cocaine, and statements about Darryl’s mental instability and violence from several family members who had previously refused to discuss these matters with Deandre’s defense or whom the defense had not had time to interview. The court viewed the evidence as collateral, in that the “significant” testimony was from the witnesses to the incident, and denied the new trial motion.
The issue of counsel’s insufficient preparation was raised again at sentencing, when counsel told the court the proceeding against Deandre was “fundamentally flawed” throughout and Deandre had not been given the chance to present a full defense.
Counsel stated: “I’ve been practicing law since December 1981, and I’ve never seen a case like this. The proceeding against my client was fundamentally flawed. It was flawed from the beginning. It was flawed through[out] this trial, and as a result, this sentence is flawed. [¶] I know your Honor can’t do anything about it. But seems to me that the system that’s prepared to impose this type of punishment on somebody, ought to be prepared to make sure that his rights are protected and make sure that he gets his chance to present a full defense, make sure that the evidence code is followed, due process is followed. It didn’t happen in this case. It did not happen. And as a result, the sentence that you are now mandated to impose is morally wrong. It’s morally wrong. It is outrageous. To do this to somebody after this kind of proceeding is a travesty.” Counsel concluded with the hope that the Court of Appeal would send the case back for “new fair pretrial proceedings, proceedings where the right to counsel is not interfered with.”
“ ‘A “trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citation.] A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” [Citation.] Such discretion “may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” [Citation.] “To effectuate the constitutional rights to counsel and to due process of law, an accused must... have a reasonable opportunity to prepare a defense and respond to the charges.” [Citation.]’ [Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 296, quoting People v. Roldan (2005) 35 Cal.4th 646, 670.) However, “[n]ot every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel.” (Morris v. Slappy (1983) 461 U.S. 1, 11.)
Deandre argues that his attorney did not have the opportunity to interview many family witnesses prior to trial who could have provided important evidence supporting his defense and that he was not given sufficient time to investigate all aspects of the incident at his uncle’s house so as to lessen the impact of that incident. Deandre does not explain how additional time would have allowed him to present more favorable evidence regarding the shooting at his uncle’s house: He points to his uncle’s medical records, but explains neither why these records could not have been obtained sooner nor how the information they contained would add significantly to Antoine’s own admission that he was schizophrenic and used cocaine. Deandre also does not explain how a continuance would have enabled him to obtain the statements he ultimately obtained after the trial from four family members concerning Darryl’s mental health and character. According to the declarations submitted in support of the new trial motion, two of these witnesses refused to speak to the defense investigator before trial because they did not want to “take sides.” Deandre offers no suggestion why a pretrial continuance would have altered this refusal; indeed, in discussing the new trial motion with the trial court, counsel acknowledged that his level of preparation for trial was irrelevant as to the witnesses who “weren’t willing to take sides between the brothers until after trial.” Another of the family members was not interviewed before trial because counsel placed him low on his priority list. Counsel acknowledged that he had the information contained in the declaration of the fourth witness before trial and does not explain what corroboration he believed he needed in order to present it effectively or why he could not obtain it.
Deandre’s attorney represented him from February until May 1, 2008, then again from June 6, 2008 on. Although he was never granted the lengthy continuances he sought, he did receive a one-week continuance of the original trial date and then a one-month continuance. The trial court considered the requests carefully, in particular the July 31 request, as to which the court met privately with Deandre and his attorney and explained that it had reviewed counsel’s bills and found he had spent very little time on the case in June and July, indicating either that he was ready for trial or had not exercised due diligence, and that he had spent no time on several of the tasks for which he was now saying he needed time. The court also noted several areas in which counsel had not been diligent and commented on the discrepancy between counsel’s earlier assertions of readiness to go to trial in June on a no time waiver basis, and his current assertions that he was not ready for trial. At that point in time, the court found a one-month continuance justified due to a court error, but denied a longer continuance because it found counsel had not been diligent and it was concerned about “game-playing” related with the timing of trial. Subsequently, the court found that the remaining investigation counsel sought to pursue could be conducted on an ongoing basis during trial. We find no abuse of discretion in the refusal to grant further continuances and no deprivation of Deandre’s Sixth Amendment rights.
III.
Deandre contends the trial court erred in refusing his request for a limiting instruction telling the jury to use the evidence of the shooting incident at his uncle’s house only to rebut his duress defense and impeach him on this issue, and not as evidence of his character or propensity. In discussions about the admissibility of testimony about this incident, the prosecutor stated that she did not plan to use it as Evidence Code section 1101 evidence, for which it would have to be similar to the charged offense, but to challenge Deandre’s testimony that he was scared of Darryl, whom he portrayed as dangerous, armed and hotheaded, by showing that a year before it was Deandre who was hotheaded and violent. The court found the evidence admissible.
Before the evidence was presented, Deandre requested a limiting instruction telling the jury it was not to be considered as character or propensity evidence, but only for the purpose the prosecutor stated. The court declined, stating it did not want to “suggest to [the jury] how to look at this evidence, ” Deandre had put at issue the question whether he acted under duress in the present offense, and the uncharged offense was relevant to rebut Deandre’s portrayal of himself.
Later, counsel again requested CALCRIM No. 375, the limiting instruction regarding permissible uses of evidence of uncharged offenses. The court denied the request, again stating that the evidence had come in solely to impeach Deandre.
CALCRIM No. 375 directs the jury that the prosecution presented evidence that the defendant committed a specified uncharged offense and, if it finds by a preponderance of the evidence that the defendant committed the uncharged offense, it may consider the evidence for a specified limited purpose, but not to conclude the defendant has a bad character or is disposed to commit crime. Here, Deandre wanted the jury to be told it could consider the evidence of the incident at Uncle Edgar’s house only for the limited purpose of determining whether Deandre acted under duress in the present case.
Evidence Code section 1101 provides that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion” (Evid. Code, § 1101, subd. (a)), but such evidence is admissible to show “that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act” (Evid. Code, § 1101, subd. (b)). Evidence Code section 1101 does not affect “the admissibility of evidence offered to support or attack the credibility of a witness.” (Evid. Code, § 1101, subd. (c).)
Deandre contends that the evidence that he shot Davenport “arguably fit within at least one category of evidence covered by section 1101, subdivision (b)” and, therefore, “a limiting instruction was required upon request.” The absence of an instruction directing the jury as to the permissible use of this evidence, he maintains, permitted the jury to convict him of the charged murder because it found he was a bad man with a propensity to use guns.
When evidence of uncharged offenses is admitted under Evidence Code section 1101, the trial court must give a limiting instruction upon request. (People v. Grant (2003) 113 Cal.App.4th 579, 591; Evid. Code, § 355.) Here, as the trial court explained in denying the requested instruction, evidence of the incident at Edgar’s house was not offered under Evidence Code section 1101, but in order to impeach Deandre’s credibility, in response to his testimony that he had not previously shot guns and was not a violent person. People v. Sapp (2003) 31 Cal.4th 240, 281, held that “[n]o instruction on propensity evidence was... warranted” where evidence concerning other murders was cross-admissible to rebut a defense that the defendant’s confessions should not be believed because he tended to falsely confess crimes he did not commit. Appellant correctly points out that Sapp was concerned with a claim that the court should have given a limiting instruction on its own initiative, rather than in response to a request. (Ibid.) Trial courts generally are not required to give limiting instructions sua sponte. (People v. Grant, at p. 591.) The language employed in Sapp, however, was that the instruction was not “warranted, ” not that the instruction was not required to be given sua sponte.
In any event, even if the trial court erred in failing to give the requested limiting instruction, the error was not prejudicial. The evidence against Deandre was strong. He was observed at the taco truck with Darryl, taking Mejia’s money and holding a gun; other incriminating evidence included his letters from jail, which appeared to suggest how Meadows should testify; his sale of his Mazda RX-7 for parts shortly after he was contacted by the police; and his failure to tell the police that he acted as he did at the taco truck because he was threatened by or afraid of Darryl. His familiarity with guns was evident from his acknowledgment that he kept a gun in his van, which he had relatives remove after his arrest.
Deandre urges that the evidence of the shooting at his uncle’s house was exacerbated by the prosecutor’s “propensity argument, ” telling the jury, “[y]ou are the violent one, Deandre.” In fact, the prosecutor never asked the jury to use the shooting incident as propensity evidence. Initially, the prosecutor referred to the incident as part of her explanation why Deandre’s duress defense did not make sense. The prosecutor argued that all Deandre had given the jury to show he truly and reasonably believed Darryl was going to kill him if he did not take Mejia’s money was Darryl’s domestic abuse of Davis, his access to guns, the look he gave Deandre, and his going for his gun right before Deandre took the money. The prosecutor then stated: “To say that you thought your brother was going to kill you if you didn’t take the money under [those] circumstances is ridiculous especially because one year before that you shot a man in Uncle Edgar’s house with your brother. You did it. You are the violent one, Deandre, not Darryl. That is why this doesn’t make any sense. That is why the duress defense doesn’t make any defense [sic].”
The prosecutor went on to say that she did not know whether to call Darryl’s defense less or more ridiculous than Deandre’s, pointing out that Darryl said he knew nothing about what was going on, but he had a gun with him, stood around the taco truck waiting for something to happen, changed his hair, moved from house to house, and told the police he knew nothing about a taco truck murder.
Subsequently, the prosecutor clarified: “Deandre Hill stood up here and testified and really tried to make it look like he has basically never done anything wrong in his life. That he stepped in for [Davis] when she was being beaten by Darryl. That he has not shot Mr. Davenport. [¶] Now, that incident with Mr. Davenport at Uncle Edgar’s house is not being given to you for the purpose of proving that Deandre shot or took place in the murder of-at the taco truck. That is not it’s point. The point of that incident is not to prove to you Deandre Hill is a bad man or Deandre Hill is a violent man. You didn’t hear about it until he took the stand and said that he was placed under duress by his brother. That incident is a direct rebuttal to that. [¶] You and your brother committed a crime before and you were the ring leader. You were the leader. You weren’t acting at your brother’s force of threats or violence. It was you acting on your own accord. That’s the point of the Uncle Edgar incident.” The prosecutor’s remarks thus conveyed the substance of the limiting instruction Deandre requested, albeit without the force of an actual instruction from the court.
In light of the evidence against Deandre, and the prosecutor’s express explanation of the purpose of the evidence, there is no reasonable probability the outcome of the trial would have been more favorable for Deandre if the trial court had given the limiting instruction. (People v. Stewart (2004) 33 Cal.4th 425, 494; People v. Wilson (2008) 43 Cal.4th 1, 19.)
Appellant recognizes that claims of error in refusing limiting instructions are generally reviewed under the “ ‘normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to [the] defendant had the instruction been given.’ ” (People v. Wilson, supra, 43 Cal.4th at p. 19.) He argues that the error here must instead be subjected to the standard of review for federal constitutional error (Chapman v. California (1967) 386 U.S. 18, 24) because “the issue here involves the violation of appellant’s fundamental rights under the United States Constitution.” Relying upon Dowling v. United States (1990) 493 U.S. 342, 352, Deandre argues admission of the prior offense evidence without a limiting instruction was “ ‘so extremely unfair that its admission violate[d] “fundamental conceptions of justice.” ’ ” Dowling rejected an argument that admission of evidence concerning a prior offense of which the defendant had been acquitted rose to the level of constitutional error. Noting that the court has “defined the category of infractions that violate ‘fundamental fairness’ very narrowly, ” Dowling held that “[e]specially in light of the limiting instructions provided by the trial judge, we cannot hold that the introduction of [the prior offense evidence] merits this kind of condemnation.” (Dowling v. United States, at pp. 352-353.) The Dowling court had explained its reasons for finding the prior offense evidence admissible and referred to the limiting instruction as bolstering its conclusion that the evidence was admissible. It did not hold, as Deandre seems to suggest, that introduction of other crimes evidence without a limiting instruction necessarily violates fundamental fairness.
IV.
Darryl contends the trial court erred in instructing the jury that if he was shown to be an accomplice, his testimony should be viewed with caution. He maintains the trial court should have instructed the jury to view with caution only his testimony against Deandre, but to apply the general rules of credibility in evaluating Darryl’s testimony in his own defense.
The jury was instructed in accordance with CALCRIM No. 334: “[B]efore you may consider the statements by and testimony of Darryl Hill and Deandre Hill as evidence against each other, you must decide whether Darryl Hill and Deandre Hill were accomplices.” After describing how to determine whether a person is an accomplice, the instruction directed that if the jury found a person was an accomplice, it could not convict a defendant of robbery based on his or her testimony alone, but only if it was supported by other independent evidence that tended to connect the defendant to commission of the crime. The instruction continued: “Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution, and in light of all the other evidence.”
The full instruction was as follows: “[B]efore you may consider the statements by and testimony of Darryl Hill and Deandre Hill as evidence against each other, you must decide whether Darryl Hill and Deandre Hill were accomplices. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if: [¶] 1. He or she knew of the criminal purpose of the person who committed the crime; [¶] And [¶] 2. He or she intended to, and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime. [¶] The burden is on each defendant to prove that it is more likely than not that each of them is an accomplice. [¶] If you decide that a witness was not an accomplice, then supporting evidence is not required and you should evaluate his or her testimony as you would that of any other witness. [¶] If you decide that a witness was an accomplice, then you may not convict a defendant of robbery based on his or her testimony alone. You may use the testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice’s testimony. [¶] And [¶] That supporting evidence tends to connect the defendant to the commission of the crime. Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact about which the accomplice testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice. [¶] Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution, and in light of all the other evidence.” (CALCRIM No. 334.)
Darryl argues that because all of his testimony “tended to incriminate” Deandre, this instruction effectively told the jury to view all of Darryl’s testimony with caution if it found him to be an accomplice. He argues that, as indicated in one of the bench notes to CALCRIM No. 334, “[w]hen the witness is a codefendant whose testimony includes incriminating statements, ... the court should instruct that when the jury considers [the testifying codefendant’s] testimony as it relates to the testifying codefendant’s defense, the jury should evaluate the testimony using the general rules of credibility, but if the jury considers testimony as incriminating evidence against the non-testifying codefendant, the testimony must be corroborated and should be viewed with caution.” (CALCRIM No. 334, Bench Notes, pp. 110-111.)
The bench note derives from People v. Coffman and Marlow, supra, 34 Cal.4th at page 105. In that case, the jury was instructed to apply the general rules of credibility when weighing each codefendant’s testimony in his or her own defense, but to view the testifying codefendant’s testimony against the other codefendant with distrust if it found the testifying codefendant to be an accomplice. (Id. at pp. 104-105.) The court rejected contentions that this instruction was virtually impossible to follow, holding that there was evidence each defendant was an accomplice to the other and the instruction properly directed the jury on how to view the testimony in this situation. (Id. at p. 105.) “The instruction correctly informed the jury that, insofar as it assigned one accomplice-defendant’s testimony any weight in determining the codefendant’s guilt, it must view such testimony with distrust and find sufficient corroboration, as elsewhere defined for the jury. We see no reason to believe this relatively straightforward task was beyond the jury’s capabilities. Contrary to Marlow’s argument, the instruction did not undermine the presumption of innocence or deprive defendants of due process. As we have observed: ‘[T]he testimony of a defendant ought not to be viewed without distrust simply because it is given by a defendant. Under the law, a defendant is surely equal to all other witnesses. But, under that same law, he is superior to none.’ [Citation.]” (Id. at p. 105, fn. omitted, quoting People v. Alvarez, supra, 14 Cal.4th 155, 219.)
Coffman and Marlow noted that “[b]ecause the evidence abundantly supported an inference that each defendant acted as an accomplice to the other, and because each testified and, to some extent, sought to blame the other for the offenses, the court was required to instruct the jury that an accomplice-defendant’s testimony should be viewed with distrust to the extent it tended to incriminate the codefendant.” (People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 104-105, fn. omitted, citing People v. Alvarez, supra, 14 Cal.4th at pp. 217-218.) The further elaboration of the instruction actually given in Coffman and Marlow-spelling out that the jury should view an accomplice’s testimony in his or her own defense under general rules of credibility-was upheld but not necessarily required. Instead, the court noted that it had recently “prescribed a modification of the standard instruction, by which the testimony of an accomplice that is unfavorable to the defense is to be viewed with care and caution. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 105, fn. 36.) Guiuan stated, “the jury should be instructed to the following effect whenever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies: ‘To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case.’ ” (People v. Guiuan, at p. 569.)
The jury in the present case was instructed, in accordance with this directive, that before it could “consider the statements by and testimony of Darryl Hill and Deandre Hill as evidence against each other, you must decide whether Darryl Hill and Deandre Hill were accomplices, ” and that “[a]ny testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution, and in light of all the other evidence.” This instruction informed the jury that the direction to view an accomplice’s testimony with caution applied to each codefendant only to the extent his testimony incriminated the other codefendant. (See People v. Alvarez, supra, 14 Cal.4th at p. 218.) Darryl did not request the further clarification he now urges was required. “A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial. (E.g., People v. Hart (1999) 20 Cal.4th 546, 622.)” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
People v. Alvarez, supra, 14 Cal.4th 155, upheld a trial court’s instruction that testimony of an accomplice that tends to incriminate a codefendant should be viewed with distrust, noting that the trial court modified the standard instruction, which did not contain the italicized language. “The superior court stated that the ‘purpose’ of its modification ‘is to tell the jury they should view with caution that portion that incriminates the defendant, rather than cast a shadow over all of the testimony of a co-defendant....’” (Id. at pp. 217-218.)
Darryl claims he received ineffective assistance of counsel due to his attorney’s failure to request the modified version of CALCRIM No. 334. Because the instruction given properly informed the jury of the applicable principles governing accomplice testimony, there is no reasonable probability a different result would have been reached if the modified instruction had been given.
Darryl relies upon People v. Rubio (1977) 71 Cal.App.3d 757, 769, to argue that CALCRIM No. 334, as given here without modification, improperly “singles out defendant’s testimony as subject to more particular scrutiny than that attached to prosecution witnesses.” Rubio addressed an instruction allowing the jury to consider as reflecting consciousness of guilt pretrial statements about the offense made by the defendant that the jury found to be willfully false or deliberately misleading. The trial court held that an instruction was appropriate only when the falsity of the statements was shown by the defendant’s inconsistent testimony at trial, not when the defendant’s trial testimony was consistent with the former statement and the falsity of the statement was shown by prosecution evidence. In the latter case, Rubio stated, the defendant’s testimony was improperly singled out for special scrutiny.
After People v. Kimble (1988) 44 Cal.3d 480, 496, which held that the rule allowing admission of a defendant’s false pretrial statement is not limited to situations where the falsity is demonstrated by the defendant’s trial testimony, Rubio “is no longer a correct statement of the law.” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103.) Edwards held that the instruction is justified when there is evidence the defendant “prefabricated a story to explain his conduct, ” the falsity of the statement may be shown by other evidence even when the defendant testifies consistently with it, and the fact that the instruction “may single out defendant is not a determinative factor.” (Id. at pp. 1103-1104.)
So, here, CALCRIM No. 334 did not improperly subject Darryl’s testimony to greater scrutiny than other witnesses. “If an accomplice who testifies against a defendant deserves ‘close scrutiny’-and he does-he deserves such scrutiny even if he is himself a defendant. Like any other accomplice, an accomplice-defendant has the motive, opportunity, and means to try to help himself at the other’s expense.” (People v. Alvarez, supra, 14 Cal.4th at pp. 218-219.) The instruction given, albeit not as explicit as the one in Coffman and Marlow, properly directed the jury to determine whether Darryl was an accomplice and, if he was, to view with caution his testimony against Deandre. In so doing, it did not deprive Darryl of the right to testify on his own behalf. Drawing on Rock v. Arkansas (1987) 483 U.S. 44, 49, Darryl suggests that the instruction amounted to an arbitrary or disproportionate restriction on his right to testify. Rock v. Arkansas, explaining that “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve, ” held that an evidentiary rule excluding the defendant’s hypnotically refreshed testimony was an impermissible limitation on her constitutional right to testify on her own behalf. As explained above, the instruction given here was neither arbitrary nor disproportionately restrictive of Darryl’s right to testify.
V.
Deandre contends his case must be remanded to enable the trial court to exercise its discretion as to whether to dismiss the jury’s special circumstance finding. He argues that the trial court erroneously believed it had no discretion to strike the finding. “ ‘A ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]’ (People v. Penoli (1996) 46 Cal.App.4th 298, 302.) ‘Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]’ (Id. at p. 306.)” (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
Deandre relies upon cases stating, in the context of sentences of life imprisonment without parole, that a trial court has discretion under section 1385 to strike a special circumstance finding and resentence the defendant. (People v. Lewis (2004) 33 Cal.4th 214, 228 (Lewis); People v. Zimmerman (1984) 36 Cal.3d 154, 159; People v. Marsh (1984) 36 Cal.3d 134, 142; People v. Williams (1981) 30 Cal.3d 470, 485 (Williams).) Although all but one of these cases predates section 1385.1, which removes trial courts’ ability to strike special circumstance findings, Deandre maintains that Lewis limited the application of section 1385.1 to death cases, leaving trial courts’ discretion intact in cases where the sentence is life without parole.
Section 1385.1, which became effective June 6, 1990 (Tapia v. Superior Court (1991)53 Cal.3d 282, 298-299), provides: “Notwithstanding Section 1385 or any other provision of law, a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive.” Section 1385.1 “ ‘clearly and unmistakably’ ” prohibits a trial court from striking a special circumstance finding in order to reduce a sentence of life imprisonment without possibility of parole. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1093; People v. Johnwell (2004) 121 Cal.App.4th 1267, 1283; People v. Mora (1995) 39 Cal.App.4th 607, 614-615.)
Deandre’s contention that Lewis held, contrary to the cases above, that section 1385.1 precludes trial courts from striking special circumstance findings only in cases where a sentence of death was imposed, is based on a partial quotation: “... in the context of a life imprisonment without possibility of parole sentence... the trial court retains discretion pursuant to section 1385 to strike a special circumstance finding and resentence the defendant accordingly.” (Lewis, supra, 33 Cal.4th at p. 228.)
In Lewis, after the defendant was sentenced to death, the case was remanded due to error committed in the review of the defendant’s automatic application to modify the penalty (§ 190.4, subd. (e)). (Lewis, supra, 33 Cal.4th at p. 218.) On remand, the trial court refused to entertain the defendant’s motion to strike the jury’s special circumstance, viewing it as outside the scope of the remand order, which directed only a redetermination of the motion to modify the penalty. Lewis noted that Williams, in holding that the trial court in the context of a life without possibility of parole case, “retains discretion pursuant to section 1385 to strike a special circumstance finding and resentence the defendant accordingly” (Williams, supra, 30 Cal.3d at p. 490), expressly reserved the question whether the analysis applied to “ ‘a finding of special circumstances after the jury has returned a verdict of death.’ ” (Lewis, at p. 228, quoting Williams, at p. 490, fn. 11.) The Lewis court continued: “Although section 1385.1 now divests the trial court of such discretion in death cases for crimes committed on or after June 6, 1990 (see Tapia v. Superior Court[, supra, ] 53 Cal.3d [at pp.] 298-299), this court has never definitively resolved the question for earlier cases. (See, e.g., People v. Cooper (1991) 53 Cal.3d 771, 849.) We have noted, however, that ‘[i]t is at least arguable that section 190.4, subdivision (e), provides the sole remedy after a death verdict.’ (Ibid.)” (Lewis, supra, 33 Cal.4th at pp. 228-229.) That is, Lewis confirmed that the Supreme Court had never determined whether a trial court has discretion to strike a special circumstance finding after the trier of fact imposed the death penalty. The court went on to again postpone determining this issue, finding that the trial court properly refused to consider the motion to strike because it was outside the scope of the remand order.
Penal Code section 190.4, subdivision (e), provides in pertinent part: “In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.”
The language in Lewis that Deandre relies upon appears in the next portion of the court’s discussion, in which it explains why the trial court’s refusal was correct. “A modification application pursuant to section 190.4, subdivision (e), addresses a specific and limited aspect of a capital trial, the final act of the court prior to pronouncement of judgment and imposition of penalty. This presupposes the defendant has made any and all other pertinent motions. Thus, when a case is remanded solely for the purpose of rehearing on the application, no further opportunity is available for consideration of matters outside the scope of that narrow proceeding.
“This determination does not deny equal protection because trial courts can, on remand, strike special circumstance and enhancement findings for noncapital defendants. Capital and noncapital defendants are not similarly situated. The penalty modification application, and the trial court’s role in ruling on the application, are unique to capital proceedings. Whether in the first instance or on remand, the court is not resentencing the defendant, but reweighing the evidence to determine whether the jury’s verdict is supported under the law and the evidence presented. (§190.4, subd. (e).) Noncapital defendants are in an entirely different position at resentencing, where the trial court reassesses the appropriate penalty. (See, e.g., People v. Gutierrez (1980) 109 Cal.App.3d 230, 233.)” (Lewis, supra, 33 Cal.3d at p. 229, italics added.)
Deandre views the italicized language above as holding that section 1385.1 does not limit trial courts’ discretion to strike special circumstance findings in life without parole cases, as contrasted with cases in which the death penalty has been imposed. But the court was not interpreting section 1385.1, it was considering the consequence of its decision that a motion to strike a special circumstance finding could not be raised on a remand for the different purpose of reconsidering an automatic motion to modify the penalty from death to life without possibility of parole. The court’s equal protection point, from which appellant extracts the partial quote he relies upon, was that capital and noncapital cases could be treated differently because the defendants were not similarly situated. Section 1385.1 did not apply in Lewis because the defendant’s offenses were committed before the statute’s effective date. Consequently, the reference to courts’ discretion to strike special circumstance findings in life without parole cases cannot be read as an interpretation of the reach of section 1385.1.
Nor is Deandre’s argument supported by the statement in Lewis that “section 1385.1 now divests the trial court of such discretion in death cases for crimes committed on or after June 6, 1990.” (Lewis, supra, 33 Cal.4th at pp. 228-229.) This statement cannot be taken as a holding that section 1385.1 does not divest the trial court of such discretion in cases where the sentence was life without possibility of parole. Tapia v. Superior Court, supra, 53 Cal.3d at pages 298-299, which Lewis cited in support of its statement, did not draw a distinction between cases in which a death sentence was imposed and those in which the defendants were sentenced to life without parole. Tapia simply held that section 1385.1, which it described as “preclud[ing] a judge from striking a special circumstance that has been admitted or found to be true, ” did not apply retroactively. (Ibid.) Its only discussion of the statute was to explain that this holding was due to the fact the statute “could arguably be said to increase the punishment for crime.” (Tapia v. Superior Court, at p. 298, fn. 17.)
Tapia v. Superior Court explained: “Section 26 (adding Pen. Code, § 1385.1) provides that ‘a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court....’ This section appears to be a direct response to our opinion in People v. Williams[, supra, ] 30 Cal.3d 470, in which we held that a trial court had power to dismiss a special circumstance finding ‘in furtherance of justice’ in order to modify a sentence of life imprisonment without the possibility of parole. In light of this history, section 26 could arguably be said to increase the punishment for crime.” (Tapia v/ Superior Court, supra, 53 Cal.3d at p. 298, fn. 17.)
The plain language of section 1385.1 requires a conclusion that, for crimes committed after the statute’s effective date, trial courts lack discretion to strike a special circumstance finding regardless whether the defendant was sentenced to death or to life without possibility of parole.
VI.
Deandre next contends the trial court erred in failing to stay the one-year sentence it imposed for the arming enhancement under section 12022, subdivision (a). Respondent concedes the point.
As described above, the jury found true allegations that Deandre personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)), and that a principal was armed with a firearm (§ 12022, subd. (a)(1)). The trial court imposed a 10-year prison sentence for the section 12022.53, subdivision (b) enhancement, and a one-year consecutive sentence for the section 12022, subdivision (a) enhancement.
Section 12022.53, subdivision (f), provides in pertinent part: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.” (Italics added.) Section 12022.53, subdivision (f), requires that after a trial court imposes punishment for the section 12022.53 enhancement with the longest term of imprisonment, additional firearm enhancements under section 12022.53 and the other specified statutes, including section 12022, for the same crime “must be imposed and then stayed.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1123.)
Accordingly, the judgment shall be modified to stay the enhancement imposed under section 12022.
VII.
Darryl contends the trial court erred in imposing a parole restitution fine under section 1202.45, because he was sentenced to life in prison without possibility of parole. Deandre, belatedly, joins in this argument. As to both appellants, the fine was imposed and stayed.
Although Deandre did not file his joinder in Darryl’s argument until long after briefing on the appeal was complete, the claim amounts to one of an “unauthorized sentence” and is therefore not forfeited. (See People v. Anderson (2010) 50 Cal.4th 19, 26.)
Section 1202.45 provides in pertinent part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (Italics added.) This fine is not applicable when the defendant is not eligible for parole. (People v. McWhorter (2009) 47 Cal.4th 318, 380; People v. DeFrance (2008) 167 Cal.App.4th 486, 505; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) Respondent concedes that the judgment must be modified to strike the parole restitution fine.
VIII.
Deandre additionally seeks correction of the abstract of judgment with respect to the section 12022.53 enhancement. Deandre was charged with and sentenced to a 10-year prison term for the personal use of a firearm described in section 12022.53, subdivision (b). The abstract of judgment and court minutes, however, indicate that the enhancement was under section 12022.53, subdivision (d). Section 12022.53, subdivision (d), provides for a consecutive term of 25 years to life for personal and intentional discharge of a firearm proximately causing great bodily injury or death to a person other than an accomplice.
Respondent concedes that the abstract of judgment should be corrected to reflect that the enhancement was pursuant to subdivision (b) of section 12022.53, and not subdivision (d) of that statute. The abstract of judgment and court minutes shall be so corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185; see People v. Guiffre (2008) 167 Cal.App.4th 430, 435.)
DISPOSITION
The judgment against Deandre shall be modified to stay the one-year enhancement under section 12022, and to reflect that the section 12022.53 enhancement was pursuant to subdivision (b) of that statute. The judgments against Darryl and Deandre shall be modified to strike the section 1202.45 parole revocation fine. As so modified, the judgments are affirmed.
We concur: Lambden, J., Richman, J.