Opinion
2d Crim. No. B225733 Super. Ct. No. 2006045415
01-18-2012
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM ABEL MORALES, Defendant and Appellant.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Abraham Abel Morales appeals the judgment entered after a jury convicted him of first degree murder perpetrated by means of discharging a firearm from a motor vehicle (Pen. Code, §§ 187, 189, 190.2, subd. (a)(21)). The jury also found true the allegation that appellant personally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found that appellant had served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to life without the possibility of parole plus 27 years to life. Appellant raises claims of instructional error, prosecutorial misconduct, and ineffective assistance of counsel. We shall order the judgment modified to reflect the imposition of a $40 court security fee (§ 1465.8, subd. (a)(1)) and a $30 court facility assessment (Gov. Code, § 70373). Otherwise, we affirm.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
On July 23, 2006, William Wimbley was shot to death as he sat in his vehicle in the parking lot of a gas station on J Street and Wooley in Oxnard. Monica De Los Reyes testified that Wimbley had driven her to the gas station that day in his Chevy Cavalier along with Cindy Castro and Leticia Hernandez. De Los Reyes and Castro were standing to the left of the Cavalier when a white van pulled up next to them. Appellant was sitting in the front passenger seat, and Braulio Rush was the driver. De Los Reyes, who knew appellant, approached the open passenger seat window and introduced him to Castro. Appellant did not respond. De Los Reyes saw appellant raise a gun from his lap and fire three shots at Wimbley, who was sitting about two feet away in the driver's seat of his Cavalier. The van then sped away.
Reyes had met appellant about a month earlier while he was "shooting up" heroin. At the time of the incident, Reyes was living on the streets and using methamphetamine and alcohol. She admitted that she had paid for her drugs by engaging in theft and prostitution.
De Los Reyes called 911 and reported the incident, but did not give her name because she was scared. She also told the operator she did not know who the shooter was. She left the scene on foot before the police arrived. Two days later, the police contacted De Los Reyes after her fingerprints were found on the Cavalier. She subsequently participated in two recorded interviews and identified appellant from a six-pack photographic lineup. Rush knew appellant as "Scrappy." At the time of the incident, Rush was seeing appellant on a daily basis and either buying drugs from him or giving him rides in exchange for drugs. On the afternoon of the shooting, Rush called appellant and asked him if he needed a ride. Rush subsequently agreed to pick appellant up at appellant's cousin's house in Oxnard, which is a short drive from the gas station on J Street and Wooley. As Rush was on his way to pick up appellant, he stopped at the gas station and purchased a few dollars worth of gas. While he was at the gas station, Rush saw a white Cavalier parked between two gas pumps. Wimbley, whom Rush had never seen before, was standing next to the Cavalier. De Los Reyes and Hernandez were sitting inside the vehicle.
Rush testified while serving a prison sentence for an unrelated crime. He admitted that he had prior convictions involving moral turpitude, including a 2006 conviction for domestic violence and a conviction for passing a forged drug prescription. Rush did not want to testify against appellant and considered himself a "rat" for doing so. He did not receive any promises or benefit in exchange for his testimony.
Rush left the gas station and went to pick up appellant. Appellant came outside and his uncle, Bobby Reyes, pulled up in a black car. Appellant got into Reyes's car and told Rush to follow them. Rush followed Reyes and appellant to the gas station. Reyes pulled up and parked next to a gas pump, and Rush parked behind him. After the owner of the gas station asked Rush if he was going to buy gas, Rush backed away from the gas pumps. Appellant exited Reyes's car and sat in the front passenger seat of Rush's van.
Appellant told Rush to park by the pay phones. Rush drove over and parked to the left of Wimbley's Cavalier. De Los Reyes and Castro ran up to the front passenger door of the van and started talking to appellant through the open window. Rush heard one of the women say, "I have one of those but mine is bigger." Rush looked at appellant's lap and saw a gun wrapped in what appeared to be a black sock. Rush asked, "What the fuck are you doing?" At that point, appellant picked up the gun, pointed it out of the open window, and fired three shots at Wimbley as he sat in the driver's seat of his Cavalier two to three feet away. Rush had no idea that appellant was going to shoot Wimbley.
Appellant looked at Rush and said something like, "Get the fuck out of here. Let's jam." Rush, who was "in shock," drove off the curb and ran a red light before dropping appellant off at his cousin's house. Rush then drove home. When Rush picked appellant up in his van the next day, appellant told him he had killed Wimbley because Wimbley had "burnt his mom for an ounce of dope." Rush interrupted appellant and said, "It's better if I don't know."
On July 31, 2006, the police searched Rush's residence and found bullets that were the same caliber and were made by the same manufacturer as two spent .380 caliber casings recovered from the scene of the crime. The police also searched the residence where appellant lived with his grandmother and recovered, among other things, 24.7 grams of methamphetamine, a pack of Marlboro cigarettes and a syringe containing heroin. No gun was found. A DNA profile obtained from one of the spent shell casings recovered from the crime scene was found to match appellant's profile by a probability of one in 48 million Hispanic persons. Appellant was excluded as the source of DNA found on two bullet fragments recovered from the Cavalier.
Rush testified that he had found the bullets inside a pack of Marlboro cigarettes in the center console of his van a few weeks prior to the search. He did not own a gun and did not know who had placed the bullets in his van.
When Rush was interviewed by the police, he initially claimed he was not at the gas station or with appellant on the day of the murder. After he was arrested for possession of methamphetamine, he called his girlfriend and she encouraged him to tell the truth. At that point, Rush asked if he could speak to the detectives again. In a second recorded interview, Rush recounted what had actually happened. Rush went with the police to the gas station and showed them where the events had taken place. The police then accompanied Rush to his residence, where he gave them appellant's phone number. Rush also identified appellant, De Los Reyes, and Castro from photographic lineups.
Juan Diaz, who was working at the gas station when the murder occurred, gave testimony that corroborated that given by De Los Reyes and Rush with regard to the events that took place at the gas station that day. Diaz was unable, however, to identify appellant as the shooter.
Anthony Villa, appellant's cousin, had a history of working as a police informant. Villa had worked as a confidential informant several times since 2002, and had received benefits including early release and reduced or dropped charges. He also had prior convictions for lying to the police, possession of a deadly weapon, and theft-related crimes.
Although law enforcement had not made Villa any promises in exchange for his testimony against appellant, they had agreed to place him and his family in a witness relocation program. Villa testified that he received $225 a day for food and rent by participating in the program. He had also been placed in a housing program in which he received $1,500 a month for rent and had a $750 deposit paid.
On the day of the shooting, Villa was staying at an apartment in Oxnard where Reyes also occasionally stayed. That afternoon, Villa was watching television in a bedroom when Reyes entered, closed the blinds, and started looking out the window. Villa asked what was wrong and Reyes replied, "Mother fucken' Abel." Reyes proceeded to tell Villa about the shooting and subsequently left. Several hours later, appellant entered the bedroom appearing "panicked." Appellant paced back and forth, looked out the window, and said, "I shot that nigger."
Reyes is also Villa's uncle.
Two days later, Villa called Officer Brett Smith and said he had information about the murder at the Wooley gas station. Villa told the officer that "Abel Morales" was the shooter and gave him Rush's home telephone number. Villa had obtained the number from his sister, who was a friend of appellant's girlfriend.
On August 9, 2006, Villa gave the police additional information about the murder in a tape-recorded interview conducted following Villa's arrest for possessing heroin. During that interview, Villa said he had heard from someone that appellant was in Wimbley's car when he shot him. Villa subsequently discovered this information was inaccurate during a jailhouse conversation he had with appellant following Villa's arrest for forgery in June or July of 2007. In the course of that conversation, appellant said he was sitting in Rush's van when he "shot that nigger with the quete." Appellant told Villa that about a week prior to the shooting a man named "Cowboy" had "burned" appellant's mother for money for drugs. When appellant asked Wimbley if he knew where Cowboy was, Wimbley "got smart" with him. This made appellant mad, so he shot Wimbley through the van's open window. When asked why he had not mentioned this conversation earlier, Villa said it was because he was afraid he or his family would be harmed.
According to Reyes, "quete" is a slang term gang members use to refer to a gun.
DISCUSSION
I.
Jury Instructions on Accomplice Liability
Appellant contends the court committed prejudicial error in failing to instruct the jury on accomplice liability principles in accordance with CALCRIM No. 334. He claims the instructions were required because there was evidence from which the jury could have found that both Rush and Reyes were appellant's accomplices. We conclude that any error in failing to instruct the jury in this regard was harmless.
CALCRIM No. 334 generally provides that before the jury may consider the statement or testimony of a declarant or witness as evidence against defendant regarding the charged crime, it must decide whether the witness was an accomplice. If it decides the witness was an accomplice, it may not convict defendant based on his or her statement or testimony alone. It may use the statement or testimony only if there is other evidence independent of the accomplice's statement or testimony that tends to connect the defendant to the commission of the crime. The supporting evidence may be slight and need not be enough, by itself, to prove defendant is guilty of the charged crime or support every fact mentioned by the accomplice. The court must also instruct any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution.
Although the clerk's transcript reflects that CALCRIM No. 334 was "withdrawn," the People concede that the doctrine of invited error does not apply because there is no indication that defense counsel expressed a deliberate tactical purpose in agreeing to withdrawal of the instruction. (People v. Green (1995) 34 Cal.App.4th 165, 177.)
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A defendant may not be convicted on the testimony of an accomplice unless it is corroborated by other evidence connecting the defendant with the crime. (§ 1111.) The trial court has a sua sponte duty to instruct the jury on the law of accomplice testimony if there is evidence from which the jury could find that a witness implicating the defendant was an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.) If there is no evidence sufficient to support a finding that the witness was an accomplice, the court need not instruct on accomplice testimony. (Ibid.)
In reviewing a claim that the court erred in failing to give an accomplice instruction, we look for evidence in the record sufficient to support a conclusion by the jury that the witness was an accomplice. (People v. Gordon (1973) 10 Cal.3d 460, 468, disapproved on other grounds in People v. Ward (2005) 36 Cal.4th 186, 212.) The evidence must be substantial, not speculative. (People v. Lewis, supra, 26 Cal.4th at p. 369.) An accomplice is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.) Only a principal is an accomplice. (People v. Richardson (2008) 43 Cal.4th 959, 1023.) To be a principal, the witness must have either personally committed the crime or aided and abetted in its commission. (§ 31.) "'. . . An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense. . . .' [Citation.]" (Richardson, at p. 1023.) "It is not sufficient that he merely gives assistance with knowledge of the perpetrator's criminal purpose. [Citations.]" (People v. Sully (1991) 53 Cal.3d 1195, 1227.) He must "share[] the perpetrator's criminal purpose. [Citation.]" (Ibid.)
"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.]" (People v. Avila (2006) 38 Cal.4th 491, 562.) The evidence necessary to corroborate the testimony of an accomplice need only connect the defendant with the crime and may even be slight and entitled, standing alone, to little consideration. (People v. Williams (1997) 16 Cal.4th 635, 680-681.) It need not corroborate the accomplice on every fact and need not be sufficient to establish every element of the offenses. (Ibid.) The necessary corroboration may be supplied by testimony of another witness, or the defendant's own admissions. (Id. at p. 680.)
Appellant contends the jury could have found Rush to be an accomplice on an aiding and abetting theory based on the undisputed evidence that he accompanied him to the scene of the shooting, positioned his vehicle in a manner that facilitated the crime, and acted as the getaway driver by fleeing the scene at a high rate of speed. Appellant argues that Rush was also subject to prosecution as an aider and abettor under the natural and probable consequences doctrine because there was evidence from which the jury could have found that the shooting was a foreseeable consequence of a drug sale or an assault. He also claims that Rush demonstrated a consciousness of guilt by refusing to tell his wife what had happened, and initially lying to the police. As to Reyes, appellant points to the evidence that he drove appellant to the scene of the shooting, stayed nearby while the crime took place, and followed Rush's vehicle in fleeing immediately after the crime was completed. He asserts that Reyes also demonstrated a consciousness of guilt when he hid in the apartment where he and Villa were staying.
We reject the claim that the court had a duty to instruct on principles of accomplice liability with regard to Reyes. The evidence appellant identifies in support of the claim is simply too speculative to support the inferences for which it is offered. As to Rush, however, we agree that the instruction was warranted. Given the nature and substance of the evidence, the jury could infer that he had knowledge of appellant's criminal plan and that he specifically intended to facilitate the crime by positioning his vehicle next to Wimbley's and thereafter acting as the getaway driver. These findings would be sufficient to hold Rush liable as an aider and abettor. (People v. Richardson, supra, 43 Cal.4th at p. 1023.)
The error in failing to instruct on accomplice liability as to Rush does not entitle appellant to reversal of his conviction because his testimony was corroborated by other evidence in the record. De Los Reyes's testimony identifying appellant as the shooter was sufficient by itself to establish that fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Appellant also admitted to Villa that he had committed the crime. This evidence renders harmless any failure to give CALCRIM No. 334. (People v. Williams, supra, 16 Cal.4th at p. 680.) Moreover, the jury was instructed that in assessing the credibility of a particular witness it should consider whether the witness had been convicted of a felony, committed a crime or other misconduct, or had a personal interest in the matter. (CALCRIM Nos. 226, 316.) These instructions were sufficient to inform the jury to view Rush's testimony with care and caution, as contemplated in CALCRIM No. 334. (See People v. Lewis, supra, 26 Cal.4th at p. 371.) We presume the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 431.) Accordingly, we conclude it is not reasonably probable that appellant would have received a more favorable result if the jury had been instructed on principles of accomplice liability. (People v. Watson (1956) 46 Cal.2d 818, 837; People v. Lewis, supra, 26 Cal.4th at p. 371 [applying Watson standard of harmless error review to defendant's claim that he was prejudiced by the court's failure to instruct the jury to view an accomplice's testimony with distrust].)
II.
Prosecutorial Misconduct; Ineffective Assistance of Counsel
Appellant asserts that the prosecutor committed misconduct by eliciting evidence that Reyes, Rush, Diaz and Villa were afraid to testify. He also faults the prosecutor for eliciting evidence regarding appellant's gang membership, tattoos, and drug use. Although no objections were made below to preserve these claims, appellant asserts that no objections were necessary because (1) "the prosecutor's misconduct was so egregious that it deprived [him] of due process of law"; and (2) counsel's objections would have been futile because judicial admonitions would have been insufficient to cure the prejudice. To the extent the claims are forfeited by counsel's failure to object and thereafter seek the appropriate admonitions, appellant asserts that counsel's failure in this regard amounts to ineffective assistance of counsel.
We agree with the People that the claims are forfeited because appellant's trial attorney did not object to the prosecutor's questions or the witnesses' responses thereto, nor did he request any admonitions. (People v. Thompson (2010) 49 Cal.4th 79, 121.) Appellant's claim that no objections were necessary to preserve the claims finds no support in the record or the law. Moreover, we reject appellant's claim that his trial attorney's failure to object amounted to ineffective assistance of counsel.
In order to "establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.]" (In re Resendiz (2001) 25 Cal.4th 230, 239, abrogated on another ground in Padilla v. Kentucky (2010) - U.S. - [176 L.Ed.2d 284, 130 S.Ct. 1473, 1484].) We first address the prejudice prong of the analysis because if no prejudice is shown, we need not determine whether counsel's performance was deficient. (See Strickland v. Washington (1984) 466 U.S. 668, 697.)
Appellant fails to demonstrate that the alleged ineffective assistance of which he complains resulted in prejudice. Appellant's complaints regarding the witness's testimony that they were afraid to testify are unfounded because that testimony was admissible and relevant to the jury's assessment of their credibility. (People v. Sapp (2003) 31 Cal.4th 240, 281.) The prosecutor cannot be said to have engaged in misconduct by eliciting this admissible testimony. (See People v. Smithey (1999) 20 Cal.4th 936, 959.) Accordingly, it cannot be said that appellant was prejudiced by counsel's failure to object.
Appellant also assigns as error counsel's failure to object to the prosecutor's presentation of evidence regarding appellant's "187" tattoo, the prosecutor's reference to the tattoo on appellant's forehead that says "Run up or shut up," and the elicitation of evidence that appellant was a heroin addict. The evidence regarding appellant's tattoos was relevant to his state of mind and was also admissible to prove intent and motive. (People v. Leon (2010) 181 Cal.App.4th 452, 462; People v. Ochoa (2001) 26 Cal.4th 398, 437-438, abrogated on another point as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) The evidence regarding appellant's heroin addiction was relevant to prove appellant's identity in that it served to corroborate De Los Reyes's identification of him.
The gang evidence of which appellant complains consists of the prosecutor's comment during her opening statement that appellant had "gang tattoos" combined with his purported elicitation of (1) De Los Reyes's testimony identifying appellant based on a photograph depicting his tattoo of the word "Surenos"; (2) De Los Reyes's hearsay description of the shooter as a "homie"; (3) a testifying detective's comment that gang members use prepaid cell phones; (4) and Rush's repeated references to appellant by his gang moniker "Scrappy." "'Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]' [Citation.] Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury. [Citations.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224.)
Appellant was not charged with a gang offense or enhancement, and there was no evidence that the crime was either motivated or related to his membership in a gang. The People never explain how any evidence of appellant's gang membership was relevant to the case. Even if the evidence were relevant, the trial court must "carefully scrutinize" the evidence to determine whether it should be excluded under Evidence Code section 352. (People v. Albarran, supra, 149 Cal.App.4th at pp. 223-224.)
On this record, however, appellant cannot establish a reasonable probability that he would have achieved a more favorable result had the evidence been excluded. The gang references of which he complains were relatively brief and isolated, and appellant fails to demonstrate that timely admonitions from the court would have been insufficient to cure any harm. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.) Moreover, the evidence of appellant's guilt was overwhelming. Indeed, the weight of the evidence of guilt rendered any error in admitting the evidence harmless beyond a reasonable doubt. Accordingly, appellant's claim fails. (In re Resendiz, supra, 25 Cal.4th at p. 239; see also People v. Harris (1989) 47 Cal.3d 1047, 1083 [prosecutorial misconduct that infringes upon a defendant's constitutional rights mandates reversal unless error is harmless beyond a reasonable doubt as contemplated in Chapman v. California (1967) 386 U.S. 18]; People v. Herring (1993) 20 Cal.App.4th 1066, 1077 [prosecutorial misconduct that violates state law examined for prejudice under test in People v. Watson, supra, 46 Cal.2d at p. 836]; People v. Booker (2011) 51 Cal.4th 141, 186 [prosecutorial misconduct did not cause prejudice under Chapman or Watson when among other things "the evidence of defendant's guilt (notably, his own confession) was overwhelming"].)
III.
Fees
The People urge us to correct appellant's sentence to reflect the imposition of a $40 court security fee (§ 1465.8, subd. (a)(1)), and a $30 facility assessment fee (Gov. Code, § 70373). The People correctly note that these fees are mandatory and that the erroneous failure to impose them is subject to correction on appeal. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371 [§ 1465.8, subd. (a)(1)]; People v. Lopez (2010) 188 Cal.App.4th 474, 478-480 [Gov. Code, § 70373].) We shall order the judgment corrected accordingly.
DISPOSITION
The judgment is modified to reflect the imposition of a $40 court security fee under section 1465.8, subdivision (a)(1), and a $30 court facility assessment under Government Code section 70373. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
Rebecca S. Riley, Judge
Superior Court County of Ventura
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.