Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Mangay Chung, Judge. Reversed in part as to Defendant and Appellant Reno Williams; otherwise affirmed as to both Defendants and Appellants, No. MA034105
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Reno Williams.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Laquane A. Keith.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen, Daniel C. Chang and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendants and appellants Laquane A. Keith and Reno Williams guilty of first degree, special circumstance murder; attempted robbery; kidnapping; and dissuading a witness. On appeal, defendant Keith contends that the trial court abused its discretion by denying his motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and that the court violated his Sixth Amendment right to a jury by imposing an upper term sentence. Defendant Williams contends that the court abused its discretion by admitting evidence of his prior robbery conviction and by excluding evidence of the prosecution’s main witness’s arrest. In addition, he contends that there is insufficient evidence to support his conviction for dissuading or intimidating a witness. As to defendant Williams, we agree that there is insufficient evidence to support the jury’s verdict finding him guilty of intimidating a witness, and we therefore reverse the judgment as that count only. We otherwise affirm the judgment as to Williams and Keith.
Each defendant joins in the arguments of the other, to the extent applicable.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. Prosecution’s case.
In August 2005, Justin Roddy was a 14-year-old student at Palmdale High School. He played basketball in a league with defendant Reno Williams, and, sometimes, defendant Laquane Keith would be there.
On August 18, 2005, Roddy went outside his house to get a bible from the car for his mother. It was late. Seeing Williams and Keith, who were walking down his street, Roddy asked, “ ‘What’s up[?]’ ” Keith asked Roddy if he wanted to get some “licks,” which Roddy understood meant to go and rob people. Roddy said he wasn’t “ ‘into that,’ ” and Keith called him a “bitch.” Roddy went inside his house, but, realizing that he’d forgotten his mother’s bible, he went back outside. Keith snuck up behind Roddy and put his hand over Roddy’s mouth and a gun to his head, warning Roddy he would shoot him if he screamed.
Keith told Roddy to get into the driver’s seat of Roddy’s mother’s car, and Keith got into the front passenger side seat; Williams sat in the back seat. Telling Roddy that he was going to drive them wherever they wanted to go, Keith directed him to Food4Less so that they could rob someone. At Food4Less, Keith told Roddy to wait until somebody who looked like they “had bank” came out. A woman with a little girl came out of the store. Keith said she looked like she had “bank” and told Roddy to follow her. The woman drove away, and Roddy followed her to her house. People came out of the house, and Keith told Roddy to leave. Chanelle Roberts testified that on August 18, she went to Food4Less during the early morning, and, after leaving the store, she noticed a car with three young Black men in it, following her. Apprehensive, she called her husband to meet her outside.
At Keith’s direction, Roddy drove around until they saw a woman by a mailbox. Keith told him to stop the car, and Keith and Williams then got out of the car, but not before telling Roddy not to make any false moves or Keith would “blow up [his] fucking head off.” Both armed, Keith and Williams approached the woman, who screamed and ran. Keith and Williams got back into the car and told Roddy to drive away.
Roddy drove for about 30 minutes. When they were near a 7-Eleven, Keith told Roddy to stop the car. Keith and Williams got out of the car and approached a Black man. The man crossed the street, and Keith and Williams got back into the car. Roddy drove again, past a young man who was holding some snacks. Keith told Roddy to make a U-turn and pull up alongside the man, LeMarcus Spencer. Spencer bent over to see who was in the car, and Keith told him to, “ ‘Give me the money. Throw the snacks and stuff in the car.’ ” Spencer asked, “ ‘Is this for real?’ ” Keith shot him once. Spencer put his hands to his chest and ran towards the 7-Eleven. Sticking his body out of the car, Williams shot at him with a rifle. Williams told Roddy to leave, and he drove back to his street. Spencer died of multiple gunshot wounds, one to the neck and the other to the abdomen. Lying next to Spencer’s body were two unopened boxes of candy and a bag of chips. No money or wallet were found on his body.
According to the deputy medical examiner who performed an autopsy, the trajectory of one of the shots was consistent with a scenario in which the shooter was seated in a car and Spencer was bent at the waist at about a 90-degree angle. Spencer also had abrasions on his face that were consistent with running and falling, but he did not have any other marks that could be associated with a physical altercation or fight.
After Roddy drove Keith and Williams to his street, Keith told Roddy to open his mouth. Keith put his gun in Roddy’s mouth and said that if Roddy ever told on him, he would kill him. After dropping Keith and Williams off, Roddy went home.
A police officer recovered a.25 caliber gun the following month, September 2005. In the course of investigating an unrelated shooting, the officer was led to an abandoned house on Cardiff Street in the City of Palmdale by Jacob Thomas Johnson. A bullet recovered from Spencer’s body had been fired from this.25 caliber gun.
After their arrest, Keith and Williams were placed in a jail holding cell together and their conversation was recorded. During their conversation, Keith and Williams denied saying anything, and Keith suggested that “Justin said somethin[g].” Keith referred to a “deuce five,” which is a.25 caliber gun, and he said that the police got the gun, but his fingerprints weren’t on it. Keith said he went to “Nanny[’s]” house and she told him “that boy”—Justin—gave him up, and she advised Keith to leave. Williams referred to Justin as “the only witness,” and so they agreed that Justin needed to be killed. They discussed that everybody knew “we did it.” Williams said they found “that burner on Jeremiah, the little one,” and Keith said he didn’t think they had the “other one.”
A redacted recording was played for the jury.
A burner is a gun.
B. Defense case.
Rosalie Johnson testified that in August 2005 Roddy told her that he took his parents’ car without permission and met Keith and Williams to go joyriding and to look for victims to rob. They first went to Food4Less and followed a woman home; they were going to rob her, but people came out. They then drove around looking for other people to rob, until they encountered Spencer, with whom they had a physical altercation. Williams fired one shot at Spencer, but he missed and he passed out in the backseat of the car because he was drunk. Spencer ran, and they followed him, telling him to give them whatever he had. Keith pulled out the gun, saying to Roddy that “ ‘if I pull the gun, I am going to use it.’ ” Keith shot the victim several times. Roddy did not say he had been forced to participate.
Jeremiah Clark was arrested on September 2, 2005 for assault with an automatic or semiautomatic gun. He initially told the police he got the gun from Keith, but, at trial, he said he got it from his brother.
Williams testified in his defense. He admitted to being a member of the Whitsett Avenue gang, a Crips gang, whereas Roddy is a member of the Black P Stones, a Bloods gang. On August 15, 2005, just three days before Spencer was killed, Williams was shot in the knee, forcing him to stay in and recuperate for several days. He was taking medications and drinking alcohol. Williams and Keith are members of the same gang, but when he was interviewed by police on January 2, 2006, he lied and said he did not know either Keith or Roddy.
II. Procedural background.
Trial was by jury. On January 8, 2008, the jury found Keith and Williams guilty of: (1) count 1, first degree murder of Spencer (Pen. Code, § 187, subd. (a)); (2) count 2, attempted second degree robbery of Spencer (§ 211); (3) count 3, kidnapping of Roddy (§ 207, subd. (a)); and (4) count 4, dissuading a witness, Roddy (§ 136.1, subd. (c)(1)). As to count 1, the jury also found true, with respect to both defendants, two special circumstance allegations under sections 190.2, subdivision (a)(17) and (21). The jury found true as to counts 1 and 2 weapons use allegations against both defendants under section 12022.53, subdivisions (b), (c) and (d). As to count 3, the jury found that Keith personally used a firearm, under section 12022.53, subdivision (b). As to count 4, the jury found true the allegations that Keith used or threatened force or violence and that he personally used a gun under section 12022.5, subdivision (a).
All further undesignated statutory references are to the Penal Code.
The murder was committed during the commission or attempted commission of an enumerated felony, including robbery.
The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally, at another person outside the vehicle with the intent to inflict death.
On February 6, 2008, the trial court sentenced Williams, on count 1, to life without the possibility of parole plus 25 years to life on the gun use allegation. On count 3, kidnapping, the court sentenced him to the high term of eight years, and on count 4, dissuading a witness, the court imposed the mid-term of two years. The sentences on counts 3 and 4 were consecutive to the sentence on count 1.
The court imposed but stayed sentences on the remaining enhancements on count 1. The court also stayed the entire sentence on count 2.
On February 13, 2008, the trial court sentenced Keith, on count 1, to life without the possibility of parole plus 25 years to life on the gun use allegation. On count 3, kidnapping, the court sentenced him to the high term of eight years plus a consecutive 10 years under section 12022.53, subdivision (b). On count 4, dissuading a witness, the court imposed the mid-term of three years plus the mid-term of four years under section 12022.5, subdivision (a). The sentences on counts 3 and 4 were consecutive to the sentence on count 1.
The court imposed but stayed sentences on the remaining enhancements on count 1. The court also stayed the entire sentence on count 2.
DISCUSSION
I. Marsden.
Defendant Keith requested new counsel be appointed for him under Marsden, supra, 2 Cal.3d 118. After an in camera hearing, the trial court denied the motion, and Keith now contends that the court abused its discretion by denying the motion and, alternatively, failing to conduct an adequate inquiry into the reasons for Keith’s request for new counsel.
A. Additional facts.
Before trial began, defendant Keith made a Marsden motion on November 3, 2006. At the hearing on the motion, Keith explained that he had a “conflict of interest. I don’t feel like my defender is for my best half in this case [sic].... [A] member of my family overheard him speaking to the D.A. as he referred to me as a dead man walking.... [¶] To me it shows a biased opinion, and he has already found me guilty in his opinion. I need someone who is going to, like, spend time with me on this case.... I need to get me an investigator and so on and so forth... because I don’t think I have the proper defense.”
Keith’s defense counsel responded by, first, describing his extensive experience, and, second, denying that he referred to his client as a “dead man walking.” Defense counsel suggested that “if Mr. Keith wants to start making those false accusations against me, then maybe we could start tape recording all our conversations, and we’ll see who is saying what.” He explained that Keith did not appreciate being told to stop joking around and to quit acting silly. He added that Keith doesn’t like public defenders and believes that they all deal with the D.A.: “And it’s my belief that if Mr. Keith has that attitude, then any public defender, let alone me, a senior public defender, would not be able to help him. [¶] Maybe he wants to get a private attorney like he had before. The family is out here. Or maybe he wants to represent himself.” In response, Keith protested that it wasn’t that he had a general dislike of public defenders; he just felt that this specific one was not working on his behalf.
Denying the Marsden motion, the trial court found no specific legal grounds showing that Keith had been given incompetent or ineffective counsel. The court also declined to find an “irretrievable breakdown” in the relationship, “and it appears to be a situation were I to appoint any other attorney, many of these issues would still be the same.” The court also found representation to have been competent thus far.
B. The trial court did not abuse its discretion by denying Keith’s Marsden motion.
Where the record clearly shows that appointed defense counsel is not adequately representing the accused, the defendant has the right to have appointed counsel discharged or substituted. (Marsden, supra, 2 Cal.3d at p. 123.) “ ‘ “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681, disapproved of on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We review a trial court’s ruling on a Marsden motion for abuse of discretion, but “appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would ‘substantially impair’ the defendant’s right to effective assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)” (Roldan, at p. 681.)
Here, Keith cited two reasons for wanting different appointed counsel. First, one of his family members overheard defense counsel referring to Keith as a “dead man walking,” and, second, his counsel was not providing a “proper defense” and Keith needed “an investigator.” Neither reason provided a ground to discharge counsel. Defense counsel denied that he ever referred to Keith as a “dead man walking,” and the trial court was entitled to credit counsel’s representation. (People v. Abilez (2007) 41 Cal.4th 472, 488 [to the extent there is a credibility question between client and counsel at a Marsden hearing, the trial court is entitled to accept counsel’s explanation].)
Next, Keith vaguely said his counsel was not providing a proper defense. This allegation, however, was made in the context of Keith’s unhappiness over the “dead man walking” comment, and, moreover, lacked specificity as to how his defense was improper. The trial court asked defense counsel to detail his background, which included 40 years of experience and 240-to-245 jury trials, some of which were death penalty cases. He also visited defendant in jail, after hours, on his own time. Keith did refer to an investigator, and defense counsel asked whether Keith was asking for in propria persona funds, but the trial court clarified that Keith was only asking for funds for an investigator. Keith did not otherwise explain what needed investigation or suggest that his counsel was ignoring some part of his defense.
Although the record does not support a conclusion that defense counsel’s representation was inadequate or that there was an irreparable breakdown in the relationship, it does show that counsel was nonetheless irritated at what he called Keith’s “false accusations against me.” Still, as the trial court noted, such tensions between client and counsel are normal in a high stress case and do not necessarily evidence an “irretrievable [sic] breakdown in the relationship.” Rather, a defendant’s claim not to trust his counsel, without more, is insufficient to compel the trial court to replace him: “ ‘If a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.’ [Citation.]” (People v. Abilez, supra, 41 Cal.4th at p. 489; see also id. at pp. 486-487 [defendant claimed his counsel was disrespectful and sarcastic; counsel conceded he was “ ‘straightforward’ ” and “ ‘brusque,’ ” and court found no irreconcilable conflict].)
Nor does the record establish that the trial court’s inquiry into Keith’s reasons for wanting to discharge appointed counsel was insufficient. “ ‘[W]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy.’ [Citation.]” (Marsden, supra, 2 Cal.3d at pp. 123-124.) The record shows that the court allowed Keith to explain the grounds for his motion and, after defense counsel responded, afforded Keith the opportunity to respond. But his response offered merely generalities, i.e., “I feel that [he] is not working on my behalf....”
This is in marked contrast to what occurred in People v. Groce (1971) 18 Cal.App.3d 292, upon which Keith relies. In Groce, the defendant made a Marsden motion and stated as a ground for it that his defense counsel refused to get the doctor’s report concerning the victim’s alleged injury; that evidence, the Court of Appeal noted, was critical to the victim’s credibility. (Groce, at p. 296.) Rather than having counsel respond to this, the trial court merely assured the defendant that his counsel was adequate. (See also People v. Hill (1983) 148 Cal.App.3d 744, 754-755 [trial court did not ask defense counsel to respond to his client’s complaints, instead undertaking to investigate them, off the record, by itself]; People v. Cruz (1978) 83 Cal.App.3d 308, 317 [trial court did not ask public defender’s office to respond to charges of a conflict of interest, thereby “fail[ing] in its duty of inquiry”].) In contrast to Groce and the other cases cited in which the trial courts failed to have defense counsel respond to their clients’ complaints, Keith was given a “full opportunity to air all of his complaints, and counsel to respond to them.” (People v. Smith (2003) 30 Cal.4th 581, 606.) No abuse of discretion therefore occurred.
II. Admission of Williams’ prior conviction for robbery did not render the trial fundamentally unfair or otherwise deny him due process.
Just a week after the murder of LeMarcus Spencer, Williams committed a robbery on August 25, 2005. The prosecution was allowed to impeach Williams with that robbery. Williams now contends that the court abused its discretion by admitting that evidence, and therefore his trial was fundamentally unfair and he was denied due process.
A. Additional facts.
Before trial started, defense counsel for Reno Williams, in the event his client testified, objected to the admission of Williams’s prior conviction for robbery. The trial court engaged in an analysis under Evidence Code section 352 and found, on balance, that the robbery was probative and that any potential prejudice from admitting evidence of it would not substantially outweigh its value. The court, however, limited the prosecution to the fact of the conviction and date it was committed and prohibited the prosecutor from going into the facts of the robbery. The court noted that the robbery also was not remote in time, having occurred on August 25, 2005.
Williams testified. He admitted he was convicted of a robbery for stealing four cans of beer from a market. On cross-examination, the prosecution elicited that Williams took the beers, but when the store clerk confronted him, Williams struck the clerk’s head. He admitted he was with another gang member during the robbery.
B. The trial court did not abuse its discretion by admitting the prior robbery conviction.
In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to: a witness’s character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; his attitude toward the action in which he testifies or toward the giving of testimony; and his admission of untruthfulness. (Evid. Code, § 780.) “Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code section 352.” (People v. Harris (2005) 37 Cal.4th 310, 337.)
To determine the admissibility of a prior conviction, four factors should be considered: “(1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial; and, (4) finally, what effect admission would have on the defendant’s decision to testify.” (People v. Castro (1985) 38 Cal.3d 301, 307.) Trial courts have broad discretion in ruling on the admissibility of prior convictions for impeachment purposes. (People v. Collins (1986) 42 Cal.3d 378, 389; People v. Clair (1992) 2 Cal.4th 629, 655.)
Applying the four Castro factors here, Williams’s prior conviction was admissible. First, robbery is a crime of moral turpitude (People v. Jackson (1985) 174 Cal.App.3d 260, 266); therefore, Williams’s robbery reflects a lack of honesty and integrity and was relevant to his credibility. Second, the robbery was not remote in time to the current offense. Spencer was murdered on August 18, 2005; just one week later, on August 25, Williams committed the robbery.
Third, the August 25 robbery was substantially similar to the current offense, in that Williams was charged in this case with robbery, among other things. Where, as here, the prior and current crimes are similar, the potential for prejudice is heightened, because the jury may believe that if the defendant committed an act on one occasion, then he probably did so on this occasion. (People v. Beagle (1972) 6 Cal.3d 441, 453.) Nonetheless, similarity of the offenses is just one factor a trial court considers in exercising its discretion (People v. Green (1995) 34 Cal.App.4th 165, 183), and cases have found that impeachment even with prior convictions identical to the charged offense is permissible. (See, e.g., ibid.; People v. Johnson (1991) 233 Cal.App.3d 425, 458-459 [no error in failing to sanitize prior murder conviction in current murder case]; People v. Muldrow (1988) 202 Cal.App.3d 636, 647 [defendant impeached with six prior convictions, three of which were identical to a charged offense; admission of any less than six prior convictions would give the defendant a “ ‘ “false aura of veracity” ’ ”].)
Superseded by statute as stated in People v. Castro, supra, 38 Cal.3d at pages 306-313.
Apparently in reference to the fourth Castro factor, Williams argues that the trial court’s refusal to sanitize his prior conviction by ordering it referred to simply as a felony of moral turpitude, forced him to elucidate the underlying facts of the robbery. True, the court did not sanitize the robbery by ordering it referred to generically as a felony of moral turpitude, but the court did sanitize it by prohibiting mention of the facts underlying it. Defense counsel, however, after asking his client if he had been convicted of a robbery, followed up the question by asking if the robbery involved the theft of four cans of beer from a convenience store. The prosecutor was then allowed to elicit that, in addition to taking the beer, Williams hit the store clerk when he confronted Williams. Williams argues that he had to get into the facts of the robbery, because he needed to distance it from the current offense. On that point, we note that although Williams was indeed charged with robbery of Spencer, the gravamen of the case was Spencer’s murder. Moreover, whether to sanitize a prior conviction is within the court’s discretion (People v. Sandoval (1992) 4 Cal.4th 155, 177-178), and it has been held that the admission of six prior convictions, three of which were identical the current charge, was not an abuse of discretion. We therefore do not agree that the admission of one prior conviction—albeit for the identical crime—exceeds the bounds of reason.
The jury was also instructed with CALCRIM No. 316: “If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
III. Williams’ constitutional right to confront witnesses and to due process were not violated by the exclusion of evidence of Justin Roddy’s prior arrest.
Under Evidence Code section 352, the trial court excluded evidence that the prosecution’s main witness, Justin Roddy, had a prior arrest for robbery. Williams contends that the court abused its discretion and denied him the right to confront and to cross-examine the witness. We disagree.
A. Additional facts.
The prosecution produced a rap sheet for Justin Roddy showing that he was arrested in January 2004, but he was never charged. Roddy claimed it was a case of mistaken identity, which the prosecutor said “appears to be consistent with the reports.” Based on the available documents, it appeared that there was an attempted robbery of a cell phone from another student. According to the victim, four people followed him out of school, and one person hit him. From a photograph in a school yearbook, the victim identified Roddy, who was detained. Roddy identified two accomplices, and juvenile petitions were filed regarding the two accomplices, but not as to Roddy. A Detective Guzman told the court that it did not appear that Roddy was prosecuted for the crime. The prosecutor asked Roddy about the incident, and he denied involvement, saying police had questioned him and he identified two people. Roddy said he received a letter saying he didn’t need to show up for court, that the case had been dismissed and that there was some sort of mistaken identity.
The trial court excluded evidence of Roddy’s arrest. It noted that even if there had been an actual adjudication on a juvenile petition, it is error to admit such an adjudication for purposes of impeachment. Also, under Evidence Code section 352, any probative value would be substantially outweighed by what would be a potential mini trial.
B. The trial court did not abuse its discretion by excluding evidence of Justin Roddy’s arrest.
Defendants contend that the exclusion of the above evidence violated their constitutional rights to a fair trial and to present a defense. (See, e.g., U.S. Const., 5th & 6th Amends.) We disagree.
“A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations].” (People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Although the United States Supreme Court, in Chambers v. Mississippi (1973) 410 U.S. 284, 302-303, “determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question ‘the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.’ [Citation.]” (Cornwell, at p. 82; see also People v. Ayala (2000) 23 Cal.4th 225, 301 [“we have repeatedly held that ‘not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.’ [Citation.]”].)
Evidence Code section 352 “ ‘ “empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” [Citation.]’ ” (People v. Harris (2008) 43 Cal.4th 1269, 1291.) We review the exclusion of evidence under Evidence Code section 352 for abuse of discretion. (People v. Holloway (2004) 33 Cal.4th 96, 134.) We will not disturb a trial court’s decision to exclude evidence under Evidence Code section 352 absent a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
We cannot say that the trial court’s decision to exclude Roddy’s juvenile arrest was an abuse of discretion. Although there is evidence that Roddy was arrested, there is no evidence that a juvenile petition was ever in fact filed or that there was an adjudication he committed a robbery. The absence of a petition makes the court’s assessment that admission of the evidence would result in a “mini trial” on point. Defendant’s response to this is, basically, it wouldn’t have been much of a mini trial; rather, it would have required a minimum of one to a maximum of four witnesses. It would have been a mini trial nonetheless, especially since it was not clear that Roddy had in fact committed a crime. It was certainly within the court’s purview to exclude the evidence on that ground, especially given information that although Roddy was named as a person involved in the robbery, only the two accomplices he named were prosecuted, and not him.
The trial court gave meticulous consideration to this issue over the course of several days, continuing it for the express purpose of allowing the parties to present more evidence regarding whether a petition was filed as to Roddy.
Defendants argue that the absence of this evidence greatly prejudiced him; its exclusion allowed the prosecution to portray Roddy as a church going boy who was unwillingly dragged into helping defendants simply because he went outside to retrieve his mother’s bible. There was, however, other evidence to contradict this view of Roddy. Specifically, Rosalie Johnson testified that Roddy went joyriding with defendants. Therefore, the jury did have competing views of Roddy before it.
The trial court found that juvenile court proceedings may not be used for impeachment purposes, and, indeed there is authority for this proposition. (See, e.g., People v. Gomez (1957) 152 Cal.App.2d 139, 143.) But in People v. Lee (1994) 28 Cal.App.4th 1724, 1740, the court found that, “at least in cases which do not fall under Welfare and Institutions Code section 1772, the prosecution may introduce prior conduct evincing moral turpitude even if such conduct was the subject of a juvenile adjudication, subject, of course, to the restrictions imposed under Evidence Code section 352 and other applicable evidentiary limitations.” We do not here resolve any issue regarding the admissibility of such an adjudication for impeachment purposes, because we find that, in any event, the court did not abuse its discretion in excluding the evidence.
We conclude that the trial court did not abuse its discretion in excluding evidence of Roddy’s prior juvenile arrest for robbery.
IV. There is insufficient evidence to support the verdict on count 4, witness dissuasion, as to defendant Williams.
After Keith and Williams shot Spencer, Roddy drove them away. Before leaving Roddy, Keith put a gun in Roddy’s mouth and told him he’d kill him if he told what had happened. Both defendants were charged, in count 4, with dissuading a witness. The jury found the count true as to both defendants and found true allegations that Keith used or threatened to use force or violence and that he personally used a firearm within the meaning of section 12022.5, subdivision (a). The jury found not true that Williams used or threatened to use force or violence in connection with the count. Williams contends that there is insufficient evidence to sustain the jury’s verdict against him as to this crime. We agree.
Under the substantial evidence standard of review, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘ “[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” ’ [Citation.] ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” ’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
Section 136.1, subdivision (b), provides in relevant part: “[E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶]... [¶] (c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.”
The jury was instructed with CALCRIM Nos. 2622 and 2623, regarding intimidating a witness: “The defendants are charged in Count 4 with intimidating a witness. [¶] To prove that the defendants are guilty of this crime, the People must prove that: [¶] 1. The defendants maliciously tried to prevent or discourage Justin Roddy from making a report that someone else was a victim of a crime to Law enforcement; [¶] 2. Justin Roddy was a witness; [¶] and [¶] 3. The defendants knew they were trying to prevent or discourage Justin Roddy from reporting victimization and intended to do so. [¶] A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice. [¶] As used here, witness means someone or a person the defendant reasonably believed to be someone: [¶] Who knows about the existence or nonexistence of facts relating to a crime.... [¶] It is not a defense that no one was actually physically injured or otherwise intimidated.” (CALCRIM No. 2622.)
If Williams was guilty of intimidating or dissuading a witness, it was as an aider and abettor, given that Roddy testified Keith put the gun in his mouth and told him not to tell anyone about the night’s events. Moreover, although the jury found Williams guilty of the crime, it found not true the allegation that he used force or a threat. There are two types of aider and abettor liability: (1) An aider and abettor with the necessary mental state is guilty of the intended crime; and (2) an aider and abettor is guilty not only of the intended crime, but of any other offense that was a natural and probable consequence of the crime aided and abetted. (People v. McCoy (2001) 25 Cal.4th 1111; see also § 31.) The jury here was instructed on only the first type of aider and abettor liability via CALCRIM Nos. 400 and 401.
“A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” (CALCRIM No. 400.)
In general, neither presence at the scene of the crime nor knowledge of, but failure to prevent commission of the crime, is sufficient to establish liability as an aider and abettor. (See People v. Durham (1969) 70 Cal.2d 171, 181; In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.) “ ‘ “All persons concerned in the commission of a crime,... whether they directly commit the act constituting the offense, or aid and abet in its commission,... are principals in any crime so committed.” [Citation.] Accordingly, an aider and abettor “shares the guilt of the actual perpetrator.” [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged.... An aider and abettor, on the other hand, must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.]’ ” (People v. Leon (2008) 161 Cal.App.4th 149, 157-158 (Leon).)
In Leon, Martin and Angel returned home early one morning to find two men, Leon and Rodriguez, “ ‘messing’ ” with their truck. (Leon, supra, 161 Cal.App.4th at p. 153.) Martin yelled at the men to leave; he was calling the police. Rodriguez looked at Martin and Angel and fired a gun in the air. (Id. at p. 154.) Rodriguez and Leon were charged with, among others, attempting to dissuade a witness from reporting a crime, and the jury found them guilty of that crime. The People’s sole theory of Leon’s guilt on that count was he aided and abetted Rodriguez’s commission of the crime. (Id. at p. 156 & fn. 2.)
On appeal, Leon argued that there was insufficient evidence to find him guilty of witness intimidation on an aiding and abetting theory of liability under the natural and probable consequences doctrine. The People argued that because Leon and Rodriguez were members of the same gang, they were burglarizing cars in a rival gang’s territory, and Leon had ammunition and a firearm on him that this evidence, in combination with Leon “ ‘staring at the person who said he was going to call the police and walking with Rodriguez while Rodriguez shot a gun in the air, encouraged and/or facilitated Rodriquez in his commission of this offense.’ ” (Leon, supra, 161 Cal.App.4th at p. 159.) Noting that there was no evidence that Leon stared at a witness, the court concluded none of the other evidence was sufficient to support a finding that Leon “ ‘by act or advice, aid[ed], promote[d], encourage[d] or instigate[d] the commission’ of witness intimidation.” (Ibid.) The court also rejected the notion that Leon aided and abetted a crime the natural and probable consequence of which was witness intimidation. Finding no close connection between the target crimes and the witness intimidation, the court reversed the guilty verdict against Leon on the witness intimidation charge.
The target crimes were burglary, possession of a concealed firearm by an active gang member and carrying a loaded weapon by an active gang member.
If there was insufficient evidence in Leon to find the defendant guilty of witness intimidation under a natural and probable consequences doctrine, it is unlikely he could have been found guilty based on directly assisting Rodriguez to commit witness intimidation. Likewise, in this case, the jury was not even instructed on the natural and probable consequences doctrine. Therefore there must be some evidence—other than Williams’s presence at the scene of the crime—sufficient to establish his liability as an aider and abettor. We cannot find any such evidence. Keith put the gun in Roddy’s mouth and warned him not to tell anyone about what had happened. There is no evidence that Williams said anything to encourage such conduct or helped Keith to threaten Roddy. There is simply no evidence of what Williams was doing during this time.
The People, however, essentially argue that because Williams and Keith acted in concert all night, they continued to do so even when Keith intimidated Roddy. It is true that “[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) Here, that Williams was an active participant in the events, including Spencer’s murder, leading up to Keith’s threat to Roddy, might mitigate in favor of Williams’s liability as an aider and abettor, however, we might be more comfortable with that conclusion if the jury here had been instructed on the natural and probable consequences doctrine as a basis for aider and abettor liability. They were not so instructed. Other than Williams’s participation in the events leading up to the intimidation, there is no evidence, other than his mere presence, that he by act or advice, aided, promoted, encouraged, or instigated the commission of witness intimidation. There is no evidence, for example, that he too pointed his gun at Roddy, that he also told Roddy not to tell what happened or engaged in any other conduct that aided and abetted intimidation of the witness. We therefore conclude that there is insufficient evidence to support the guilty verdict on count 4 for witness intimidation as to Williams.
Reversal of the guilty verdict on count 4 renders moot Williams’s request to correct the abstract of judgment to reflect that the jury found the force or violence allegation not true as to that count and his contention that the trial court abused its discretion by imposing the sentence on count 4 consecutively.
V. Cumulative error.
Williams contends that the cumulative effect of the purported errors undermined the fundamental fairness of the trial. As we have “ ‘either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial[,] [w]e reach the same conclusion with respect to the cumulative effect of any [purported] errors.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
VI. Upper term and consecutive sentences.
Both defendants challenge, under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham), their upper term sentences on count 3 and the consecutive sentences imposed on counts 3 and 4. Both defendants were sentenced to the upper term of eight years on count 3, kidnapping. As to Williams, the trial court imposed the high term because “multiple victims were involved, it involved a crime of great violence that took place over separate times and places” and there were no mitigating circumstances. As to Keith, the court found that the crime “involved great violence,” and there were no mitigating factors.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (See also, Washington v. Recuenco (2006) 548 U.S. 212, 216.) “In Blakely, the high court extended the rule established in Apprendi to the State of Washington’s determinate sentencing law, under which a sentence within the ‘ “standard range” ’ must be imposed unless the trial court finds aggravating factors that justify an ‘ “exceptional sentence.” ’ [Citation.]... [¶]... [¶] The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 835-837, citing among others, Blakely, supra, 542 U.S. at pp. 299, 301, 303 and Apprendi, supra, at p. 490.)
In Blakely, the United States Supreme Court clarified that the “ ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he [or she] may impose without any additional findings.” (Blakely, supra, 542 U.S. at pp. 303-304.) In Cunningham, supra, 549 U.S. 270, the United States Supreme Court held that the version of California’s determinate sentencing law (DSL) then in effect violated “a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence.” (People v. Black (2007) 41 Cal.4th 799, 805; People v. Sandoval, supra, 41 Cal.4th at pp. 831-832.)
In the wake of Cunningham, “[t]he California Legislature quickly responded” by amending the law to rectify the constitutional defects Cunningham identified. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) “Senate Bill No. 40 (2007-2008 Reg. Sess.) (Senate Bill 40) amended [Penal Code] section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. [Citations.] Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....’ (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.)” (People v. Wilson, supra, at p. 992.)
Because the amended version of the statute was in effect when defendants were sentenced on February 6 and 13, 2008, imposition of the upper term on count three was constitutionally sound. The trial court stated its reasons for imposition of the upper term, as described above. Accordingly, “[t]he trial court’s sentencing of defendant[s] in compliance with the requirements of [the current version of Penal Code] section 1170, subdivision (b), did not violate [their] federal constitutional rights....” (People v. Wilson, supra, 164 Cal.App.4th at p. 992.)
As to consecutive sentences, our California Supreme Court in People v. Black, supra, 41 Cal.4th at page 823, had this to say: “ ‘The high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[ ] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.] Accordingly, we... conclude that [a] defendant’s constitutional right to jury trial [is] not violated by the trial court’s imposition of consecutive sentences....” Thereafter, the United States Supreme Court similarly found that consecutive sentences do not violate a defendant’s Sixth Amendment right to a jury trial. (Oregon v. Ice (2009) 555 U.S. __ [129 S.Ct. 711, 172 L.Ed.2d 517].)
DISPOSITION
The judgment is reversed as to count 4 as to defendant and appellant Reno Williams only. The clerk of the superior court is directed to forward an amended copy of the abstract of judgment to the Department of Corrections. The judgment is otherwise affirmed as to both defendants.
We concur: KLEIN, P. J., CROSKEY, J.
“If you find the defendants guilty of intimidating a witness, you must then decide whether the People have proved the additional allegation that the defendants used... force or threatened, either directly or indirectly, to use force or violence on the person or property of a witness. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.” (CALCRIM No. 2623.)
“To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] and [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.” (CALCRIM No. 401.)