Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 035627
RAYE, Acting P.J.In trying to minimize her own culpability, defendant Christina Marie Marten pointed to Oscar Cervantes as the devil because, with a grin on his face, he shot and killed her close friend. Crank, not the smiling shooter, is the devil in this ghastly Halloween tale. Defendant was born addicted to it, set up her best friend to be executed because of it, slept with Norteños as well as Sureños to facilitate the sale of it, and was convicted of first degree murder, second degree murder, attempted murder, and a variety of gang and weapon enhancements for her involvement with those who profited from it. In October 2002 crank (methamphetamine) provided the Woodland criminal street gangs with the financial wherewithal to proliferate, recruit, and control the streets with fear and, as this case demonstrates, to be so disconnected from time, empathy, and even loyalty to each other to shoot and kill for a nonexistent debt.
Like Judas Iscariot, defendant confessed to handing over her brother for execution. Her confession was corroborated by gang members who themselves were regular methamphetamine users by the time they turned 13 years old. Because we reject her contention on appeal that her confession was involuntary, and that confession, corroborated by eyewitness testimony, constitutes overwhelming evidence of her guilt, the various evidentiary and instructional errors that may have tainted this trial do not require reversal of the judgment of conviction. We affirm.
FACTS
It is hard to imagine the warped world in which defendant tried to survive, for this is a story of primal survival on the drug dealing, gangbanging, violent streets young addicts populate. A criminal street gang expert well versed in Woodland gangs, and the Norteños and Sureños involved in these shootings, attempted to introduce the jury to a world controlled by prison gangs who call the shots on the streets. He explained the importance of respect and the chain of command in the gang culture, emanating from state prisons down to local shot callers and then percolating to foot soldiers who, like defendant, trafficked in drugs to support their addiction and to keep them in the good graces of their superiors. Because drugs finance the Woodland gangs, the expert told the jury that it would not be uncommon for a Norteño shot caller to enlist a Sureño to execute a Norteño to instill fear in the community, “sending a strong message that you must pay your debts, do not leave me without paying,” which helps “establish the control of your drug trade.”
This was not then, as one might expect, a slaying by a member of one gang in retribution for a sign of disrespect by a member of a rival gang. Defendant confessed that she, a member of the Norteños, blamed a drug debt she owed to another Norteño, Ernesto Arellano (Neto), on her brother, Robert Stepper, who was also a Norteño. Although she was engaged in a sexual relationship with Neto, she was afraid she would be killed for failing to pay her debt. So in mid-October 2002, she served up her brother.
While Robert Stepper was not defendant’s biological sibling, they had a very close personal relationship and she called him her “brother.”
The Lincoln Manor Apartments were a hub of gang and drug activity. Neto, as well as many others involved in the shooting, lived there. About two weeks before Halloween, several Norteños were gathered at Neto’s apartment for a “junta,” a kind of meeting. Because she is a girl, defendant was banished to a back bedroom and not allowed to participate. Neto expressed his displeasure with the behavior of many young Norteños who failed to abide by the expectations of the gang. He ranted, “I’m tired of this shit. . . . We need to start handling these dudes like we do in the prison, taking care of them. And these people think they can keep fucking ripping me off . . . and getting away with it and just needs to be took care of.”
Neto first enlisted Nathaniel Easlon (Crazy Nate), a Crip gang member and debtor, and his friend Richard Betancourt (Spooky) to take care of Stepper. Crazy Nate initially resisted because Stepper was his best friend. But the sad fact remained that Crazy Nate owed Neto between $1,600 and $1,800 for drug proceeds he had squandered, and Neto was willing to forgive the debt if Crazy Nate would stand as a lookout while someone else shot his best friend. The someone else was a Sureño, Oscar Cervantes.
Defendant, by her own admission, had operated as a “bridge” between Neto and Oscar by having sex with them both and facilitating drug sales between them. At the meeting, they decided that on Halloween night defendant would lead Stepper to the site of the shooting; Crazy Nate, and perhaps Spooky, would stand at the end of the street as lookouts; and Oscar would shoot him. Defendant intercepted a call from Candelario Garza (Gettums), the Sureño who approved the shooting, and while giving the telephone to Neto, said that “Gettums and Jaime were on the way bringing over a weapon.” James Olague (Jaime or Droopy), another Sureño, was a “blood brother” of Oscar and was supposed to make sure that defendant did her job. Neto paid Oscar two and one-half ounces of crank to shoot Stepper. He also paid Gilberto Lopez (Guero), another Sureño, with methamphetamine to drive the getaway car to help Oscar escape.
The shooting took place on Halloween night almost as planned. Crazy Nate assumed his post at the end of the street, but Spooky had fallen off a balcony earlier in the evening and was too drunk to accompany him. Defendant met Stepper at a Chevron gas station and Crazy Nate watched them walk past. Defendant and Stepper separated, and Stepper went on to visit with teenage siblings Eric and Vickie Folsom and their friend Jessica Valdez outside a nearby house. Oscar, with a sweatshirt hood pulled up over his head, walked down the street, approached the truck where the teenagers were gathered, and opened fire. But he did not shoot just Stepper. A neighbor saw him shoot all four young people who were in or around the bed of the pickup truck, which was parked in the driveway of a house across the street. Eric Folsom was shot five times and died from a gunshot wound to the chest. Stepper was shot four times, twice in the neck, and also died from a wound to the chest. The girls’ bullet wounds were not fatal. Oscar was smiling.
Defendant and Crazy Nate took off running, both now distressed that their friend had been murdered. Crazy Nate accepted a deal with the prosecution and testified against defendant.
Kean Thurman testified that defendant got into his car around 10:00 p.m. on Halloween night and told him “they had just shot her brother” and “she was standing right there.” Thurman and defendant drove out into the country, smoked some methamphetamine, and had sex in the car.
Defendant’s theory at trial was that both her confession and Crazy Nate’s were coerced and false. She asserted that two Sureños in a typical gang retaliatory slaying had committed the shooting. None of the nonaccomplice eyewitnesses could identify the shooter, and the murder weapon was never found.
Defendant relied on the testimony of Veronica Lugo, at the time of the killings a homeless Norteño gang member and methamphetamine addict. Lugo saw Guero and a man named Memo, two Sureños, in the vicinity of the shooting and both were holding handguns. Guero pointed the gun at her, telling her to stay right there, and instructed Memo, “[Y]ou need to get rid of this bitch, you need to get rid of her.” Lugo was afraid she was going to be killed. The next day Gettums told Lugo her parents and children would be killed if she told anybody what she had seen the night before.
I
Voluntariness of Defendant’s Statements
Nine months after the Halloween murders, defendant was incarcerated for unrelated crimes. She wanted out. She also wanted to help her cellmate avoid some or all of her state prison sentence. Defendant initiated contact with the investigators of the unsolved Halloween shootings. She now insists that during the two ensuing interrogations the police officers coerced her to falsely confess. The admission of the videotapes of her interrogations at trial, in defendant’s view, constitutes reversible error. She understands the basic legal principles involving the review of the trial court’s finding that the confessions were voluntary, but she misapplies those principles to the totality of circumstances surrounding the interrogations.
It is true, as defendant asserts, that the admission of an involuntary confession violates the due process rights guaranteed by the state and federal Constitutions and that the prosecution bore the burden of proving by a preponderance of the evidence that her confessions were voluntary. (People v. Holloway (2004) 33 Cal.4th 96, 114 (Holloway).) Because the interrogations, with the exception of one short segment, were videotaped and the facts surrounding the giving of the statement are undisputed, we must independently review the trial court’s determination that the statements were voluntary. (People v. Vasila (1995) 38 Cal.App.4th 865, 873.)
“A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citation.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence.” (People v. Maury (2003) 30 Cal.4th 342, 404.) The question is whether the defendant’s “‘will was overborne at the time he confessed.’” (Ibid., quoting Lynumn v. Illinois (1963) 372 U.S. 528, 534 [9 L.Ed.2d 922].)
To determine whether defendant’s will was overborne, we consider the totality of the circumstances, including both the “‘characteristics of the accused and the details of the interrogation.’” (In re Shawn D. (1993) 20 Cal.App.4th 200, 208-209 (Shawn D.), italics omitted; see also Holloway, supra, 33 Cal.4th at p. 114.) Thus, such factors as the defendant’s age, sophistication, education, physical condition, mental health, and prior experience with the justice system as well as the length of the interrogation, its location, and the interrogation techniques employed by the interrogators must all be considered. (People v. Williams (1997) 16 Cal.4th 635, 660 (Williams); Shawn D., supra, 20 Cal.App.4th at p. 209.)
With these principles in mind, we turn to the relevant circumstances surrounding the July 2, 2003, and August 6, 2003, interrogations. Defendant, who was 19 when interrogated, suggests she was particularly vulnerable to coercive techniques because she was born addicted to crank; she became a regular user by the time she was 10, and as a result, her brain is compromised, if not fried; her parents, both methamphetamine users, failed her; and she suffers attention deficit hyperactivity disorder, a learning disability, and a major depressive disorder. As an exemplar of her fragility, she points to the videotaped interrogation wherein she is captured sobbing and rolled up into a fetal position.
She was actually a few days shy of her 19th birthday during the first interview.
Indeed, the circumstances of her birth, upbringing, and resulting disorders highlight the devastation and suffering wrought by methamphetamine use. And we agree with defendant that, given her age and mental health, she was particularly susceptible to undue influence. But as sad as her personal story is, it alone does not render her statements involuntary. Thus, the question remains whether the police coerced her to confess.
Unlike the facts in the cases upon which she relies, defendant, not the police, instigated the first interview. She was incarcerated and anxious to curry favor with the authorities for herself and for her cellmate. Yet as the questioning went on, she was evasive. She attempted to give as little information as she could and still extract a deal. Nevertheless, she accuses her interrogators of threatening her, making promises of lenity, and lying to her.
Police officers have considerable latitude in questioning a suspect once she is advised of her rights. “‘Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect. . . . Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect’s failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession. . . .’ [Citation.]” (Holloway, supra, 33 Cal.4th at p. 115.) A confession is inadmissible if elicited by promises of benefit or leniency. Mere advice or exhortation by the police to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. (People v. Nelson (1964) 224 Cal.App.2d 238, 250.)
The July questioning lasted nearly five hours, most of which consisted of defendant’s rambling and disjointed narrative in which she describes a whole cast of characters she had associated with in the neighborhood. She complains she was confined in a small interrogation room but overlooks the fact she was incarcerated at the time and the investigators had to make special arrangements to have her removed from the county jail to be interviewed. Moreover, there was nothing intrinsically coercive about the size of the room or the length of the questioning when, as here, defendant was not a target of the investigation at the time she initiated the contact with the investigators and she was given a wide open stage to tell them what she knew.
The worst that can be said about the July interview is that the investigators assured defendant they would try to help her. Defendant contends the officers made prohibited promises of lenity in exchange for testimony that pleased them. Such promises, she insists, lured her into making false admissions. Reviewed in the context in which the officers’ statements were made, we disagree.
Defendant came to the officers seeking their help. They expressly told her that they could make “no guarantees” and that the district attorney and the judges ultimately made the decisions. But they did tell her that before the decision makers could consider a deal, they would have to know what information she had, and that if she provided information that solved the case, she would “get good consideration.” We conclude the officers in this case did not cross the nebulous line from telling defendant the benefit that might “‘“flow[] naturally from a truthful and honest course of conduct”’” into a proscribed promise of leniency. (Holloway, supra, 33 Cal.4th at p. 116.) Here, the interrogators made no promises at all. Rather, they told her the truth and that was that she would be given good consideration for her cooperation.
There is no denying that the tone of the second interrogation changed markedly. Defendant chronicles the investigators’ increasing impatience and the crude language they used while attempting to get her to tell a coherent and consistent story. A few examples highlight their frustration. They warned her: “[T]he train is pulling out of the station, so you need to stop and decide whether you want treatment or you want to go to the fucking penitentiary.” After many hours of enduring defendant’s rambling and disingenuous backtracking, they instructed her to “run the whole thing again, except this time, tell us what we already know.” When she was still not forthcoming, one of the interrogators warned: “I’m not going to stop you and give you hints of what I know anymore, because if you don’t know by now, that I know what the fuck I’m talking about, . . . then you go ahead and get in the way of this freight train.”
Defendant argues that in the face of these impermissible threats she broke down and falsely confessed. Young, alone, and emotionally fragile, she maintains she did not have either the maturity or strength to withstand the coercive badgering by the officers. We conclude that what appears offensive in isolated snippets on the page did not become improperly coercive in the context of the entire videotaped interrogation. We consider each of defendant’s allegations of police coercion individually as well as cumulatively.
“Tough talk,” as the Attorney General points out, does not necessarily render a confession involuntary. (Shawn D., supra, 20 Cal.App.4th at p. 213.) While the expletives, in isolation, may sound harsh or even crude, they certainly were not new to defendant, whose own colorful language was peppered with references to “bitches,” “shit,” “mother-fucking brother,” and admissions such as “you can’t fuck your debt away, that’s why I threw Robert in” and threats like “I don’t give a fuck who goes down. Shit.” This was not a Sunday school conversation or polite cocktail chatter. In using common street vernacular, they attempted to communicate with defendant in a language she both knew and understood. It is true they became increasingly frustrated by defendant’s failure to be forthcoming and straightforward. The longer she prevaricated, the firmer they became. Nevertheless, we do not believe that their tough talk encouraging her to tell the truth became unduly coercive.
Of greater concern is defendant’s allegation that the officers used deception as a means to induce her to confess and pressured her to adopt the information they fed to her. Again, both the law and the record belie her claim.
“So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. [Citations.] Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing.” (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.) Defendant argues that the officers falsely told her an eyewitness could identify her as running off after the shooting and that they knew all about the plan to commit the homicides from unnamed coconspirators when, in fact, they did not. These misrepresentations, according to defendant, persuaded her to confess.
The record discloses that defendant was tripped up by her own, not the officers’, lies. For example, she claimed the victims were shot with a nine-millimeter firearm when the forensic evidence conclusively refuted the claim, and she asserted Eric Folsom was in the street when he was shot when, in fact, he fell in the bed of the truck right where he was shot. After defendant made the false assertion that she had seen Lugo in Guero’s car after the murders, one of the detectives told her Lugo had not been in the car and admonished her: “I want somebody that’s going to cooperate fully, this is your, I’m going to get up and walk out of here if you lie to me again.” The trial court, having watched the videotaped interrogation, made the same observation: “The officer repeatedly kept catching her in lies, things they knew. She would change the story to accommodate that . . . .”
Defendant cites a litany of other facts she claims the police officers fed her while repeatedly suggesting that she would be treated more or less harshly if she verified the information they gave her. She distorts the record. While the police did try to encourage defendant to tell the truth by convincing her they had already accumulated a vast amount of information from other sources, they did not imply that questioning would stop only if she gave them the story they wanted as the interrogators did in People v. Esqueda (1993) 17 Cal.App.4th 1450, 1485-1486 (Esqueda), nor did they repeatedly and relentlessly tell her what they wanted to hear as the interrogators did in People v. Lee (2002) 95 Cal.App.4th 772, 786.
The totality of the circumstances in Esqueda presents a stark contrast to the interrogators’ conduct here. Esqueda, drunk and hysterical when the marathon questioning began, stated repeatedly that he did not want to talk. (Esqueda, supra, 17 Cal.App.4th at pp. 1485-1486.) In spite of his protestations, his tormentors (as the appellate court characterized them) questioned him on and off for 11-1/2 hours beginning at 10:00 p.m. He was emotionally distraught and exhausted. (Id. at p. 1485.) Yet they implied they would not stop until he told them what they wanted to hear. (Id. at pp. 1485-1486.)
The court described how the interrogators badgered the defendant to parrot back what they told him. The court wrote: “They told him what they wanted when he asked what they wanted him to say. At first they said they wanted the truth. Later, they said they wanted to hear only who killed Ana and suggested it would be better for him if it was an accident. They said they knew it was him and that it was only a matter of intentional or accidental killing. They told him his only way out was to say it was an accident. They implied by so saying he would not have to go to prison and would be out with his children.” (Esqueda, supra, 17 Cal.App.4th at pp. 1485-1486.)
Nothing like that occurred in this case. Defendant’s interrogation was of a completely different nature. First, a month passed between her two interrogations. There was no indication she was either emotionally distraught or exhausted when she began either interview. She never intimated she did not want to talk. To the contrary, she was the one who initiated the contact with the investigators.
She was, however, far from forthright. Her narratives were long, convoluted, and sometimes incoherent as she apparently tried to obtain favorable treatment without implicating herself in the murders. While the officers during the August interview lost patience with her dishonesty, they never demanded that she regurgitate a story they had concocted. Rather, they used the information they already had to unveil her deceptiveness and forcefully exhorted her to tell the truth. We reject defendant’s assertion that they employed impermissible deception or suggestion to coerce her to confess.
In summary, we conclude the officers had the unenviable challenge of extracting the truth from a young, streetwise inmate who, despite her drug-related disabilities, was coy, evasive, and calculating. They avoided most of the heavy-handed techniques that have rendered confessions involuntary as a matter of law. That is not to say they remained unflappable. To be sure, they exerted pressure, used foul language, and lost their patience with her deception. But this record simply does not contain evidence that any conduct by law enforcement coerced defendant to confess or that causes us to question whether they managed to overcome her will. Thus, the admissions defendant made were voluntary and admissible against her at trial.
Defendant challenges the admissibility of her testimony to the grand jury as the fruit of the unlawful interrogations. Since we have concluded that her confession was voluntary, her challenge to the admissibility of the grand jury testimony fails as well.
Defendant also complains that Sergeant Steven Gill, an expert on Woodland gangs, was improperly allowed to vouch for the propriety of the interrogation process. She argues that the propriety of the interrogation process was an ultimate factual issue for the jury; therefore, expert opinion was impermissible. (People v. Melton (1988) 44 Cal.3d 713, 744; People v. Zambrano (2004) 124 Cal.App.4th 228, 239-240; People v. Smith (1989) 214 Cal.App.3d 904, 915; People v. Sergill (1982) 138 Cal.App.3d 34, 40.) In the cases she cites, unlike the testimony of Sergeant Gill, the witnesses either vouched for, or expressed doubt about, someone’s credibility. It goes without saying that the jurors, not expert witnesses, are the ultimate arbiters of credibility.
Here, by contrast, Sergeant Gill supervised the detective who interrogated defendant. Given his supervisory role and his extensive experience in interviewing and interrogation, he was asked if Detective Scoggins had interviewed defendant properly. The question, to be sure, got dangerously close to asking the sergeant whether defendant’s confession was voluntary. But that was not the question asked. Rather, the trial court seems to have interpreted the question as an inquiry into a supervisor’s assessment as to whether his subordinate had followed appropriate protocol during the interview. We cannot say that in this context the question was improper. Moreover, because the sergeant was asked whether the interview was proper, and not whether the confession was voluntary, we conclude the expert did not usurp the jury, which was charged with making the ultimate factual finding.
Finally, defendant contends that the failure to record the first segment of her August 6 interrogation violated her right to due process. She acknowledges that the issue has been resolved against her. (People v. Gurule (2002) 28 Cal.4th 557, 602-603.) We are, of course, bound by decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
II
Special Circumstances Finding
Defendant asserts that the gang-murder special circumstance does not apply to an aider and abettor. She misreads the statute.
Penal Code section 190.2, subdivision (a) provides, in pertinent part: “The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [¶] . . . [¶] (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.” She argues she could not be subject to this provision since she was not the actual shooter and therefore did not “intentionally kill[] the victim” as an active participant in a gang.
All further statutory references are to the Penal Code unless otherwise indicated.
As the Attorney General points out, however, defendant ignores subdivision (c) of section 190.2, which provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true . . . .” Thus, by its express language, subdivision (c) applies to any person who had the requisite intent to kill and aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of an enumerated special circumstance, including gang-related murder.
Here the jury was instructed in the language of CALJIC No. 8.80.1 as follows: “If you find that the defendant was not the actual killer of a human being or an aider or abettor, co-conspirator, you cannot find the special circumstance to be true unless you are satisfied beyond a reasonable doubt that such defendant, with the intent to kill aided, abetted, induced or assisted any actor in the commission of the murder in the first degree.” Properly instructed, the jury found the gang-murder special circumstance to be true and thus found defendant aided and abetted the killing “with the intent to kill.” The jury’s finding satisfies section 190.2, subdivision (c).
Denigrating what she characterizes as the “catch-all” provision for aiders and abettors, defendant urges us to ignore section 190.2, subdivision (c)’s express language because section 190.2, subdivision (a) is one of only six special circumstances with “defendant-specific language.” In other words, the defendant-specific language is a more specific statutory provision than the general catch-all provision for aiding and abetting that may apply to nondefendant-specific special circumstances. As a matter of statutory construction, defendant insists the more specific statute must prevail because it is consistent with the electorate’s intent. (People v. Duran (2004) 124 Cal.App.4th 666, 670-671.) We conclude otherwise.
In assessing the electorate’s intent we rely first on the plain language of the statute and harmonize the various subdivisions of the statute whenever possible. (People v. Cottle (2006) 39 Cal.4th 246, 254.) Subdivision (c) of section 190.2 is clear and precise. It is not, as defendant would have us believe, an afterthought or mere “catch-all” provision. Rather it plainly applies to aiders and abettors who are not the actual killer and furthers the electorate’s intent to punish more severely those who aid and abet murder while engaged in gang-related activities. Moreover, it complements subdivision (a) of section 190.2 by expanding the universe of those liable for gang-related murder to encompass not only the actual killer but also those who facilitate the murder with the requisite intent. As a result, we can give effect to the express and plain language of both subdivision (a) as well as subdivision (c) by harmonizing their terms and allowing a jury to impose the gang-murder special circumstances on the perpetrator as well as the aider and abettor. There was no error.
III
Evidentiary Errors
We agree with defendant that her trial was not without error, both evidentiary and instructional. But as we explain below, these minor errors do not, either individually or cumulatively, necessitate reversal because we remain satisfied beyond a reasonable doubt that the jury would have convicted her even if her trial had been flawless. (Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705].)
A. Admissibility of the Codefendants’ Hearsay Statements
Defendant was jointly charged with Neto, Oscar, Droopy, Crazy Nate, and Spooky. She moved for, and was granted, a separate trial to protect her right to due process and a fair trial in light of hearsay statements her codefendants made to a jailhouse informant, Richard Bowie. In other words, because a joint trial presented an intractable Aranda-Bruton problem, she sought the very remedy suggested by the Supreme Court to protect her right to confrontation. (Gray v. Maryland (1998) 523 U.S. 185, 192-195 [140 L.Ed.2d 294]; Richardson v. Marsh (1987) 481 U.S. 200, 211 [95 L.Ed.2d 176].) Now the Attorney General makes the astonishing claim that the hearsay statements are admissible because the defendants were not jointly tried and, as a consequence, there is no Aranda-Bruton issue. We reject the Attorney General’s argument.
According to Bowie, Oscar twice told him defendant “started this ball rolling.” Oscar also told him that “once the shot[’]s called it is called,” that if they all stuck together they would beat it, and that he (Oscar) needed to change his appearance. Bowie indicated that Neto said he paid two ounces of methamphetamine for the killing and that Neto wrote a note to Oscar saying they had to stick together. Bowie also told authorities that Droopy wrote a note telling Oscar not to make a deal with police and told Bowie to tell Oscar not to say or do anything; if anybody said anything it would hang them all.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton).
In Aranda, supra, 63 Cal.2d at pp. 530-531, the California Supreme Court held that when the prosecution seeks to admit hearsay statements by nontestifying codefendants that implicate the defendant, the trial court has three alternatives: 1) redact the statements to eliminate any references to the defendant; 2) exclude the statement if redaction does not adequately protect the defendant; or 3) grant a severance. The United States Supreme Court went further in Bruton, supra, 391 U.S. 123, holding that “introduction of an incriminating extrajudicial statement by a codefendant violates the defendant’s right to cross-examination, even if the jury is instructed to disregard the statement in determining the defendant’s guilt or innocence.” (People v. Song (2004) 124 Cal.App.4th 973, 981.) The Attorney General contends that once a severance is granted, the Aranda-Bruton problem disappears.
Although in one sense the Aranda-Bruton problem does disappear, that is precisely because the hearsay is inadmissible in the separate trial, not, as the Attorney General argues, because Aranda-Bruton is only relevant in joint trials. The right sought to be protected is defendant’s constitutional right to confrontation. So although Aranda-Bruton and their progeny address the difficult issue of the admissibility of a nontestifying codefendant’s extrajudicial admissions in a joint trial, they certainly do not dilute the defendant’s right to confrontation in a separate trial -- the very remedy suggested in the Aranda-Bruton cases.
The Attorney General makes a second argument to avoid the obvious intrusion on defendant’s right to confrontation. He contends the declarants’ statements were not hearsay at all “because they do not relate any matter which can fairly be described as truthful. In other words, it is entirely unclear what ‘ball’ [Oscar] was referring to that appellant allegedly started ‘rolling.’” We find the Attorney General’s argument untenable.
If, as the Attorney General suggests, Oscar was referring to his “predicament” of awaiting trial for murder rather than the more obvious implication that defendant initiated the series of tragic events that culminated in her brother’s death, his statement would have been irrelevant. His “predicament” was not relevant to any of the issues in defendant’s trial. Rather, Oscar’s statement, and for that matter, the more elusive statements by Neto and Droopy as well, were relevant precisely because they implicated defendant in the gang-related crimes.
We need not decipher each of the statements and determine which, if any, would have been against the declarants’ penal interests at the time they were made because we conclude that the transgression of defendant’s right to confrontation was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 307-308 [113 L.Ed.2d 302] (plur. opn. of Rehnquist, C.J.).) We disagree with defendant’s characterization that the evidence in this case presented a close case for the jury. Defendant confessed. Her admission that she told Neto that Stepper owed him for the drugs, when in fact she alone was indebted to him, corroborated Oscar’s statement that she “started this ball rolling.” While Oscar’s statement certainly shifted blame to her, it was nothing the jury did not already know from defendant herself, and that was that she let her brother take the fall for her.
Not only did defendant confess, but Crazy Nate’s testimony provided compelling corroboration as well. Defendant points to the notable flaws in Crazy Nate’s credibility, including the favorable deal he made with the prosecution and his history of methamphetamine use. Her trial attorney made the same argument to the jury. But the fact remains that the substance of Crazy Nate’s testimony paralleled defendant’s own account of the events leading up to the shooting in all material respects. Rather, the jury would have had to have accepted the rather improbable defense that Crazy Nate’s and defendant’s confessions were false because they had been badgered and intimidated by law enforcement during their respective interrogations, a proposition we rejected earlier as it related to defendant.
Moreover, the substance of the challenged statements was rather insignificant in the context of this case. The most damning statement was Oscar’s remark that defendant got the ball rolling, a rather vague and oblique reference to her role in the murder. The other statements that they all needed to stick together, that Oscar had no ability to back out of the homicide, and that he needed to change his appearance had little, if anything, to do with defendant at all. None of the other statements referred to defendant, all were made in jail following the commission of the crimes, and none indicated that defendant was communicating with any of the declarants, had knowledge of their comments, or was in any other way implicated. We conclude these statements were at best marginally relevant and of little consequence in a trial highlighted by two compelling confessions by key players in these murders and related crimes.
B. The Smiling Shooter
The prosecution was allowed to introduce testimony by its investigator that he observed Oscar routinely grinning or smiling during court proceedings on the theory that his courtroom demeanor was probative of his identity as the shooter. While not expressly conceding the issue, the Attorney General does not defend its admissibility but argues that evidence of smiling was “not so devastating that it could be said to have rendered appellant’s trial fundamentally unfair.”
We agree. The evidence was only marginally probative. Oscar’s courtroom demeanor added little to defendant’s own description of him as the smiling shooter, the devil incarnate. She described Oscar’s involvement in the murders from the initial planning at Neto’s apartment until he actually opened fire on the four young people in and around the truck in the driveway. We conclude that the investigator’s description of Oscar’s demeanor during various hearings was not prejudicial, and we are convinced beyond a reasonable doubt that the jury would not have reached a different result in the absence of this testimony.
C. The Intimidated Witness
The prosecution was also allowed to introduce Kean Thurman’s testimony that he had been attacked by inmates in the Yolo County jail after they learned he had testified before the grand jury. There was no evidence that defendant had anything whatsoever to do with the intimidation. She contends that the court erred by admitting the evidence because it was improper impeachment on a collateral matter; it improperly suggested guilt by association, particularly association with Norteños; and it lacked the foundation necessary to establish its relevancy to a credibility assessment. The admissibility of the evidence under the deferential standard of review presents a close question, but the question of prejudice does not. Any evidentiary error was harmless.
Kean Thurman, like Crazy Nate and defendant, was addicted to methamphetamine before he was 13 years old. He testified that defendant came up to his car around 10:00 p.m. on Halloween 2002 and announced “they had just shot her brother.” Defendant appeared sad and shocked to him. She and Thurman later used methamphetamine and drove out into the country to have sex.
Thurman further testified that Neto appeared angry when he saw him after the shooting, which Thurman thought was “fake” because Neto and Stepper had not been “real tight-tight” while Stepper was alive. Thurman told the jury that Neto said, “We need to see -- something crazy just happened, we need to make sure that no one else is going to get shot tonight.”
The prosecutor’s investigator was allowed to testify that Thurman told him he was afraid to testify. The trial court overruled defense counsel’s objection to the proferred testimony, explaining, “I can see where that would have some probative value. He was, to say the least, a space cadet. Now, whether that’s because he’s fried his brain or whether that’s because he’s afraid, so I can see some relevance to the jury hearing that.” The court thereafter instructed the jury: “For the jury’s benefit, that testimony in regards to being beaten at the jail and going to prison is allowed in for the purpose of testing the credibility or believability of the witness, Kean Thurman, not as to the defendant. It goes to the credibility or believability of Mr. Thurman.”
There is indeed precedent for the admissibility of evidence of witness intimidation. “‘Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible.’” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) And we review the trial court’s ruling on admissibility for an abuse of discretion. (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
As in our discussion of the smiling shooter, we need not labor over whether the evidence was admissible because, even if the trial court abused its discretion, the erroneous admission of the evidence was harmless beyond a reasonable doubt. Thurman did provide additional evidence that defendant was at the scene of the crime close in time to when the shooting occurred. He also painted a callous portrait of defendant as an addict still craving drugs and sex even though her brother had just been murdered. But this evidence, like the hearsay statements to the jailhouse informant, was cumulative. Defendant herself confessed to the same essential facts. She admitted to walking her brother to his death for her debt, a fact much more callous than getting a fix and some sex after he died. Because the confession itself was devastating to the defense, we find that Thurman’s fear of testifying had little, if any, impact on this jury. That is to say, any error in admitting the testimony did not prejudice defendant under even the most rigid standard of harmlessness.
IV
Instructional Error
The minor flaws in instructing the jury had the same minimal effect in this trial as any evidentiary error. Assuming, as defendant does, that either of the instructional errors constitutes federal constitutional error subject to a Chapman standard of prejudice, we conclude the failure to expand the accomplice instruction to include the hearsay declarants and to explain duress as a defense to some of the crimes were both harmless beyond a reasonable doubt.
A. Accomplice Instruction
The court properly instructed the jury that Crazy Nate was an accomplice as a matter of law. The instruction guided the jurors’ consideration of accomplice testimony as follows: “If the crimes of murder and attempted murder were committed by anyone, the witness Nathaniel Barthalamew Easlon was an accomplice as a matter of law and his testimony is subject to the rule requiring corroboration. [¶] To the extent that an accomplice gives testimony tending to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining with care and caution and in light of all the evidence in this case.” Defendant contends the trial court erred by failing to include Neto, Droopy, and Oscar in the accomplice instruction.
The Attorney General, who elsewhere insists that statements of these individuals were properly admitted hearsay, would have us dismiss defendant’s argument because none of these alleged accomplices testified at her trial. In other words, accomplices’ hearsay statements that are not made under oath do not require corroboration and need not be viewed with caution, whereas accomplice testimony at trial, and under oath, does require corroboration and must be viewed with caution. We reject such an irrational result.
Nor can we accept the Attorney General’s proposition that Crazy Nate was an accomplice as a matter of law and Neto, Droopy, and Oscar were not. All three were present at Neto’s apartment the night they planned the shooting. All three were present at the shooting. Oscar, after all, was the actual shooter, while the other two were in close proximity. Surely, if the lookout man posted some distance away who refused to shoot his friend was an accomplice as a matter of law, those who ordered and executed the shooting were as well. On this record, each member of this trio “knowingly, voluntarily, and with common intent with the principal offender unite[d] in the commission of the crime.” (People v. Jones (1967) 254 Cal.App.2d 200, 213.) As a result, the jury should have been instructed to view their statements, albeit introduced through the testimony of the jailhouse informant, with caution.
Our discussion, however, is much ado about nothing. The statements themselves had little to do with defendant. We earlier concluded the court erred in admitting the statements but the error was harmless. For all the reasons we determined that the admission of the hearsay statements was harmless error, we conclude the failure to guide the jury on evaluating accomplice testimony was equally harmless. The only testimony that pertained directly to defendant was Oscar’s remark that she started the ball rolling, a fact, as we have said repeatedly, she admitted herself. The other statements reflected typical gang behavior in sticking together and avoiding responsibility. We are convinced beyond a reasonable doubt that the expansion of the accomplice testimony to include the hearsay trio would not have changed the outcome of the jury’s deliberations.
B. Duress
The Attorney General argues that the trial court’s failure to instruct the jury on the defense of duress was not prejudicial because she did not rely on a duress defense at trial. He does not dispute defendant’s contention that there was instructional error. In fact, he summarizes compelling evidence that necessitated an instruction on duress:
“[W]hen she was interviewed on August 6, 2003, [defendant] told the police investigators that she owed money to [Neto] and [Oscar], but because she was afraid of them she told them that Stepper had taken the meth without paying for it. [Citations.] [Defendant] stated, ‘I let my brother take the fall for it.’ [Citation.] [Defendant] testified before the grand jury that [Neto] wanted her ‘to be the bait to lure [Stepper] down Oak Street [sic] so they could shoot him.’ [Citation.] [Defendant] claimed that she had agreed to lead Stepper to where [Oscar] was waiting for him on Oak Avenue because she ‘was threatened to do that. Otherwise I was going to get shot.’ [Citation.] She also asserted that she was afraid of [Neto] because he had raped her four or five times when she had declined to have sex with him.”
We agree that this evidence was sufficient to trigger a duress instruction. Section 26 provides, in pertinent part: “All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Six -- Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.”
But as the Attorney General points out, defendant did not rely on a duress defense at trial. Rather, her lawyer argued that her confession was false because the police coerced her into providing the information they wanted to hear. In the context of the case as it was actually tried, and not as it theoretically might have been, the failure to instruct was harmless. The jury would have been left to apply the instruction to elements of her confession that she herself was attempting to disclaim.
Moreover, the evidence of the type of duress necessary to sustain the defense was thin. “The defendant must show that the act was done under such threats or menaces that he had (1) an actual belief his life was threatened and (2) reasonable cause for such belief. [Citation.] . . . [¶] Duress is an effective defense only when the actor responds to an immediate and imminent danger. ‘[A] fear of future harm to one’s life does not relieve one of responsibility for the crimes he commits.’ [Citations.] The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent. ‘The unlawful acts of the person under duress are attributed to the coercing party who supplies the requisite mens rea . . . .’ [Citation.] Thus, duress negates an element of the crime charged -- the intent or capacity to commit the crime -- and the defendant need raise only a reasonable doubt that he acted in the exercise of his free will. [Citation.]” (People v. Heath (1989) 207 Cal.App.3d 892, 900 (Heath).)
The Norteños, including defendant, planned the shooting about two weeks before it was executed. Defendant therefore had plenty of time to “formulate what is a reasonable and viable course of conduct.” (Heath, supra, 207 Cal.App.3d at p. 900.) Because she had a prolonged time to consider the consequences of her participation, we conclude the instruction would not have convinced the jury to ignore the defense she presented at trial in favor of a defense of duress in which there was little evidence that she had been robbed of her ability to formulate the requisite criminal intent by the coercive conduct of her fellow gang members.
V
Cunningham Challenge
Relying on Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham) in a supplemental brief, defendant challenges the imposition of consecutive sentences, claiming the court engaged in judicial fact finding in violation of her Sixth Amendment right to a jury trial. Her contention has been soundly rejected by the California Supreme Court for the second time in People v. Black (2007) 41 Cal.4th 799 (Black II). The court explained: “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.’ ([People v. Black (2005)] 35 Cal.4th [1238,] 1264, 29 Cal.Rptr.3d 740, 113 P.3d 534.) Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, supra, 41 Cal.4th at p. 823.)
DISPOSITION
The judgment is affirmed.
We concur: ROBIE , J., BUTZ , J.