Opinion
C078301
07-13-2018
THE PEOPLE, Plaintiff and Respondent, v. PATRICIA MACCALLUM, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCYKCRF12-2246)
A jury found defendant Patricia MacCallum guilty of the first degree murder of her husband Chris MacCallum (Pen. Code, § 187, subd. (a)), assault with a semiautomatic firearm (§ 245, subd. (b)), and infliction of corporal injury to a spouse (§ 273.5, subd. (a)). The jury also found true allegations MacCallum personally used and discharged a firearm causing great bodily injury in the commission of the murder (§ 12022.53, subds. (b) & (d)) and caused great bodily injury in the commission of the assault and infliction of corporal injury (§ 12022.7, subd. (a)).
To avoid confusion, we refer to Chris MacCallum by his first name. We intend no disrespect.
Further undesignated statutory references are to the Penal Code.
Sentenced to 50 years to life in state prison, MacCallum appeals. She contends the trial court prejudicially erred in (1) failing to instruct the jury on the limits of accomplice testimony, while misinstructing the jury that a single witness can prove any fact, and (2) failing to instruct the jury that it must view her unrecorded out-of-court statements tending to show her guilt with caution. She also asserts that the abstract of judgment must be amended to reflect that her sentence on the section 12022.53, subdivision (b) (not § 12022.53, subd. (d)) was stayed. Finally, in supplemental briefing, MacCallum requests this court remand the matter to the trial court to allow the court to exercise its new discretion under section 12022.53, subdivision (h), and determine whether either of the firearm enhancements should be stricken.
MacCallum's sentence consists of 25 years to life for the murder, plus a consecutive 25 years to life for the section 12022.53, subdivision (d) enhancement. The trial court also imposed then stayed a 10-year term for the section 12022.53, subdivision (b) enhancement. As for the assault and infliction of corporal injury convictions, the trial court imposed the upper term of nine years for the assault, three years for the great bodily injury enhancement appended to that count, the upper term of four years for the infliction of corporal injury conviction, and three years for the great bodily injury enhancement appended to that count, then stayed those sentences pursuant to section 654.
We shall conclude that any error in instructing the jury was harmless and affirm the judgment. In addition, we shall remand the matter to the trial court to exercise its discretion under section 12022.53, subdivision (h) in the first instance. Finally, should the trial court decline to exercise its discretion to strike or dismiss the enhancements, we shall direct the trial court to correct the abstract of judgment to reflect that MacCallum's sentence on the section 12022.53, subdivision (b) enhancement (and not the § 12022.53, subd. (d) enhancement) was stayed.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2012, MacCallum lived in Medford, Oregon with her husband Chris and two children. The two had separated for a time but had resumed living together in September of that year.
Unless otherwise indicated, all events referred to herein occurred in 2012.
On November 19, Deputy Sheriff James Biddle responded to a missing person report made by MacCallum regarding her husband, Chris. MacCallum told Biddle that she had not seen Chris since November 16, when she left him at a campsite at Applegate Lake, across the California border. She stated that she and Chris had gone camping for Chris's birthday, but she decided to return home early because it was cold and she did not feel well. Chris wanted to stay, so the plan was for MacCallum to pick him up the next day. MacCallum left Chris at the campsite with a tent, a sleeping bag, food, water, his wallet, his cell phone, her .40-caliber handgun, and two full magazines of ammunition. When she returned to the campsite around 10:00 a.m. the next day, everything was packed up and Chris was gone.
Later that day MacCallum informed Biddle that her toddler had found Chris's cell phone and wallet in the center console of MacCallum's car.
Deputy Biddle contacted Chris's two employers, and neither had heard from him. He also contacted friends and family members and sent out an "all-points bulletin" seeking information about Chris's whereabouts. Biddle learned through a number of sources that Chris had a practice of disappearing when he got frustrated and needed a break. That evening Deputy Jason Denton went to the campsite area, but it was dark, and he was unable to find Chris.
The following morning, November 20, MacCallum provided officers with detailed directions to the campsite and indicated for the first time that her friend Amber Lubbers had accompanied her and Chris on the camping trip. Deputy Denton returned to the campsite that day with another officer. As one of the officers approached the campsite, he saw a tent rolled up on itself hanging over the edge of a steep embankment. Something heavy appeared to be weighing down the tent's bottom edge. What was later determined to be Chris's body was found inside the tent, along with some clothes, camping gear, tent poles, and spent shell casings. Metal tent stakes were strewn about the campsite, and a tent pole and some tent stakes were in the fire pit.
That evening, officers interviewed MacCallum at her home. She explained that she, Lubbers, and Chris had gone camping. She knew Lubbers because Lubbers's mother and MacCallum's father had been married for approximately 20 years. The two were "[v]ery close." On November 16, she and Chris ran a few errands, picked up Lubbers, and stopped at the Ruch Market on the way to the campsite. MacCallum brought a bottle of alcohol for each person. They arrived at the campsite around 2:00 p.m., set up camp, and walked to a nearby waterfall. When they returned to the campsite, they ate sandwiches, drank alcohol, and went inside the tent to get warm. Later that evening, MacCallum and Lubbers decided to leave because it was cold. MacCallum left her handgun and at least one of the magazine clips with Chris when she left. She and Lubbers stopped at Jack in the Box on their way home to get something to eat. When they returned to the campsite at dawn the next morning, there was nothing there. When asked about the fire pit, MacCallum said she recalled looking at it but did mention seeing any tent poles or stakes at the campsite or in the fire pit. When asked why she told Biddle that she and Lubbers did not leave Medford until 10:00 a.m. that morning, MacCallum said she did not have a clock next to her bed and was estimating the time. She also did not remember stating another time. When executing a search warrant at MacCallum's home a few days later, an officer saw a working alarm clock on the floor next to MacCallum's bed. MacCallum provided officers with an empty gun case box, a loaded magazine, and a sample box of ammunition for the gun she said she left with Chris.
The next morning, November 21, officers informed MacCallum that the tent had been found near the campsite, and they believed there was a body inside. MacCallum responded that it could not be Chris because he knew self-defense.
That evening officers notified MacCallum that it was Chris's body inside the tent, he had died a violent death, and they thought she and Lubbers likely were involved. MacCallum appeared detached and not too surprised. One of the officers mentioned a gun or some other instrument but did not provide MacCallum with any specific information about how Chris died. MacCallum asked whether he had been attacked by an animal and said that she had told Lubbers that Chris could have been attacked by an animal that rolled up inside the tent with him. One of the officers who interviewed MacCallum testified that he had not told her that Chris's body had been rolled up inside the tent, but he could not rule out the possibility that the information may have been available to her from other sources.
Officers asked MacCallum about her relationship with Chris. She stated that Chris had moved back into her home on September 7. They were working on their relationship and doing what was necessary to make it work. She said they had arguments, but there had never been any violence. She dated other people while they were separated, including Jeremiah Hills. Chris disliked Hills and got into an argument with him before he moved back in with MacCallum. MacCallum had no physical contact with Hills after Chris moved back in, and Hills did not know they were going camping.
Hills testified that he met MacCallum in June when she was separated from Chris. They became involved in a sexual relationship. About six weeks before Chris moved back in with MacCallum, Hills overheard an argument between MacCallum and Chris. After Chris left, MacCallum told Hills that "things would be better off without [Chris] around." When asked if MacCallum had used those exact words, Hills said that he "believe[d] she said dead." During that same conversation, MacCallum told Hills that he probably knew people who could get rid of Chris. Hills never asked anybody to kill Chris on behalf of MacCallum. At some point MacCallum mentioned to Hills that Chris had a life insurance policy. Hills never mentioned this to law enforcement officers interviewing him before legal proceedings began because he forgot about it. MacCallum told Hills that Chris was trying to force his way back into her life by threatening to stop paying child support so she would lose her housing. She said she let Chris move back in because she needed help paying rent and wanted to return to school. Hills was at work from 5:00 p.m. to 10:30 p.m. on November 16 and did not own a car.
At trial, Lubbers testified that she had known MacCallum since childhood, and they were like sisters. After MacCallum left the army, she and her children moved back to Medford, lived with MacCallum's mother, and received government assistance. MacCallum told Lubbers that she and Chris were separated, and she wanted to stay separated, but Chris had followed her to Medford because he wanted to make things work. MacCallum was frustrated and angered by the situation. At the beginning of September, MacCallum moved out of her mother's house and into her own place in Medford. MacCallum told Lubbers that she paid the rent with government assistance and money from Chris. According to Lubbers, Chris was in love with MacCallum and treated her well. He worked two jobs to support MacCallum and the kids, gave MacCallum money when she wanted it, and would "do anything" to make MacCallum happy. Chris moved in with MacCallum in September. MacCallum did not want Chris to move back in and told Lubbers that she had made a deal with the devil.
In September, MacCallum told Lubbers that she wanted Chris dead. MacCallum continued to discuss this with Lubbers, telling Lubbers that she wanted to make it look like an accident. She asked Lubbers if she knew of a good spot, and Lubbers mentioned a campsite in Applegate. A couple of weeks later, Lubbers and MacCallum went to check it out. They walked around the campsite, and MacCallum saw a rocky area on the other side of the creek that she said would be a good place for an accident. MacCallum's plan was to get Chris drunk, point to something, have Chris lean over, and fall onto the rocks.
A week later, Lubbers and her ex-husband's cousin Kris Lubbers went to the campsite and set up camp. The plan was for MacCallum and Chris to arrive later that night and for Kris to leave once they arrived. MacCallum would then kill Chris. When MacCallum and Chris did not show up, Lubbers and Kris packed up and left. MacCallum later informed Lubbers that she and Chris did not show up because she could not find a sitter for her kids. Kris was not part of the plan to kill Chris.
To avoid confusion, we shall refer to Kris Lubbers by his first name. No disrespect is intended.
A few days before Chris was killed, MacCallum told Lubbers of a new plan. MacCallum would have Chris tie a rope around himself ostensibly to help MacCallum cross the river above the waterfall. MacCallum would then pull on the rope and cause Chris to fall into the waterfall. MacCallum mentioned that Chris had life insurance, and she hoped that if Chris's death looked like an accident she and her children would be taken care of.
On November 16, MacCallum and Chris picked up Lubbers about 12:30 p.m. in MacCallum's car. They stopped to buy a few things and arrived at the campsite around 2:30 p.m. They put up the tent, started drinking, and looked for firewood. Lubbers and MacCallum drank watered-down alcohol, and Chris drank a lot of alcohol. They went down by the river, tied a cord to a tree, and Chris crossed the river with the cord tied around him. When Chris was coming back across the river, MacCallum held onto the cord, and Chris yelled at her to let go. Lubbers also had a hold of the cord, but she let go and backed up. MacCallum again grabbed the cord and began pulling. Chris fell but jumped back up, told MacCallum to let go, and finished crossing. It started raining, so they went inside the tent and made sandwiches for dinner. Lubbers and MacCallum were on cots, and Chris was in his sleeping bag on some blue sleeping pads. He was wearing a T-shirt and boxers when he went to bed. He fell asleep around 6:30 or 7:00 p.m. Lubbers and MacCallum communicated by texting on Lubbers's phone. One would enter a text, pass the phone to the other who would delete the prior text, and enter her own text. MacCallum was trying to come up with ideas of how to kill Chris, and Lubbers was trying to stop it. Eventually, they went to the car to talk. Lubbers told MacCallum she could not and would not "do it," and MacCallum responded, "He is not going home with me and I am going to shoot him."
During her interview with Detective Marc Perrin on December 7, Lubbers said, "we pulled." --------
Lubbers and MacCallum then took everything Chris was not using out of the tent, and put the items in the car. MacCallum then got her gun out of the trunk, went to the outside of the tent, and shot through the doorway into the tent. Lubbers watched as MacCallum emptied the magazine. MacCallum returned to the car and asked Lubbers for the second clip. Lubbers gave her the clip, thinking MacCallum was going to get rid of it. Instead, MacCallum loaded the gun, went inside the tent, and Lubbers heard more gunshots.
MacCallum returned to the car and said she needed help. Lubbers said, "I can't," but MacCallum persisted, so Lubbers finally agreed. They took down the tent and rolled Chris up in it. Lubbers broke down the tent poles and put some of them into the fire pit with the tent stakes. Some of the tent poles were still wrapped in the tent and some she just threw. Once Chris was wrapped in the tent, they tied a cord around him and tried to put him in the trunk. He was too heavy, so they pushed him over the edge of the embankment. MacCallum took Chris's pants, wallet, and coat. MacCallum tossed the gun and the magazine clips into the waterfall. Lubbers picked up some shells and tossed them down by the river. They then drove to MacCallum's home. They stopped at Jack in the Box around 12:30 a.m. so they would have an alibi. They agreed to wait 24 hours then report Chris missing. MacCallum came up with the story that they left because they were cold.
Lubbers twice falsely told investigators that they returned to the campsite the following morning to look for Chris. They did not return to the campsite. Instead they slept in, cleaned out the car, and washed the clothes they were wearing to remove any blood. They took Chris's coat and Lubbers's hiking boots to a thrift store in Medford and threw the roll of cord and MacCallum's tennis shoes in a trash can at the high school.
Lubbers lied when she told investigators that she and MacCallum drank alcohol; they drank watered-down alcohol. She also lied when she told investigators that they left because it was cold and that Chris helped them pack up the car when they left the campsite. She changed her story on December 7, after signing an immunity agreement, which provided in pertinent part that she would not be prosecuted for Chris's murder so long as she provided helpful and truthful information regarding the crime and did not actually carry out the killing. Lubbers pleaded guilty to being an accessory after the fact (§ 32), was sentenced to 16 months in custody, and served about half of that with no probation.
The medical examiner testified that Chris's body was found inside a sleeping bag, wrapped inside a tent, along with some camping and personal items. Chris was wearing a T-shirt and a pair of undershorts. No firearm was found, but several bullet casings and two bullets were recovered from inside the sleeping bag. Chris had been shot eight or nine times, and had a total of 25 bullet-type injuries to his body. The wounds were consistent with Chris being shot while lying on the ground. The medical examiner could not determine the exact date and time of death but testified that there is nothing inconsistent with the opinion that Chris died on November 16 or 17.
A forensic technician described the items authorities discovered at the campsite and their locations, including shell casings, fragmented bullets, and tent poles and stakes, some of which were found in the fire pit. Some of the shell casings were found in the tent, and a fragmented bullet was found inside the sleeping bag inside the tent.
Authorities went to the campsite with Lubbers and made a reenactment of what happened. The forensic technician was present and testified that three bullets had been recovered from the ground in the area where Lubbers indicated that the tent had been placed.
A criminalist with the California Department of Justice compared a bullet from the box of ammunition provided by MacCallum with a bullet recovered from Chris's shoulder and concluded the bullets were consistent in shape, coloration, and diameter. He also compared three fired bullets collected from the scene with the bullet retrieved from Chris's shoulder and concluded that "they were the same caliber, the same line, the same number [and width] of lands and grooves, and the same direction of twists." They also had the same "mark on the nose of the bullets." Based on the comparisons and information he received from the manufacture of MacCallum's firearm, the criminalist opined that MacCallum's gun could have fired the bullet that was recovered from Chris's shoulder.
A jacket recovered from a thrift store in Medford was identified as belonging to Chris. The parties stipulated that MacCallum and her daughter were eligible for death benefits from Social Security upon Chris's death.
The car MacCallum said she drove back to the campsite on the morning of November 17 did not appear in surveillance video taken between 2:00 a.m. and noon that day along the route MacCallum would have taken had she and Lubbers returned to the campsite. A search of MacCallum's computer revealed that she had been active on a number of dating websites from September 13 through November 23, and the browsing history showed a search on November 23 for "how to mark a snitch or a burn mark on a face to mark a snitch."
The defense presented no witnesses and expressed its satisfaction with the state of the evidence. In his closing argument, MacCallum's trial counsel argued that Chris was not shot while MacCallum and Lubbers were at the campsite and that neither Lubbers's nor Hills's testimony was credible concerning MacCallum's incriminating statements to each. MacCallum's trial counsel asserted that MacCallum's own conduct supported her innocence, there was no physical evidence connecting MacCallum to the homicide, and that misunderstandings by prosecution witnesses explained any inconsistencies in MacCallum's statements.
DISCUSSION
I
Any Error in Failing to Instruct the Jury on the Limits of Accomplice Testimony Was
Harmless
MacCallum contends that the trial court's failure to sua sponte instruct the jury "on the limits of accomplice testimony [while] misdirect[ing] the jury that a single witness's testimony can prove any fact" violated her rights to trial by jury and due process under the Sixth and Fourteenth Amendments to the United States Constitution and caused a miscarriage of justice under article VI, section 13 of the California Constitution. As we shall explain, any error in instructing the jury on accomplice testimony was harmless.
Section 1111 defines an accomplice "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." That section further provides: "A conviction can not 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."
When there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury that (1) the testimony of the accomplice witness is to be viewed with caution to the extent it "tends to incriminate the defendant," and (2) the defendant cannot be convicted on the basis of the accomplice's testimony unless it is corroborated. (People v. Guiuan (1998) 18 Cal.4th 558, 569; People v. Tobias (2001) 25 Cal.4th 327, 331 (Tobias).)
" 'A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record.' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303 (Gonzales), quoting People v. Lewis (2001) 26 Cal.4th 334, 370 (Lewis).) For purposes of section 1111, corroborating evidence does not need to be sufficient on its own to convict the defendant of the offense for which the accomplice's testimony is offered to prove. (People v. Szeto (1981) 29 Cal.3d 20, 27.) Additionally, the evidence does not need to corroborate every fact to which the accomplice testifies. (Gonzalez, at p. 303.) Rather, "[t]he evidence is ' sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' " (Id. at p. 304, quoting People v. Fauber (1992) 2 Cal.4th 792, 834.) Put another way, " '[c]orroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense . . . .' " (Id. at p. 303, quoting People v. Hayes (1999) 21 Cal.4th 1211, 1271.)
For purposes of this opinion, we will assume that the evidence permitted a finding that Lubbers was an accomplice within the meaning of section 1111. In such a case, the trial court had a duty to give accomplice instructions sua sponte. (Tobias, supra, 25 Cal.4th 327, 331.) However, we find any error harmless because there is more than ample corroborating evidence in the record that tended to connect MacCallum to Chris's murder in such a way as to satisfy the jury that Lubbers was telling the truth. Hills testified that MacCallum told him that she would be better off with Chris dead. MacCallum acknowledged that she and Lubbers were at the campsite with Chris prior to Chris being shot. MacCallum acknowledged bringing her .40-caliber handgun on the camping trip. MacCallum failed to note the presence of tent poles and stakes when describing the state of the campsite on the morning of November 17. MacCallum's vehicle did not appear in surveillance video taken on the morning of November 17 along the route she would have taken had she and Lubber returned to the campsite. Chris's jacket was found at a thrift store in Medford, where Lubbers testified she and MacCallum had left it. A criminalist opined that the bullet recovered from Chris's shoulder was consistent with ammunition provided by MacCallum and with the bullets collected from the scene. After reviewing information from the manufacturer of MacCallum's gun, the criminalist further opined that MacCallum's gun could have fired the bullet that was recovered from Chris's shoulder.
Moreover, the court instructed the jury to carefully review all the evidence and gave detailed and lengthy instructions to the jurors regarding assessing witness credibility. Among other things, the jury was instructed in the language of CALCRIM No. 226 in pertinent part as follows: "You alone must judge the credibility and believability of the witnesses. . . . [¶] . . . [¶] In evaluating a witness' testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. [¶] Among the factors that you may consider are: [¶] . . . [¶] Was the witness' testimony influenced by factors such as bias and prejudice, a personal relationship with someone involved in the case or a personal interest in how the case was decided[?] [¶] . . . [¶] Did the witness admit to being untruthful[?] [¶] . . . [¶] Was the witness promised immunity or leniency in exchange for his or her testimony[?]" Given these instructions and the various reasons jurors had to question Lubbers's credibility, it was not necessary to instruct the jury to view his testimony with caution or distrust. (See People v. Richardson (2008) 43 Cal.4th 959, 1025.)
MacCallum contends the trial's error in failing to instruct the jury on accomplice testimony was compounded by the court's instruction that "[t]he testimony of only one witness may prove any fact." According to MacCallum, jurors were left with the erroneous impression that that they could convict MacCallum based on Lubbers's testimony alone. Again, assuming for argument's sake that Lubbers was an accomplice under section 1111, we find that given the evidence corroborating Lubber's testimony and the instructions regarding the assessment of witness credibility, it is not reasonably probable that MacCallum would have obtained a more favorable result had the trial court not instructed the jury that the testimony of only one witness may prove any fact without any qualifying language pertaining to accomplice testimony.
Having found that the trial court's failure to instruct the jury on accomplice testimony was harmless, we reject MacCallum's claim that the errors violated her federal constitutional rights to due process, a fair trial and to present a defense. (Lewis, supra, 26 Cal.4th at p. 371 [no federal constitutional error where failure to give accomplice instructions was harmless]; People v. Felton (2004) 122 Cal.App.4th 260, 274 ["when there is sufficient corroboration, the failure to give accomplice instructions does not violate due process"].)
Finally, to the extent MacCallum asserts that the failure to instruct the jury on accomplice testimony constituted structural error, our Supreme Court has repeatedly observed that " '[n]o cases have held failure to instruct on the law of accomplices to be reversible error per se.' " (Lewis, supra, 26 Cal.4th at p. 371, quoting People v. Gordon (1973) 10 Cal.3d 460, 470, disapproved on another ground by People v. Ward (2005) 36 Cal.4th 186.) We decline to do so here.
II
Any Error in Failing to Instruct the Jury to View Evidence of MacCallum's Incriminating
Out-of-court Statements with Caution Was Harmless
MacCallum next contends that because Lubbers and Hills testified to incriminating statements made by MacCallum, the trial court had a duty to instruct the jury sua sponte with the bracketed portion of CALCRIM No. 358, which advises the jury to view evidence of a defendant's unrecorded out-of-court statements tending to show his or her guilt with caution. MacCallum further asserts that the trial court breached its duty by failing to give the cautionary instruction. As we shall explain, any error was harmless.
The trial court instructed the jury in the language of CALCRIM No. 358 as follows: "You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether the defendant made any of these statements in whole or in part. [¶] If you decide that the defendant made such statements, consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give to the statements." The trial court also instructed the jury on witness credibility in the language of CALCRIM No. 226 in pertinent part as follows: "You alone must judge the credibility and believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. . . . [¶] In evaluating a witness' testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. [¶] Among the factors that you may consider are: [¶] . . . [¶] How well was the witness able to describe what happened[?] [¶] . . . [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony[?] [¶] . . . [¶] Did the other evidence prove or disprove any fact about which the witness testified[?]" The court, however, failed to instruct the jury with the bracketed portion of CALCRIM No. 358, which reads: "[Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]"
At the time of MacCallum's trial, the trial court had a duty to instruct the jury sua sponte with the bracketed portion of CALCRIM No. 358 when there was evidence of an unrecorded out-of-court statement by the defendant tending to show her guilt. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) Following MacCallum's trial, however, our Supreme Court held that a trial court need only provide the cautionary instruction upon request. (People v. Diaz (2015) 60 Cal.4th 1176, 1189-1192 (Diaz).) The Diaz court expressly declined to decide whether the elimination of the sua sponte rule for CALCRIM No. 358 was retroactive. (Diaz, at pp. 1195-1196.)
MacCallum argues that Diaz should not apply retroactively to her trial. The People contend otherwise. We need not decide the question of retroactivity because we conclude that the trial court's failure to give the instruction in this case was harmless since it is not reasonably probable the jury would have reached a more favorable result had it been given. (Diaz, supra, 60 Cal.4th at pp. 1195-1196.) [applying the People v. Watson (1956) 46 Cal.2d 818, 835-836 standard, rather than the more stringent standard of review for federal constitutional error].)
In evaluating prejudice, we examine the record to see whether there was a conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. (Diaz, supra, 60 Cal.4th at p. 1195; People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey).) Where there is no conflict in the evidence, but simply a denial by the defendant that he made the statements attributed to him, the failure to give the cautionary instruction is harmless. (Dickey, at p. 906.)
In Diaz, the court concluded that not only was the testimony of the witnesses who overheard the defendant's statements "generally consistent, but there was no evidence contradicting these witnesses' testimony that the statements were made." (Diaz, supra, 60 Cal.4th at p. 1195.) The court also found that "the instructions provided by the trial court concerning witness credibility informed the jury of the need to evaluate the witnesses' testimony for possible inaccuracies and determine whether the statement was in fact made." (Id. at p. 1196.) In particular, the court noted that the jury had been instructed on assessing witnesses credibility in the language of CALCRIM No. 226. (Diaz, at p. 1196.)
Here, there was little, if any, conflict in the evidence. MacCallum contends that Hills's testimony that MacCallum stated that things would be better if Chris was dead conflicted with other testimony he had given that MacCallum stated that things would be better if Chris was not around or "gone and dead." While Hills initially testified that MacCallum stated that "things would be better off without [Chris] around," when asked if MacCallum had used those exact words, Hills said that he "believe[d] she said dead." Later, he testified that she had used the phrase "gone and dead." We discern little difference between the word "dead" and the phrase "gone and dead." In any event, where, as here, the general instructions on witness credibility were given, and witnesses were cross-examined so as to raise the credibility issues to which those instructions were pertinent, our Supreme Court has reasoned that "the jury was unquestionably aware their testimony should be viewed with caution." (Dickey, supra, 35 Cal.4th at p. 907; see also People v. McKinnon (2011) 52 Cal.4th 610, 680 ["when the trial court otherwise has thoroughly instructed the jury on assessing the credibility of witnesses, we have concluded the jury was adequately warned to view their testimony with caution"].) We so conclude here.
III
Cumulative Error
MacCallum next argues that even if the trial court's instructional errors are harmless when viewed in isolation, the cumulative effect of such errors warrants reversal of her convictions. We are not persuaded.
"Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' [Citation.] When the cumulative effect of errors deprives the defendant of a fair trial and due process, reversal is required." (People v. Williams (2009) 170 Cal.App.4th 587, 646.)
Here, it is not reasonably probable the jury would have reached a more favorable result in the absence of the trial court's purported instructional errors. As discussed above, ample evidence corroborated Lubbers's testimony linking MacCallum to Chris's murder, and the court's general instructions on witness credibility and MacCallum's cross-examination sufficiently alerted the jury that Lubbers's and Hills's testimony concerning MacCallum's incriminating out-of-court statements should be viewed with caution. Under these circumstances, the cumulative effect of the alleged instructional errors did not prejudice MacCallum.
IV
The Abstract Erroneously Reflects That the Section 12022.53, Subdivision (d) Firearm
Enhancement Was Stayed
MacCallum asserts, and the People agree, that the abstract of judgment erroneously indicates that the trial court stayed MacCallum's sentence on the section 12022.53, subdivision (d) enhancement, when in fact, it stayed her sentence on the section 122022.53, subdivision (b) enhancement. We agree and shall direct the trial court to amend the abstract of judgment to so reflect should the court decline to exercise its discretion to strike or dismiss the section 12022.53 firearm enhancements as discussed below in section V.
V
The Mater Is Properly Remanded Pursuant to Senate Bill No. 620
Finally, MacCallum requests this court remand the matter to permit the trial court to exercise its discretion under recently amended section 12022.53, subdivision (h) to strike or dismiss the section 12022.53, subdivisions (b) and (d), firearm enhancements. We shall grant MacCallum's request.
The jury found true firearm enhancement allegations under section 12022.53, subdivisions (b) and (d). The trial court imposed a 25-year-to-life sentence for the section 12022.53, subdivision (d) enhancement, and imposed then stayed execution of a 10-year enhancement under section 12022.53, subdivision (b). At the time of MacCallum's sentencing, firearm enhancements under section 12022.53 were mandatory and could not be stricken in the interests of justice. (Former § 12022.53, subd. (h).)
On October 11, 2017, the Governor signed Senate Bill No. 620, which amended section 12022.53, subdivision (h) to give the trial court the authority to strike or dismiss in the interests of justice a firearm enhancement allegation found true under that statute. Effective January 1, 2018, section 12022.53, subdivision (h), was amended to state: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2.)
In a supplemental brief, MacCallum argues that the amendment to section 12022.53 applies to her because her case is not yet final on appeal, citing the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada). Under Estrada, courts presume that absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has been applied not only to amendments reducing the penalty for a particular offense, but also to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 70, 75-76.) MacCallum argues that because her case is not yet final, it must be remanded to the trial court for resentencing under the amended version of section 12022.53, subdivision (h), so the trial court can consider whether to strike one or both firearm enhancements.
The People agree that the amendment to section 12022.53 is subject to the Estrada rule and should be applied retroactively to cases not final on appeal. The People argue, however, that remand would be futile here because the trial court would not have exercised its discretion to lessen MacCallum's sentence. The People point to the fact that MacCallum received a consecutive sentence on the section 12022.53, subdivision (d) firearm enhancement and the upper term on the assault and infliction of corporal injury convictions. They also note the trial court's statement at sentencing that it was "struck by the callousness of [MacCallum's] conduct in this case." MacCallum disagrees, arguing that the trial court made no clear statements indicating how it would exercise its discretion if it had any.
We accept the People's concession that the amendment to section 12022.53 is subject to the Estrada rule and should be applied retroactively to cases not final on appeal. We do not, however, accept the People's claim that there is no purpose to remanding this case. In People v. Gutierrez (1996) 48 Cal.App.4th 1894, cited by the People, the trial court sentenced the defendant under the three strikes law, noting: " 'there really isn't any good cause to strike [the prior conviction]. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.' " (Id. at p. 1896.) While the defendant's appeal was pending, the California Supreme Court determined that "trial courts have discretion to strike three strikes prior convictions in the furtherance of justice." (Ibid.) The Gutierrez court declined to remand the case for resentencing, explaining: "In the present case, the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence." (Ibid.) Here, the trial court made no comparable statements as to whether the firearm enhancements should be stricken.
This case is more like People v. Brown (2007) 147 Cal.App.4th 1213, 1228, where the court noted that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way. While we offer no position on how the trial court should act when exercising its newfound discretion under section 12022.53, subdivision (h), we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following exercise of that discretion, to resentence defendant accordingly. Should the trial court decline to exercise its discretion, the trial court is directed to amend the abstract of judgment to reflect that MacCallum's sentence on the section 12022.53, subdivision (b) enhancement (and not the § 12022.53, subd. (d) enhancement) was stayed and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Renner, J.