Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FVI701333, J. David Mazurek, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
Juan Carlos Madrid appeals his conviction for the first degree murder of Miguel Campos. He contends that a combination of instructional errors and prosecutorial misconduct mandates reversal of his conviction. We find no prosecutorial misconduct and no prejudicial instructional error, either individually or cumulatively. Accordingly, we affirm his conviction.
PROCEDURAL HISTORY
Madrid was charged with one count of murder (Pen Code, § 187, subd. (a)), with an allegation that he used a deadly or dangerous weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1)). He was also charged with residential robbery. (§ 211.) A codefendant, Elias Zavala, was charged with the same crimes. Before trial, Zavala pleaded guilty to voluntary manslaughter and robbery and received a sentence of 12 years in state prison. During the trial, count 3 (residential robbery) was dismissed as to Madrid at the request of the prosecutor. The jury later returned a verdict of guilty of first degree murder and a true finding as to the allegation that Madrid used a knife in the commission of the murder.
All further statutory references will be to the Penal Code unless otherwise indicated.
The court sentenced Madrid to a term of 25 years to life, plus one year for the knife-use enhancement. Madrid filed a timely notice of appeal.
FACTS
Madrid apparently believed that Miguel Campos was “out to get him” and that he had threatened Madrid’s family or his son. On June 13, 2007, Madrid ran into Zavala at a convenience store. The two men went to the trailer park where Madrid lived and each drank a 32-ounce beer. Zavala told Madrid he was in an angry mood and felt like fighting. Madrid replied that he was not a punk. He showed Zavala an eight-inch knife in his waistband and suggested going to Campos’s house. As they walked there, Madrid told Zavala to give him a “green light.” Zavala replied, “Do what you have to do.” Zavala did not know what he meant by that, and he did not know what was going to happen.
Campos let them into his trailer. The three men drank some liquor and smoked some methamphetamine which Zavala went to purchase from a friend who lived nearby. After they smoked the methamphetamine, Madrid sent Zavala to buy some more beer. When Zavala returned, they drank a little bit. Then Madrid told Zavala to shut the front door of the trailer. Madrid shut and locked the door, then asked Zavala if he was “ready.” Zavala said “yes,” but did not know what was going to happen. Madrid pulled out his knife and began stabbing Campos. After Campos collapsed on the floor after being stabbed multiple times, Madrid stomped on his head several times, saying “Die, dog.” Zavala then struck Campos on the back of the head with a pan from the stove. Madrid said Campos was dead, but Zavala did not know whether Campos was dead or alive; he did it because he just wanted to “feel a part of it.”
Madrid washed the blood off his hands and changed into one of Campos’s shirts. Zavala wiped his fingerprints off the pan and took Campos’s wallet, which contained $300. Together, they wiped fingerprints off items they had touched, then rolled up Campos’s body in a rug and placed a couch on top of the body. Zavala took a car stereo and a cell phone from the house. Later, they exchanged the stereo for some methamphetamine.
Zavala threw the wallet into a dumpster, but kept the money. They disposed of the cell phone and the knife and a blood-stained rag in the desert. They later returned to Madrid’s trailer. Madrid changed his clothes. They took the clothes Madrid was wearing when he murdered Campos and disposed of them in the desert as well. They then bought some methamphetamine with Campos’s money and smoked it at Zavala’s house. Later, Madrid said he needed to get rid of Campos’s body. Zavala refused to go back to Campos’s trailer, and “took off” to a friend’s house.
The next morning, Madrid came to Zavala’s house and told him they needed to flee to Mexico. Zavala saw no need to hide since he was not the person who killed Campos. Madrid’s sister, Yesenia, drove Madrid to Tecate, where their parents had a house.
Campos’s body was discovered two days later, on June 15. That evening, the police contacted Zavala. Zavala told the police what had happened, although he initially omitted the details of his involvement, i.e., hitting Campos with the pan and stealing his money and other possessions. He later admitted that he had done so. He took the detectives to the desert. He could not find the knife, but he did find some of Madrid’s clothing.
Yesenia Madrid told police that her brother admitted killing Campos. She said he told her that Campos was on the telephone with someone who had said he would murder Madrid’s son. He said that Campos grabbed a knife from the kitchen and threatened him with it, and that he fought with Campos, took the knife and stabbed him with it. Police recorded two telephone calls between Yesenia and Madrid. During one call, Madrid told Yesenia that he had killed Campos in self-defense. During the second telephone call, Madrid spoke to Detective Fisk. He agreed to return from Mexico. He met Fisk at the Tecate point of entry on June 29, 2007. After being taken into custody, Madrid told police that Zavala killed Campos. He admitted that he had told his sister that he had killed Campos, but he claimed he had done that so she would give him a ride to Mexico. He also said that Zavala and Campos were after him, and that he was being framed for murder. Bruises on Madrid’s hands and arms were “possibly” consistent with his description of the way Campos was holding Zavala, trying to resist being stabbed.
LEGAL ANALYSIS
THERE WAS NO PROSECUTORIAL MISCONDUCT OR PREJUDICIAL INSTRUCTIONAL ERROR
Madrid contends that a combination of prosecutorial misconduct during closing argument and instructional errors was cumulatively prejudicial, requiring reversal for a new trial. We disagree.
We begin with the claim of prosecutorial misconduct. During her final argument to the jury, the prosecutor responded to defense argument attacking Zavala’s credibility. She stated, in part, “He’s being truthful. And when he spoke with detectives on April 3rd, he was told multiple times, and he told you from the stand, that he was told to tell the truth. He signed a plea agreement to tell the truth he signed a contract to tell the truth.” Madrid contends that by making these statements, the prosecutor improperly vouched for Zavala’s credibility and placed the “weight and prestige” of the government behind Zavala’s testimony. He relies on United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142.
To preserve a claim of prosecutorial misconduct for review, the defendant must make a timely objection and request an admonition to the jury, unless an admonition would not have cured the harm or objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.) Here, defense counsel made no objection. On appeal, Madrid contends that because an objection at that point “would only have served to underline the improper statement, to appellant’s further detriment,” it would have been futile to seek an admonition. More is required to obviate the need for an objection, however, than a generalized concern about calling further attention to an improper comment by the prosecutor. (People v. Boyette (2002) 29 Cal.4th 381, 432.) Because Madrid offers no more than such a generalized concern, we reject his contention that the issue was preserved despite the lack of objection.
In any event, the prosecutor’s comments were not improper. Although a prosecutor may not personally vouch for the credibility of a witness, he or she may argue that the witness is telling the truth based upon the evidence. (People v. Boyette, supra, 29 Cal.4th at p. 433.) Here, the prosecutor did not vouch for Zavala’s credibility by providing personal assurance as to his veracity. Rather, she discussed evidence which supported the conclusion that Zavala was testifying truthfully, including, but not limited to, Zavala’s testimony that his plea bargain was based on his promise to testify fully and truthfully. And, unlike U.S. v. Weatherspoon, supra, 410 F.3d 1142, on which Madrid relies, the prosecutor’s argument in this case did not involve references to her personal knowledge of matters outside the record, nor did she state her personal belief in Zavala’s veracity. (Id. at pp. 1146-1147.)
We now turn to Madrid’s contentions concerning instructional error. First, he contends that the court erred in giving only the general instruction on the use of circumstantial evidence to prove guilt, rather than the targeted instruction on the use of circumstantial evidence to prove mental state. (CALCRIM Nos. 224 and 225, respectively.) He states that because he conceded that he killed Campos, the only disputed issue was his mental state. Consequently, he contends, the use of the improper instruction “skewed the jury’s focus by directing it to consider circumstantial evidence on an issue for which virtually no circumstantial evidence was presented, i.e., appellant’s guilt, and failed to focus the jury on the sole issue for which circumstantial evidence was presented, i.e., appellant’s mental state.”
If mental state or specific intent is the only element of the offense which rests substantially or entirely on circumstantial evidence, the court should give an instruction such as CALCRIM No. 225, which instructs on the use of circumstantial evidence to prove specific intent or mental state, rather than CALCRIM No. 224, which instructs on the use of circumstantial evidence generally. (People v. Cole (2004) 33 Cal.4th 1158, 1221-1222, discussing analogous instructions, CALJIC Nos. 2.01 and 2.02.) Nevertheless, even if mental state or specific intent is the only element which rests substantially on circumstantial evidence, the failure to give an instruction specifically tailored to the use of circumstantial evidence with respect to that element is not prejudicial if the more general, all-inclusive circumstantial evidence instruction is given. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142; People v. Burch (2007) 148 Cal.App.4th 862, 872-873.) Here, the court gave the general instruction. Consequently, its failure to give the more specific instruction was not prejudicial error.
People v. Yrigoyen (1955) 45 Cal.2d 46, cited by Madrid, does not hold otherwise. The issue in that case was not whether the general instruction on circumstantial evidence was sufficient where the issue in question was mental state or specific intent. Rather, the issue was whether any instruction on circumstantial evidence was required to be given sua sponte. (Id. at pp. 49-50.)
Next, Madrid contends that the court erred by failing to instruct the jury that Zavala was an accomplice as a matter of law and instead instructing the jury to determine whether Zavala was an accomplice.
Section 1111 prohibits conviction on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime. Section 1111 defines an accomplice “‘as one who is liable to prosecution for the identical offense charged against the defendant....’ [Citation.] ‘When the evidence at trial would warrant the jury in concluding that a witness was an accomplice of the defendant in the crime or crimes for which the defendant is on trial, the trial court must instruct the jury to determine if the witness was an accomplice. If the evidence establishes as a matter of law that the witness was an accomplice, the court must so instruct the jury, but whether a witness is an accomplice is a question of fact for the jury in all cases unless “there is no dispute as to either the facts or the inferences to be drawn therefrom.” [Citation.]’ [Citation.]” (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) Here, the evidence did not establish that Zavala was an accomplice as a matter of law; based on Zavala’s testimony, the jury could have concluded that Zavala did not know that Madrid planned to kill Campos and did not share his intent. The fact that there is evidence which supports the conclusion that Zavala was an accomplice does not compel a different result. On the contrary, because the evidence is conflicting, whether Zavala was an accomplice was a question of fact for the jury and the court properly refrained from instructing that Zavala was an accomplice as a matter of law. (Ibid.) People v. Dailey (1960) 179 Cal.App.2d 482, on which Madrid relies, does not support his argument. In that case, the uncontradicted evidence showed that the witness, Meyers, knew that the two defendants were planning a burglary and actively participated in the planning. He also assisted them in attempting to locate a ladder to effect entry, permitted the use of his car, “thereby making the whole so-called ‘caper’ possible,” and then knowingly stored the stolen articles in his home. Consequently, the court held, Meyers was an accomplice as a matter of law. (Id. at pp. 485-486.) In contrast, in this case the nature and extent of Zavala’s participation in the incident was disputed and the evidence supported different inferences.
Finally, Madrid contends that there is a conflict between CALCRIM No. 301 (testimony of a single witness is sufficient for proof of any fact) and CALCRIM No. 334 (accomplice testimony must be corroborated in order to convict). CALCRIM No. 301 includes an optional paragraph which explains that this general rule does not apply to accomplice testimony. However, the court read the unmodified version of CALCRIM No. 301. Madrid contends that the combination of the unmodified version of CALCRIM No. 301 and CALCRIM No. 334 “permitted confusion” as to whether the jury could consider Zavala’s testimony alone for the proof any fact.
Madrid “concedes” that this error has been found harmless where accomplice instructions were given. (See People v. Noguera (1992) 4 Cal.4th 599, 630-631 (Noguera).) He contends that in this case, the error was not harmless because it did not occur in isolation and it was exacerbated by other errors. However, in Noguera, the court did not find the error harmless; rather, it found that there was no error because the complete set of accomplice instructions was given, explaining the definition of an accomplice, the nature and sufficiency of corroborative evidence, the rule that one accomplice may not be corroborated by another, and the requirement that accomplice testimony be viewed with “distrust.” The court concluded that “nothing in the combined instructions suggested to the jurors that corroboration of [the accomplice’s] testimony was not required: ‘A reasonable juror would have recognized CALJIC No. 2.27 [the counterpart of CALCRIM No. 301] as setting forth the general rule and the charge on accomplice testimony as an exception to it. [Citations.] Nothing before us indicates that the jurors may have acted otherwise.’ [Citation.]” In addition, in that case it was clear from the record that counsel for both sides proceeded throughout the trial on the assumption that the witness was an accomplice whose testimony required corroboration. (Noguera, supra, at p. 631.) Here, the court gave all of the other instructions pertaining to accomplices referred to in Noguera. The prosecutor also explained the need for corroboration in her closing argument and discussed the evidence which, in her view, constituted corroboration. And, as in Noguera, there is nothing in the record which indicates that the jury did not understand that accomplice testimony is an exception to the general rule that a witness’s testimony needs no corroboration. Consequently, the court’s failure to modify CALCRIM No. 301 to state the exception explicitly was not error. (Noguera, at p. 631.)
Because we have found only one instructional error and have determined that it was not prejudicial, we reject Madrid’s claim of cumulative error.
DISPOSITION
The judgment is affirmed.
We concur: Richli J., King J.