Opinion
B221571
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANKLIN LOPEZ, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA349714)
APPEAL from a judgment of the Superior Court of Los Angeles County. William N. Sterling, Judge. Affirmed with directions.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant and defendant Franklin Lopez (defendant) appeals from a final judgment entered after a jury convicted him of attempted willful, deliberate and premeditated murder (Penal Code, §§ 664 & 187, subd. (a)). We affirm the judgment, but remand to the trial court for issuance of an amended abstract of judgment reflecting the correct number of local conduct credits.
All further statutory references are to the Penal Code, unless otherwise indicated.
CONTENTIONS
Defendant contends that the trial court committed reversible error by failing to instruct the jury on accomplice testimony as to two prosecution witnesses.
Defendant further contends that this matter should be remanded to the superior court with instructions to prepare an amended abstract of judgment listing 52 days of local conduct credit, rather than the 50 days defendant was given.
PROCEDURAL HISTORY
Defendant was charged by information with attempted murder (§§ 664 & 187, subd. (a); count 1), and assault with a semiautomatic firearm (§ 245, subd. (b); count 2). As to count 1, it was alleged that defendant personally inflicted great bodily harm within the meaning of section 12022.7, subdivision (a), and that defendant personally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e). As to count 2, it was alleged that defendant personally used a semiautomatic handgun within the meaning of section 12022.5, subdivision (a). As to both counts, it was alleged that the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). Defendant pleaded not guilty and denied the allegations.
Count 2 was later dismissed.
On October 2, 2009, a jury convicted defendant of attempted murder and found all related allegations to be true.
Thereafter, the court sentenced defendant to state prison for a life term, plus a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d). The court imposed a $5,000 restitution fine pursuant to section 1202.4, subdivision (b), a $5,000 parole revocation fine pursuant to section 1202.45, a $30 court security fee pursuant to section 1465.8, and a $30 criminal conviction assessment fee pursuant to Government Code section 70373.
Defendant received credit for 347 days of actual custody, plus 50 days of conduct credit, for a total of 397 days of credit.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
1. The shooting
At approximately 5:00 p.m. on the afternoon of November 29, 2008, Jerry Pupo (Pupo) was at his friend Sergio's house on Hobart Street, helping Sergio paint the stairs. Pupo saw a blue Honda driving by at five to ten miles per hour. The car's back windows were tinted, but Pupo saw "two guys" in the front seat.
The parties stipulated that on November 29, 2008, sunset in Los Angeles was at 4:44 p.m. Pupo testified however that there was still some daylight at the time he saw the blue car.
About a half hour later, as Pupo walked back from a local store, he noticed that there was a car behind him. Pupo turned to look and saw that it was the same blue Honda. The car pulled up and a man, identified as defendant, got out of the right rear passenger door.
From a distance of about four feet away, defendant asked Pupo where he was from. Pupo replied that he was not from anywhere. Defendant told Pupo to lift up his shirt, and then said "Mara Salvatrucha." Defendant then pulled out a black handgun and chambered a round. Pupo immediately fled. As he was running away, Pupo heard five or six shots fired in rapid succession and defendant saying "Mara Salvatrucha." Pupo turned a corner and ran into a parking lot, where he saw some people he knew. They searched him to see if he had been shot. He discovered that a bullet had entered the bottom of his foot and exited the top.
A Los Angeles Police Department gang expert testified that Mara Salvatrucha is a violent criminal street gang which originated in El Salvador. Defendant is an admitted member of the Mara Salvatrucha gang.
Pupo spoke to the police later the same day. He informed the police that the defendant's age was approximately 30 to 35 years old.
2. Defendant's arrest and identification
At about 5:30 in the afternoon on November 29, 2008, Los Angeles Police Department (LAPD) Officer Jeff Castillo noticed a blue vehicle traveling at a pretty high rate of speed about two blocks from the crime scene. Officer Castillo made eye contact with the driver, who looked nervous and was not wearing a seatbelt. There were several male Hispanics in the vehicle. Officer Castillo made a U-turn to follow the car. His partner noticed several men looking back at the patrol car. Within five minutes, the car pulled into a driveway and three men quickly got out of the car, leaving one man in the back seat and a female in the front passenger seat.
Officer Castillo watched as the driver knocked on the front door of the house. A rear passenger, identified as defendant, attempted to go through a gate on the side of the house, but it was locked. The rear middle passenger got out and went to the car's front bumper area, crouched over, and appeared to reach into his waistband. Officer Castillo then heard the sound of something dropping. Using his flashlight, Officer Castillo checked near the fence running along the driveway and discovered an empty eight-round handgun magazine and one .45-caliber hollow-tip bullet. Officer Castillo's partner checked under the front of the blue Honda and found a .45-caliber semiautomatic handgun with one hollow-tip bullet in the chamber, ready to fire. Both bullets were head-stamped "R-P .45 auto." The officers detained and handcuffed defendant and the two other individuals who fled the car.
Officer Castillo placed the handgun they had found on top of the car. He asked Officer Chad Reuser, a LAPD air support tactical flight officer, to use his helicopter's forward looking infrared (FLIR) system to determine if the handgun was giving off heat consistent with a gun that had recently been fired. Officer Reuser used the FLIR system and determined that the gun was still generating a lot of heat, consistent with it having recently been fired five to six times.
Another officer recovered six .45-caliber bullet casings from the scene of the shooting on Hobart Street, all head-stamped "R-P .45 auto."
Pupo was brought by ambulance to the scene where defendant and others had been detained. Pupo asked the officers several times, "Can they see me?" He was afraid for his life and his family's safety. Pupo did not identify defendant as the shooter at that time.
Two days later, a police detective came to Pupo's residence and showed him three different "six-pack" photo lineups. On the second photo lineup, Pupo circled and initialed defendant's photograph. At trial, Pupo also identified defendant as the person who shot him.
3. Trial testimony of the passengers in the blue Honda
Jackelin Aragon
On November 29, 2008, at around 2:00 p.m., Jackelin Aragon (Aragon) had lunch with her boyfriend, Eduardo Feliciano (Feliciano). Later that afternoon, they ran errands in his blue Honda. Around 5:00 p.m., they picked up three men: defendant, Mauricio Aguirre (Aguirre), and Felix Miguel Juarez (Juarez). Feliciano said they were going to a party in the Valley. Aragon did not know defendant. Defendant sat behind her in the car and Juarez sat behind Feliciano.
Aragon testified that they first saw the victim walking on the street. Defendant told Feliciano to stop the car. Defendant got out and walked behind a white van parked on the street, which partially blocked her view of the victim. Aragon saw defendant extend both hands in front of his chest and fire four or more shots. She bent down out of fear when the shooting started so she did not see where the victim went. Defendant got back in the car and put his hand in his waistband. Feliciano then drove away.
Ten minutes after they drove away from the scene of the shooting, they pulled into a driveway and the police pulled in after them. Feliciano, defendant, and Juarez fled from the car and were arrested. Aragon and Aguirre remained in the car. She did not see defendant remove anything from his person as he left the car or drop the gun as he got out.
Mauricio Aguirre
Aguirre testified he met defendant and Juarez approximately one week before the shooting. On the afternoon of November 29, 2008, at about 5:00 p.m., Aguirre was at the corner of Santa Monica Boulevard and Western Avenue when a car stopped and defendant and Juarez asked him if he wanted to go to a party. The driver and his girlfriend, neither of whom Aguirre knew, were in the front seats; Aguirre sat in back with defendant and Juarez.
After driving for 10 to 15 minutes, they saw a man walking in the opposite direction, so the driver turned the car around. The driver told defendant to get out and ask the man what "hood" he was from. Defendant got out, walked about 18 feet towards the man, and from a distance of three or four feet, asked the man where he was from. The man said "nowhere." Defendant told the man to pull up his shirt. Defendant then pulled out a gun. The man ran away and defendant fired five shots, one right after the other, while holding his hands at chest height. Aguirre did not hear defendant say anything as he fired.
Defendant got back in the car. The driver told defendant to reload the gun, so if the man came out again defendant could shoot him. Then they drove away. Five to six minutes later they passed a police car, which followed them to a house. The four others got out, but Aguirre stayed in the car. Defendant put the gun under the car and attempted to escape, but the police arrested him.
DISCUSSION
I. Failure to instruct on accomplice testimony
Defendant argues that the court should have instructed, pursuant to CALCRIM No. 334, that the jury must determine whether Aragon and Aguirre were accomplices and, if so, that the jury must view with caution the testimony of these two witnesses.
The court's failure to instruct the jury regarding accomplice testimony is reviewed for prejudicial error. Under this standard, "[t]he question for an appellate court to determine is whether, considering the entire record, the error prejudiced the defendant's rights. [Citations.]" (People v. Cooper (1970) 10 Cal.App.3d 96, 103.)
A. Relevant law
Section 1111 provides: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
In order to be chargeable with the identical offense, the witness must be a principal in the crime as described in section 31. (People v. Fauber (1992) 2 Cal.4th 792, 833.) Section 31 defines principals to include "[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . ."
A mere accessory is not liable to prosecution for the identical offense, and therefore is not an accomplice. (People v. Horton (1995) 11 Cal.4th 1068, 1114; People v. Fauber, supra, 2 Cal.4th at pp. 833-834.)
It is defendant's burden to establish by a preponderance of the evidence that an individual was an accomplice. (People v. Snyder (2003) 112 Cal.App.4th 1200, 1217.) If there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony. (People v. Williams (1997) 16 Cal.4th 153, 247.) Whether a witness is an accomplice is a jury question unless there is no dispute as to the facts or the inferences to be drawn from the facts. (People v. Anderson (1987) 43 Cal.3d 1104, 1138.)
B. Forfeiture
The trial court must instruct the jury sua sponte to determine whether a witness was an accomplice in the charged offense if "'"the testimony given upon the trial is sufficient to warrant the conclusion upon the part of the jury that a witness implicating a defendant was an accomplice."'" (People v. Snyder, supra, 112 Cal.App.4th at p. 1218.) It was defendant's burden to establish by a preponderance of the evidence that Aragon, Aguirre, or both individuals acted as an accomplice. (Id. at p. 1219.)
Defendant failed to present any evidence or argument at trial that Aragon or Aguirre should be considered an accomplice. Moreover, defendant failed to request any accomplice instructions at trial. "[Defendant's] failure to request the subject instruction[] . . . constitutes a waiver of this issue unless the trial evidence and testimony was sufficient either to create a triable issue of fact" as to whether Aragon and Aguirre were accomplices "or else established that [they] were . . . accomplice[s] as a matter of law." (People v. Snyder, supra, 112 Cal.App.4th at p. 1219, original italics.)
Defendant did not meet his burden of proving that Aragon and Aguirre could be considered accomplices. Defendant presented no evidence that Aragon or Aguirre directly committed the offense, aided or abetted the offense, or advised or encouraged its commission. (§ 31.) There was no evidence that either Aragon or Aguirre was a gang member. Aragon had never met defendant before, and Aguirre had only known him for a week. There was no evidence that Aragon or Aguirre had any advanced knowledge that there was going to be a shooting, or even that defendant was carrying a gun. There was no evidence that they encouraged or tried to assist defendant in any way. The record does not support a conclusion that either Aragon or Aguirre could have been an accomplice to the crime.
Presence at the scene or failure to prevent a crime is insufficient to demonstrate guilt as an aider and abettor. (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.)
Defendant failed to present evidence sufficient to establish the preconditions giving rise to the court's sua sponte duty to instruct on accomplice testimony, and defendant failed to specifically request an accomplice instruction. Under these circumstances, defendant has forfeited this argument on appeal. (People v. Snyder, supra, 112 Cal.App.4th at pp. 1219-1220.)
C. Any error was harmless
Failure to give accomplice instructions is not prejudicial where there is sufficient corroborating evidence which connects the defendant to the charged offense independently of the witness's testimony. (People v. Frye (1998) 18 Cal.4th 894, 965966, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The corroborating evidence need not be sufficient by itself to establish the defendant's guilt. It also need not corroborate every fact to which the accomplice testified. In fact, it may be circumstantial, and entitled to little consideration when standing alone. (People v. Frye, supra, at p. 966; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1177-1178.) "'"Corroborating evidence is sufficient if it substantiates enough of the accomplice's testimony to establish his credibility [citation omitted]."' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.)
Sufficient corroborating evidence exists in this case. The victim survived the shooting and positively identified defendant both in a photographic lineup and in court. Like Aragon and Aguirre, he testified that defendant was the only individual who exited the car, and that numerous shots were fired in succession. This was sufficient evidence to corroborate the testimony of Aragon and Aguirre, rendering harmless any error on the part of the trial court in failing to instruct on accomplice testimony.
Defendant argues that prejudice resulted from the trial court's failure to give the accomplice instruction. He points out disparities between Pupo's testimony and the testimony of Aragon and Aguirre. First, defendant argues, Pupo's identification of defendant as the shooter was inconsistent. When Pupo first arrived for an in-field identification of the shooter, he was unable to identify defendant as the perpetrator. In addition, Pupo first described defendant to the police as an individual that was 30 to 35 years old. Moreover, when Pupo first saw the blue Honda and looked into the car, he believed he saw two males sitting in the front seats and Aragon, who testified that she was sitting in the front passenger seat, is female. In addition, Pupo testified that the blue Honda had driven by once prior to the time defendant got out and shot him, while neither Aragon nor Aguirre testified that they passed the victim then later returned at the time when the shooting took place. Based on these inconsistencies, defendant submits that there was insufficient corroborating evidence connecting defendant to the shooting independent of the testimony of Aguirre and Aragon.
Defendant was 20 years old at the time of the shooting.
We disagree. The similarity between the evidence presented by Pupo, and the evidence presented by Aragon and Aguirre, substantiates the latter witnesses' testimony enough to establish their credibility. While it is true that Pupo initially declined to identify defendant as his shooter, Pupo later explained that this was because he was afraid that defendant could see him and that he feared for himself and his family. Pupo subsequently identified defendant as the perpetrator, both in a photographic lineup and in court. The other slight inconsistencies in Pupo's version of the events are not significant enough to put the testimony of Aragon and Aguirre into question.
In sum, even if the trial court had erred in failing to give an instruction on accomplice testimony, any such error was harmless.
D. The jury was given appropriate guidelines for evaluating witness testimony
Defendant argues that Aragon had a motive for implicating defendant: a desire to protect her boyfriend, Feliciano. Defendant points out that while Aguirre testified that Feliciano stopped the car and told defendant to get out and ask Pupo where he was from, Aragon testified that it was defendant who told Feliciano to stop the car. Under these circumstances, defendant argues, the trial court should have instructed the jury to consider whether Aragon and Aguirre were accomplices and, if it so found, view their testimony with caution.
Feliciano was an acknowledged member of Mara Salvatrucha.
Aragon's possible loyalty to Feliciano is irrelevant to the analysis of whether she and Aguirre could have been considered accomplices. Aragon's relationship with Feliciano alone does not qualify her to be charged as a principal in the crime as described in section 31.
In addition, we note that the trial court gave the jury appropriate guidelines for evaluating the testimony of each witness. These instructions included assessing whether the witness was influenced by any of the following: bias or prejudice, a personal relationship with someone involved in the case, a personal interest in how the case is decided, prior consistent or inconsistent statements, the witness's attitude towards testifying, the reasonableness of the testimony when considered with other evidence, and whether the witness engaged in conduct that reflects on his or her credibility. Thus, the jury was instructed that it could consider Aragon's admitted personal relationship with Feliciano when evaluating her testimony.
The relationship between Aragon and Feliciano was not sufficient grounds to trigger the trial court's obligation to give a sua sponte instruction on accomplice testimony. The jury was adequately instructed on evaluating her testimony.
II. Defendant's presentence custody credits
Defendant argues, and respondent agrees, that he is entitled to two additional days of conduct credits.
The record reflects that defendant had been in local custody for 347 actual days. Because defendant's crime is considered violent, he was subject to the 15 percent credit limitation of section 2933.1. (See § 2933.1, subds. (a) & (c); § 667.5, subd. (c)(12).) Defendant erroneously received 50 days of conduct credit. Fifteen percent of 347 days, rounded down to the nearest whole number, is 52 days local conduct credit, not 50 days.
We therefore order the trial court to prepare an amended abstract of judgment to properly reflect a total of 52 days of local conduct credit.
DISPOSITION
The judgment is affirmed. The trial court shall issue an amended abstract of judgment listing 52 days of local conduct credit, for a total of 399 days of presentence credit, and furnish a copy to all appropriate authorities.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
CHAVEZ, J. We concur: BOREN, P. J. DOI TODD J.