Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of San Bernardino County, Super. Ct. No. FV1800686 J. David Mazurek, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury convicted Harold Wesley Meeks of first degree murder. (Pen. Code, § 187, subd. (a).) A separate, concurrently empanelled jury convicted Virgil Wilkins of first degree murder (§ 187, subd. (a)), and of arson (§ 451, subd. (d)). The trial court sentenced Meeks to a prison term of 25 years to life. The trial court sentenced Wilkins to a prison term of 25 years to life for the first degree murder conviction plus a consecutive eight months for the arson conviction.
Further statutory references are to the Penal Code unless otherwise stated.
The prosecution also charged Meeks with arson, but dismissed the charge for strategic reasons prior to closing arguments.
On appeal, Meeks and Wilkins both contend the trial court erred by declining to instruct the jury that the prosecution's key witness was a possible accomplice to the murder. Meeks additionally contends: (1) the trial court erred by failing to sua sponte instruct the jury Wilkins was an accomplice as a matter of law; and (2) the trial court violated his right of confrontation by admitting against him certain out-of-court statements Wilkins made to sheriff's detectives.
Wilkins additionally contends: (1) the trial court erred by failing to grant his motion for a mistrial after the jury inadvertently learned he had taken a polygraph test; (2) there was insufficient evidence to support his arson conviction; (3) the prosecutor violated his privilege against self-incrimination by indirectly commenting during her closing arguments on his failure to testify; and (4) the accumulation of trial errors requires reversal of his convictions.
We conclude any errors by the trial court in failing to instruct the jury that Wilkins was an accomplice as a matter of law or admitting Wilkins's out-of-court statements were harmless. We conclude the remaining contentions lack merit. We, therefore, affirm the judgments.
BACKGROUND
I
Prosecution Evidence Presented to Both Juries
A
Discovery of the Arson and Murder
Around 8:54 p.m. on March 8, 2007, San Bernardino County firefighters responded to a report of a vehicle fire. When they arrived at the fire scene, they found a small pickup truck fully engulfed in flames parked in a drainage culvert. After they extinguished the fire, they discovered an "extremely burnt" body lying face down in the truck bed on the driver's side of the truck.
San Bernardino County Sheriff's homicide detectives found no evidence of a struggle or blood on the ground around the truck. The absence of this evidence suggested someone killed the person elsewhere, placed him in the truck bed, and drove him to the site where firefighters found the truck.
The homicide detectives determined Alberto Cervantes owned the truck, and a forensic dental examiner later determined he was the decedent. A forensic pathologist determined he died from a blunt force head injury caused by a single blow from a heavy, straight object. The forensic pathologist could not determine whether he died before the fire started.
An arson detective determined the fire was arson. The detective further determined the fire started inside the truck cab on the driver's side and spread to the truck bed. The detective opined someone used gasoline on the outside of the truck, and perhaps on the inside, to start the fire.
B
Isabel Carrasco
1
Relationship with Cervantes and Financial Consequences of His Death
Isabel Carrasco was Cervantes's ex-wife. They were married 14 years. Their divorce became final approximately six months before Cervantes's murder. Carrasco claimed she filed for divorce because Cervantes continually physically abused her. Nonetheless, for the nine-month period between when she filed for divorce and the divorce became final, she resided with Cervantes.
While married, the couple purchased two homes and four vehicles outright. As part of their divorce settlement agreement, each of them received one of the homes and two of the vehicles. One of the vehicles Cervantes received was a green Ford Excursion. He also received most of their furniture as well as valuable tools, jewelry, and a cigar collection. The titles to Carrasco's home, vehicles and bank accounts were changed to be in her name only. The titles to Cervantes's home, his Ford Excursion, and his bank account remained in both names.
Cervantes paid Carrasco $300 per month in child support, and she earned approximately $900 per month working at a warehouse grocery store. She thought she would be getting more child support from him and she asked him for more; however, he would not agree to pay her more.
According to Carrasco, she and Cervantes remained friends after their divorce. They talked on nearly a daily basis, and were sometimes intimate. At trial, she testified that, shortly before his murder, the two of them discussed reconciling and she planned to move back in with him. However, she previously told sheriff's detectives Cervantes did not want her in his life anymore and he planned to have his girlfriend move in with him.
After Cervantes's death, Carrasco received half of Cervantes's property and bank accounts. Their children received the other half. She sold Cervantes's house and used her half of the proceeds to build another house.
2
Reaction to Detectives and News of Cervantes's Death
Sheriff's detectives learned of Carrasco from one of Cervantes's neighbors. They went to Carrasco's home shortly before 1:00 a.m. the day after Cervantes's murder. One detective asked her if she knew Cervantes and she immediately started crying. The detective thought her reaction was odd since he had not yet told her the reason they were there and she had not asked them any questions.
When Carrasco learned of Cervantes's death, she did not immediately attempt to notify his family. Although she took time off work, she did not explain to her employer why she needed the time off. She also did not attend Cervantes's funeral.
3
Relationship with Wilkins and Meeks
Carrasco, Meeks, and Wilkins all worked at the same warehouse grocery store. Carrasco did not know Wilkins, except in passing; however, she acknowledged being good friends with Meeks and, after her divorce from Cervantes, she regularly babysat his daughter. She denied having a romantic relationship with Meeks.
Despite her denial, approximately a year before Cervantes's murder, which was around the time Carrasco filed for divorce from Cervantes, coworkers began suspecting the two were romantically involved. Around this same time, Meeks ended his relationship with his girlfriend, Tiffany Walton, who had been living with him. Meeks told Walton he was seeing someone else. Walton concluded Meeks was seeing Carrasco because Carrasco and Meeks were always together at work, they called each other frequently, and Carrasco avoided Walton when Walton went to their workplace. In addition, Walton drove by Cervantes's house one morning when Carrasco was still living there and saw Meeks's car parked in the driveway.
There were also other indications Carrasco and Meeks were more than good friends. Shortly before her divorce from Cervantes became final, Carrasco used her credit card to buy Meeks a motorcycle. According to Carrasco, Meeks was supposed to pay her back for it, but he never did. She also used her credit card to buy Meeks parts for his car.
The month before Cervantes's murder, Meeks and his father helped repair water damage to Carrasco's home without compensation. The month after Cervantes's murder, Meeks helped Carrasco move from her home to Cervantes's home.
After sheriff's detectives arrested Meeks, Meeks called Carrasco and asked her to pick up his car and his daughter, even though his father and sister lived in the area. When a sheriff's detective notified Carrasco that the sheriff's department had two suspects in custody for her ex-husband's murder, she displayed no emotion and did not ask any questions.
4
Carrasco's Receipt of Cervantes's "Will"
Around 2:00 a.m., two days after Cervantes's murder, Carrasco received an anonymous phone call. The caller used a prepaid cell phone sheriff's detectives could not trace. The caller told Carrasco there was an envelope in her mailbox and hung up.
Carrasco was at her father's house when she received the call. She did not immediately phone the sheriff's department. Instead, several hours later, she went to her house, checked her mailbox, and saw a white padded envelope inside. She then called one of the detectives who had come to her home the prior day. The detective told Carrasco he would be right over. According to her, he told her to put the envelope in a safe place. According to him, she told him she had taken the envelope out the mailbox and put it in her living room. He told her not to touch the envelope any more.
When the detective arrived at Carrasco's house, he put on gloves, inspected the package, and opened it. Inside it were Cervantes's keys, bankcards, wallet photos, and a typewritten letter signed with Cervantes's name. The letter stated he was involved with the wrong people and had to flee for his safety. The letter also stated he was giving all of his real and personal property to Carrasco and their children. The signature on the letter was similar to, but not exactly like Cervantes's signature. Cervantes did not have a computer or a typewriter.
At trial, Carrasco testified that, before the detective arrived, Meeks stopped by her house to drop his daughter off for her to babysit and to do some repair work on her house. She told him about the package and that she had called a sheriff's detective about it. Meeks put on gloves, pulled it out of the mailbox, and shook it in the air. He then put the package in the house on a box of tiles and left before the detective arrived. Although sheriff's detectives interviewed Carrasco several times before trial, she never mentioned Meeks's involvement with the package to them.
A criminalist checked the envelope and its contents for fingerprints. The criminalist did not find any fingerprints on any of the items.
C
Meeks
A few weeks before Cervantes's murder, Meeks telephoned a coworker from Wilkins's house. Meeks asked the coworker what kind of acid melts or burns the flesh off a person's body, and whether their employer sold any products suitable for that purpose. The next night at work, the coworker showed Meeks some products he could use. Meeks told the coworker, "Never mind. I already figured it out."
The month before Cervantes's murder, Meeks gave his landlords notice he was moving. The month after Cervantes's murder, Meeks met with his landlords. He arrived driving a green Ford Excursion.
D
Matthew Kernan
Matthew Kernan was Wilkins's friend and roommate, and Meeks's acquaintance. On the day of Cervantes's murder, Meeks called Kernan at 6:48 p.m. and asked him to take his time coming home. Kernan agreed and stayed at work with a friend for another hour and a half. The two men then drove separately to Wilkins's apartment. When Kernan arrived at the apartment, he was unable to open the garage with his garage opener. He went into the house through the front door and into the garage. The garage was in disarray and there was a large pool of dark, thick blood on the floor. Neither Wilkins nor Meeks was there.
Kernan went back into the house just as Wilkins and Meeks walked through the front door. Kernan asked them what had happened and Meeks said he had gotten into a fight with some "Mexican guys" that had been harassing him and his family. Meeks was not scratched or bleeding and did not look like he had been in a fight. Meeks asked Kernan's friend for a ride around the corner, but Kernan's friend indicated he could not give Meeks a ride and left.
Meeks then asked Kernan for a ride around the corner and Kernan agreed to give him one. Kernan went to change clothes beforehand and overheard Meeks and Wilkins discussing who was going to go with Kernan. Meeks wanted Wilkins to go because Wilkins ran faster, but Wilkins would not go. As Kernan came out of his room, he heard Meeks ask Wilkins, "Where's the lighter?" Wilkins told Meeks the lighter was in the kitchen. Meeks grabbed the lighter and a black bag and left with Kernan. Meanwhile, Wilkins cleaned up the garage.
Kernan took Meeks to an area near where firefighters found Cervantes's truck ablaze. Meeks hopped out of the car and ran behind it. A minute later Kernan saw the light of a fire in the distance. Meeks ran back, hopped into the car and aggressively told Kernan to "drive, drive, drive, drive."
Kernan drove away and headed back toward Wilkins's apartment. As he was about to turn onto the street leading there, Meeks told him to go straight. He complied and drove to a nearby shopping center. At Meeks's direction, he stopped in front of a coffeehouse. Meeks got out of the car and used a payphone, even though he had a cell phone in his hand that he had been flipping open and closed.
After Meeks finished his call, he got back into the car and Kernan drove out of the shopping center. At Meeks's direction, he stopped in front of some trash dumpsters. Meeks opened the door, leaned out, and tossed the cell phone into the dumpster. Kernan then drove Meeks back to Wilkins's apartment.
When they went inside the apartment, Kernan noticed some large black trash bags near the entrance. Meeks went over to the garage, which Wilkins was cleaning with the garden hose, and told Wilkins about lighting the fire. Meeks said, "I went around - I went around the back and tried to light it and it wouldn't light, so I went around the front and it lit real quick. It lit real quick."
Twenty to 30 minutes later, either Wilkins or Meeks yelled out to Kernan that they were leaving. Kernan showered and changed for a nightclub outing the three men had previously planned. He called and got directions to Meeks's house and then drove there. Before leaving, Kernan looked in the garage. Although the floor was a little wet, everything was back in order. He also noticed the black trash bags that had been sitting at the entrance of the apartment were gone.
On the way to the nightclub, Meeks bragged about the fight and said he hurt his hand when he punched the guy. He also said "the guy was a bleeder." Wilkins agreed with Meeks, which suggested to Kernan that Wilkins was present when the fight occurred.
The three men returned home from the nightclub early the next morning. After Kernan and Wilkins dropped Meeks off at his house, Wilkins said he would tell Kernan what had happened another time. He said he did not want to tell Kernan what happened then to protect Kernan.
E
Wilkins
Wilkins told a sheriff's detective he called Cervantes at 6:45 p.m. on the day of the murder and set up a meeting with him. He spoke with Cervantes at 7:18 p.m. the same day and gave Cervantes directions to the meeting location. The two men met a short time later in an alleyway near a fast food restaurant and carwash a few hundred feet from Wilkins's apartment.
Wilkins moved shortly after Cervantes's murder. Sheriff's detectives searched Wilkins's new home. They found a newspaper article about the murder in Wilkins's dresser underneath his clothing.
F
Cell Phone Records
Cell phones records indicate that, at 6:13 p.m. on the day of Cervantes's murder, Meeks called Wilkins. At 6:28 p.m., Meeks called Kernan. Both calls were transmitted from a cell phone tower near Wilkins's apartment.
At 6:41 p.m., Wilkins called Cervantes. The call was transmitted from a cell phone tower near Wilkins's apartment and received from a cell phone tower near Cervantes's home.
At 6:48 p.m., Meeks called Kernan again. The call was transmitted from a cell phone tower near Wilkins's home.
At around 7:18 p.m., Cervantes called Wilkins. The call was transmitted and received from cell phone towers near Wilkins's apartment.
At 8:18 p.m., Meeks called Wilkins. The call was transmitted from a cell phone tower near where firefighters found Cervantes's body and was received from a cell phone tower near Wilkins's apartment.
At 8:26 p.m., Meeks called Wilkins again. The call was transmitted from a cell tower some distance from where firefighters found Cervantes's body. The change in transmission towers indicates either that Meeks's location changed, or that the cell tower which transmitted the preceding call became overloaded or otherwise lacked the capacity to handle the call.
For approximately the next 90 minutes, the calls received by Wilkins all utilized the cell phone tower closest to his apartment, suggesting Wilkins was not moving or was moving within the same coverage area during that time.
At 8:26, 8:28, 8:33, and 8:58 p.m., Carrasco called Cervantes and left voice mail messages for him.
At 9:05 p.m., Meeks called Carrasco twice. He called her again at 9:06 p.m. All three calls were transmitted from a cell phone tower near Wilkins's apartment.
At 9:06 p.m., Carrasco called Meeks. Meeks received the call from a cell phone tower 10 to 12 miles from the cell phone tower that transmitted the immediately preceding calls from him to her. The call was likely received from this tower because it provides gap coverage for a closer tower and not because Meeks had changed locations.
At 9:09, twice at 9:10, and again at 9:11 p.m. Carrasco called Cervantes. Carrasco testified that each of these calls was picked up, but she did not speak to anyone. She said someone hung up the last call or it was dropped.
Meeks called Carrasco once more that evening at 10:27 p.m. He called her four times the following morning: once at 9:33 a.m. and three times at 9:42 a.m.
Two days later, approximately an hour before Carrasco received the anonymous phone call advising her of the package in her mailbox, Wilkins transmitted a message to Meeks. The message read, "He got the package."
II
Prosecution Evidence Before the Wilkins Jury Only
A
Wilkins
Approximately a month after Cervantes's murder, Wilkins spoke with sheriff's detectives. He told them he had known Meeks for about a year. They met at the warehouse grocery store where they both worked, and Meeks later started helping with Wilkins's clothing business. Wilkins knew Carrasco worked at the warehouse grocery store as a cashier, but he rarely saw her. He knew Carrasco and Meeks talked at work, but he did not know anything about their personal lives.
Wilkins initially denied knowing Cervantes or being involved in Cervantes's murder. Later in the interview, Wilkins told the detectives he called Cervantes because he needed some construction work done for an upcoming business project and he wanted to find out what Cervantes could do. He said he set up a meeting with Cervantes, but the two never actually met.
Eventually Wilkins admitted being involved in the murder. He told the detectives he and Meeks discussed it three or four times beforehand. Meeks told Wilkins that Cervantes had cheated Meeks's uncle. Meek also said Cervantes owed him money and the two had had a prior confrontation over money or a woman. Meeks wanted to get some money, a car, furniture, and other property from Cervantes's house.
Meeks explained the plan was to get Cervantes to sign a letter leaving his property to his ex-wife. Meeks would then get the car, furniture, and property from Cervantes's ex-wife. Meeks told Wilkins he would share some of what he received with Wilkins if Wilkins helped him out.
The plan included getting someone to call the ex-wife about the letter; however, Wilkins claimed he did not know who made the call or who dropped off the letter. He also claimed he did not know Carrasco was Cervantes's ex-wife and the letter was meant for her.
On the day of the murder, Meeks went to Wilkins's apartment and gave Wilkins Cervantes's cell phone number. Wilkins called Cervantes and arranged a meeting. Meeks and Wilkins arrived at the meeting location before Cervantes. Meeks was carrying a shoulder pack containing thick black tape and a small can of a premixed flammable substance. Wilkins said he did not realize Meeks intended to burn Cervantes's body until he saw the can with the flammable substance.
When Cervantes arrived, Meeks hid. After shaking hands with Cervantes, Wilkins told Cervantes he lived nearby and they started walking toward Wilkins's apartment. As they walked past Meeks's hiding place, Meeks jumped out from behind the wall and hit Cervantes with an unknown object. Once Cervantes was on the ground, Meeks taped Cervantes's mouth and hands with the thick black tape. Wilkins then held Cervantes down as Meeks repeatedly punched and kicked Cervantes to get him to reveal his home alarm or safe code. As Cervantes lay on the ground barely conscious and bleeding, Meeks took Cervantes's keys and brought Cervantes's truck over. The two of them loaded Cervantes into the truck, and Meeks drove the truck away.
Wilkins grabbed Meeks's shoulder pack, covered up the blood on the ground, went to his apartment, and took a shower. While Wilkins was showering, Meeks arrived at Wilkins's apartment out of breath, as if he had been running. Meeks told Wilkins that Cervantes had signed the letter. He showed Wilkins a white envelope containing the signed letter and Cervantes's keys. He told Wilkins he burned Cervantes and his truck.
A short time later, Wilkins's roommate, Kernan, arrived at the apartment. The three men went to a nightclub and returned to the apartment early the next morning.
B
Kernan
A month after Cervantes's murder, Wilkins told Kernan what had happened. Wilkins said Meeks asked him more than once to call Cervantes and have Cervantes come to Wilkins's apartment to discuss doing a construction or building project. Wilkins told Kernan that Cervantes was harassing Meeks and his family and owed Meeks's family some money. When Cervantes got to the apartment, Meeks came out and hit Cervantes. Then, Meeks and Wilkins dragged Cervantes into the garage and started hitting Cervantes's face and body. Cervantes fought back, which is how the garage was wrecked. Wilkins said he knew in advance Meeks was going to attack Cervantes and he helped by holding Cervantes down and by putting him in the truck.
III
Prosecution Evidence Before Meeks Jury Only
While sheriff's detectives were at Wilkins's home arresting him, Meeks phoned Wilkins. Wilkins told Meeks he was about to go to jail and that the detectives "basically know everything." Meeks deflected Wilkins's announcement instead of reacting or responding directly to it.
IV
Defense Evidence
A
Meeks
Meeks did not present any evidence.
B
Wilkins
Dr. Mark Costanzo, an expert in false confessions, described the characteristics of confessors and of interrogations that could produce false confessions. He did not give an opinion about whether Wilkins falsely confessed.
Wilkins's mother testified that Wilkins owned a clothing business and some construction was going to be done at the family's restaurant for a business project Wilkins was planning.
DISCUSSION
I
Accomplice Testimony Instructional Error Claims
A
Kernan
Meeks and Wilkins both requested the trial court to instruct the jury that Kernan was a possible accomplice to the murder. The court denied the request, finding there was insufficient evidentiary support for it. Meeks and Wilkins contend the trial court prejudicially erred in denying their request. We conclude there is no merit to this contention.
A conviction may not be based upon the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime. (§ 1111.) A person is an accomplice if the person is subject to prosecution for the identical crime charged against the defendant. (Ibid.) The person must act with knowledge of the perpetrator's criminal purpose and the intent to encourage or facilitate the commission of the crime. (People v. Carrington (2009) 47 Cal.4th 145, 191.)
" 'If there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony. [Citation.] But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. [Citation.]' " (People v. Lewis (2001) 26 Cal.4th 334, 369; accord, People v. Carrington, supra, 47 Cal.4th at p. 191.)
During the investigation, Kernan and Wilkins gave conflicting statements to sheriff's detectives. Some of their early statements suggested Kernan may have been at Wilkins's apartment at the time of the murder and Kernan may have loaned Wilkins his car to meet Cervantes. In addition, the forensic pathologist testified Cervantes might have been alive when Kernan drove Meeks to the location near the truck fire. Meeks and Wilkins contend a jury could have reasonably found from this evidence that Kernan was an accomplice to the murder. We disagree.
If believed, the most this evidence shows is that Kernan may have assisted Meeks and Wilkins. This evidence does not show Kernan shared their criminal purpose and any such inference would be speculative, particularly as there is no evidence Kernan participated in the planning of the crime or that he had a motive to harm Cervantes. "Providing assistance without sharing the perpetrator's purpose and intent is insufficient to establish that a person is an accomplice." (People v. Carrington, supra, 47 Cal.4th at p. 191.) Although this evidence may be sufficient to establish Kernan was an accessory to Cervantes's murder, an accessory is not an accomplice because an accessory is not subject to prosecution for the identical crime charged against a defendant. (People v. Horton (1995) 11 Cal.4th 1068, 1114; People v. Snyder (2003) 112 Cal.App.4th 1200, 1220.) Therefore, we conclude the trial court did not err in declining to instruct the jury that Kernan was a possible accomplice to the murder.
Even if the trial court had erred, the error was harmless. "A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.' [Citation.] To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence, ' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' "[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citation.]' " (People v. Avila (2006) 38 Cal.4th 491, 563.)
Here, the cell phone records introduced into evidence track Kernan's testimony regarding the sequence of events, their location, and the participants' roles. The cell phone records tend to implicate Meeks and Wilkins in Cervantes's murder and relate to the elements of malice aforethought, willfulness and premeditation, and lying in wait. Accordingly, the cell phone records sufficiently corroborate Kernan's testimony to preclude any prejudicial harm to Meeks or Wilkins from the trial court's failure to instruct the jury that Kernan was a possible accomplice to Cervantes's murder.
B
Wilkins
Meeks's counsel requested the trial court to instruct the jury that Wilkins was a possible accomplice to Cervantes's murder. The trial court granted the request and instructed the jury accordingly. Although Meeks's counsel did not request the trial court to instruct the jury Wilkins was an accomplice as a matter of law, he contends on appeal the trial court erred by failing to do so sua sponte. We conclude any error was harmless.
As previously discussed, if there is evidence from which a jury could find a person is an accomplice, the trial court must sua sponte instruct the jury on the law governing accomplice testimony. (People v. Tobias (2001) 25 Cal.4th 327, 331.) Although Wilkins did not testify, accomplice testimony includes out-of-court statements made during police questioning, such as Wilkins's out-of-court statements the prosecution introduced against Meeks. (People v. Carrington, supra, 47 Cal.4th at pp. 190-191; People v. Williams (1997) 16 Cal.4th 153, 245.)
If the parties dispute whether a witness is an accomplice, the trial court gives the CALCRIM No. 334 instruction. (Bench Notes to CALCRIM No. 334 (2009-2010) p. 110; Bench Notes to CALCRIM No. 335 (2009-2010) p. 116.) This instruction informs the jury how to determine whether a person is an accomplice and what the prerequisites are for using the person's testimony if the person is an accomplice. (CALCRIM No. 334.) In addition, the instruction informs the jury it should view accomplice testimony with caution, but may not arbitrarily disregard it. (Ibid.) The instruction also informs the jury that the defendant has the burden of proving a person is more likely than not an accomplice. (Ibid.)
If the parties agree a witness is an accomplice, or the trial court determines a witness is an accomplice as a matter of law, the trial court gives the CALCRIM No. 335 instruction. (Bench Notes to CALCRIM No. 334 (2009-2010) p. 110; Bench Notes to CALCRIM No. 335 (2009-2010) p. 116.) This instruction is similar to the CALCRIM No. 334 instruction except that it omits the information explaining how to determine whether a person is an accomplice and who has the burden of proving a person is an accomplice. (CALCRIM No. 335.)
Because the parties in this case did not dispute that Wilkins was Meeks's accomplice, the trial court could have given the CALCRIM No. 335 instruction. (People v. Avila, supra, 38 Cal.4th at p. 562.) The trial court's failure to do so, however, did not prejudice Meeks. The only substantive difference between the two instructions was the information regarding who is an accomplice and who has the burden of proving a person is an accomplice. The unnecessary provision of this information to Meeks's jury did not disadvantage Meeks because the prosecutor conceded Wilkins was an accomplice in her closing arguments. In addition, the state of the evidence was such that the jury had to have found Wilkins was an accomplice in order to convict Meeks of murder.
Moreover, as previously discussed, an error in instructing on accomplice liability is harmless if there is sufficient corroborating evidence in the record. (People v. Avila, supra, 38 Cal.4th at p. 563.) Both the cell phone records and Kernan's testimony corroborate Wilkins's testimony, tend to implicate Meeks in Cervantes's murder, and relate to all elements of first degree murder. Therefore, we conclude Meeks was not harmed by the trial court's failure to instruct the jury that Wilkins was an accomplice to Cervantes's murder as a matter of law.
II
Confrontation Clause Error Claim
Wilkins's out-of-court statements admitted against Meeks were that: (1) Wilkins called Cervantes at 6:45 p.m. on the day of the murder and set up a meeting with him; (2) Wilkins spoke with Cervantes at 7:18 p.m. that same day and gave Cervantes directions to the meeting location; and (3) Wilkins and Cervantes met a short time later in an alleyway near a fast food restaurant and carwash a few hundred feet from Wilkins's apartment. As he did below, Meeks contends the admission of these statements violated his constitutional right of confrontation as explained in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
The People argue the admission of statements does not violate Crawford because the statements were not offered for their truth. The People acknowledge, however, the trial court did not give an instruction limiting the use of the statements. The People also acknowledge the prosecutor argued to Meeks's jury that she thought the sequence of events leading to Cervantes's murder was that Wilkins met Cervantes in the alley, the two went over to Wilkins's house, and Meeks attacked Cervantes. These arguments, coupled with the lack of a limiting instruction, indicate the prosecutor, in fact, offered the statements for their truth.
The People concede the admission of the statements violated Crawford if the statements were offered for their truth. Nonetheless, the People argue any error in admitting the statements was harmless beyond a reasonable doubt. We agree.
"Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24. [Citation.] 'Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' [Citation.] The harmless error inquiry asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' " (People v. Geier (2007) 41 Cal.4th 555, 608.) The inquiry requires consideration of "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)
Here, Wilkins's out-of court statements added little to the prosecution's case against Meeks. The jury knew from the cell phone evidence that Wilkins was the last person to talk to Cervantes before he died and that Cervantes was near Wilkins's home when they last spoke. The jury also knew from Kernan's testimony that at least some of the significant events leading to Cervantes's death occurred in Wilkins's garage. Kernan's recounting of events along with the cell phone records, the evidence of Meeks's close relationship with Carrasco, the evidence of Meeks's research into body disposal methods, and the evidence of Carrasco's and Meeks's postmurder conduct created a strong case against Meeks. Meeks's defense counsel had the opportunity to thoroughly cross-examine Kernan and the other witnesses who provided evidence against Meeks. Therefore, we conclude it is clear beyond a reasonable doubt that a rational jury would have found Meeks guilty even if the trial court had excluded Wilkins's out-of-court statements.
III
Polygraph Disclosure Claim
A
Before Wilkins's confessed his involvement in Cervantes's murder, a polygraph examiner interviewed him. The trial court permitted the parties to use the interview, provided they redacted references to the nature of the interview. The prosecutor decided to use the interview and, before playing an audiotape of it, she distributed transcripts of it to Wilkins's jury. Less than a minute after the jury received the transcript, the court noticed the header of the transcript indicated the interview was a polygraph examination. The court promptly collected the transcripts, excused the jury, and met with counsel to discuss the matter. Wilkins's defense counsel immediately moved for a mistrial.
The court polled the jury to determine if any jurors had actually read the header. Six jurors indicated they had read the header. One juror could not remember the contents of header and nothing about it stood out to the juror. Three jurors read part of the header, but the not the small print where the word "polygraph" appeared. The other two jurors, Juror No. 2 and Juror No. 9, both read and noted the word "polygraph" in the header.
Juror No. 2 indicated the header would not affect the juror's consideration of the interview. The juror also indicated the juror could follow the court's instruction to disregard the header. The court instructed the juror not to discuss the header with anyone and to pretend the juror had not seen it.
The court asked Juror No. 9 whether the juror could follow an instruction "not to consider that for any purpose, not to let that enter your deliberation." The juror replied, "Do the best we can, yes." The court and prosecutor then simultaneously asked whether the juror could refrain from discussing the matter with other jurors and the juror replied, "Yes, I can do that."
Still concerned, Wilkins's defense counsel pressed the juror, "Do you think you can do it - you said, 'The best we can.' " The juror replied, "Yes. It's in my head but I will try to." Defense counsel continued, "You understand what you're seeing here is not the polygraph. The polygraph has been taken out of this transcript." The juror replied, "Okay. I understand that." The juror then volunteered, "And I won't talk to anybody." The juror also agreed not to guess what the results of the polygraph examination might have been and not to consider the fact of the polygraph during deliberations.
After concluding its inquiry, the trial court denied the motion for mistrial. The court found a mistrial was not warranted as only two jurors had seen the word "polygraph, " both said they could keep it out of their minds and not consider it, and even if the jurors knew Wilkins had taken and failed a polygraph, the information was consistent with Wilkins's false confession defense.
Wilkins contends the disclosure of the polygraph information requires reversal of his convictions. We disagree.
B
"We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] 'A motion for mistrial is directed to the sound discretion of the trial court.... "[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (People v. Cox (2003) 30 Cal.4th 916, 953 (Cox), disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) No abuse of discretion occurred in this case.
Generally, when polygraph evidence is erroneously offered, a trial court's timely admonition, which the jury is presumed to have followed, cures any resulting prejudice. (Cox, supra, 30 Cal.4th at p. 953.) In Cox, the prosecutor asked a key witness whether someone from the prosecutor's office had given her a polygraph examination and the witness responded affirmatively. (Id. at p. 951.) Defense counsel objected to the question. The trial court sustained the objection and struck the witness's answer. The trial court also admonished the jury to disregard the information. Defense counsel subsequently moved for a mistrial, which the trial court denied. (Ibid.)
On appeal, the defendant argued the trial court erred in denying the mistrial motion because the court's admonition did not cure the prejudicial impact of the question. (Cox, supra, 30 Cal.4th at p. 952.) The California Supreme Court rejected the argument, concluding a mistrial was not warranted as there was only one improper question, the trial court immediately struck it, and the trial court gave the jury a strong admonition to disregard it. (Id. at p. 954.)
The disclosure of the polygraph information in this case was no more egregious than in Cox. The prosecutor did not intentionally introduce any polygraph information. Instead, the word "polygraph" inadvertently appeared in small print in the header of a transcript distributed to the jurors. As in Cox, the trial court promptly addressed the matter. The trial court noticed the error within 30 seconds and quickly had the jurors return the transcripts. During the brief time the jury possessed the transcript, only six jurors had read the header and only two of them had noticed the word "polygraph." Both indicated they could disregard the information, and the trial court specifically admonished them not to discuss the information with the other jurors or to consider it during their deliberations. Accordingly, we conclude, as the California Supreme Court did in Cox, a mistrial was not warranted under the circumstances.
IV
Insufficient Evidence of Arson Claim
Wilkins contends there was insufficient evidence to support his conviction for arson. More particularly, he contends there was insufficient evidence he knew Meeks intended to burn the truck with Cervantes's body in it or that he acted intending to facilitate Meeks's actions.
"Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.]' [Citation.] ' "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citations.]" ' " (People v. Solomon (2010) 49 Cal.4th 792, 811.)
Here, the prosecution presented evidence that Meeks and Wilkins planned Cervantes's murder in advance. Their planning included such intricate details as the preparation and anonymous delivery of Cervantes's "will" to Carrasco. Their planning also included how to dispose of Cervantes's body as, a few weeks before the murder, Meeks called a coworker from Wilkins's home to ask what chemicals he could purchase from their employer to use to burn flesh off of a body. When the coworker showed him the chemicals the next day, Meeks told the coworker he had already figured it out. Wilkins admitted to sheriff's detectives he knew Meeks intended to burn Cervantes's body when Meeks arrived at his apartment with a premixed container of flammable liquid. Rather than decline further participation in the planned attack, Wilkins set up the meeting with Cervantes, met him, lured him past Meeks's hiding spot, and helped Meeks subdue him and load him into the truck. He then cleaned up the attack site, discussed with Meeks who should go with Kernan to the arson site, and told Meeks where he could find a lighter.
A jury could reasonably infer from this evidence that Wilkins knew of Meeks's purpose and acted with the intent to facilitate Meeks's actions. Accordingly, we conclude there is substantial evidence to support Wilkins's arson conviction.
V
Griffin Error Claim
In her closing arguments, in the context of arguing that aider and abettor culpability did not require her to prove who did what to Cervantes, the prosecutor stated, "Sometimes we may never know who did everything, particularly when you got defendants who are lying about what their involvement is. But I know [Wilkins is] involved. You can see that he's involved. You know he's involved based on his own statements and based on all the other evidence that we know he's involved in this crime. Whether he's the one that dealt the final blow, that's a question I'll never be able to answer for you 'cause we just don't know." Wilkins contends the prosecutor's remarks require reversal of his conviction because they constitute an indirect comment on his failure to testify in violation of Griffin v. California (1965) 380 U.S. 609, 615 (Griffin). We conclude there is no merit to this contention.
"[Griffin] prohibits reference to a defendant's failure to take the stand in his own defense. [Citation.] However, the Griffin rule ' " 'does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses' " ' and a prosecutor's allusion to the defense's failure to present exculpatory evidence 'does not ordinarily violate Griffin or erroneously imply that the defendant bears a burden of proof [citations].' " (People v. Smith (2009) 179 Cal.App.4th 986, 1007.) Here, the challenged remarks, considered in their context, were comments on the state of evidence as it related to the prosecution's burden of proving aider and abettor culpability. Such remarks do not violate Griffin. (People v. Stewart (2004) 33 Cal.4th 425, 505-506; People v. Medina (1995) 11 Cal.4th 694, 756.)
Even if the prosecutor's remarks had violated Griffin, the remarks were harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Hardy (1992) 2 Cal.4th 86, 154.) The evidence against Wilkins, including his own admissions, the testimony of Kernan, and the corroborating cell phone records, was overwhelming. Accordingly, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty absent the remarks. (People v. Hardy, at p. 154.) In view of our conclusion, we need not address the People's forfeiture argument or Wilkins's related argument that his defense counsel provided ineffective assistance by failing to object to the prosecutor's comments.
VI
Cumulative Error Claim
Wilkins contends the accumulation of errors in his case warrants reversal of his convictions. We reject this claim as we conclude there were no errors that separately or cumulatively affected the jury's verdict. (See People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The judgments are affirmed.
WE CONCUR: McINTYRE, J., IRION, J.