Opinion
B222962
09-01-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ISIDRO NUNEZ, Defendant and Appellant.
Edward J. Haggerty, 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, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA068856)
APPEAL from a judgment of the Superior Court of Los Angeles County. Steven R. Van Sicklen, Judge. Affirmed; remanded with directions.
Edward J. Haggerty, 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, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Daniel Isidro Nunez appeals from the judgment following a trial by jury in which he was convicted of first degree murder (Pen. Code, § 187, subd. (a)) (count 1) and kidnapping (§ 207, subd. (a)) (count 2). As to count 1, the jury found true the special circumstance that the murder was committed while appellant and his codefendant were engaged in the commission of kidnapping (§ 190.2, subd. (a)(17)). As to both counts, the jury found true the allegations that a principal was armed with a firearm (§ 12022, subd. (a)). Appellant waived his right to a jury trial regarding allegations that he had suffered a serious or violent felony conviction for assault and a prior prison term for assault. Following a bench trial, the court found appellant had suffered a prior serious felony conviction for assault within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivision (a)(1) and (b) through (i). The court struck the prior prison term allegations made pursuant to section 667.5, subdivision (b), after the prosecution elected not to proceed on these allegations.
All statutory references shall be to the Penal Code unless otherwise noted.
The jury was deadlocked 11 to one, and a mistrial was declared, on the same charges against appellant's codefendant and cousin Rudy Tafoya.
On count 1, appellant was sentenced to life in prison without the possibility of parole based on the jury's true finding of the kidnapping special circumstance. On count 2, appellant was sentenced to a total of 22 years in state prison, consisting of the upper term of eight years, which was doubled under the "Three Strikes" law (§ 1170.1, subds. (a)-(d)), plus a one-year firearm enhancement (§ 12022, subd. (a)(1)), and a five-year serious felony enhancement (§ 667, subd. (a)). Appellant received presentence custody credit of 924 actual days, but no conduct credit for good time/work time. He was ordered to pay a $10,000 restitution fine, as well as fees and assessments.
On appeal, appellant contends the trial court committed reversible error regarding jury selection, admission of evidence, jury instructions, and sentencing. He also raises a constitutional challenge to the kidnapping special circumstance statute (§ 190.2, subd. (a)(17)). We affirm.
FACTS
Prosecution Case
A. Prior Drive-By Shooting and Investigation
On January 19, 2007, about a week before the crimes at issue here took place, a green Toyota Camry that appellant often drove was involved in a drive-by shooting at Neptune Liquor Store on Pacific Coast Highway in Wilmington. A Kia Sportage SUV was leaving the parking lot, then reversed to make way for the Camry to enter the lot. Tafoya was a passenger in the Camry; there was no clear view of the driver. Brent Bailey, one of the three occupants in the Kia, testified that he could not recall whether a verbal exchange had taken place between the occupants of the vehicles. As the Kia left the parking lot, the Camry made a U-turn and started following the Kia around the block. Bailey saw Tafoya lift a gun to the top of the Camry's window. Tafoya fired several times at the Kia, shattering the rear window and leaving holes in the upholstery, including just above where Bailey's head had been resting. The Kia came to a stop at the liquor store, and the three occupants went inside the store to confirm they were not injured. A witness in the area at the time heard several gunshots. When he looked up, he saw a black or dark green Camry speeding away with two Hispanic males inside.
That same day, around 5:07 p.m., Los Angeles Police Department Officers Ron Quentin and Gabriel Roybal were in a marked patrol car stopped at a red light in the area of Neptune and Pacific Coast Highway, when they heard six loud gunshots. Officer Quentin, who was driving, ran the red light and drove toward the area of the shots. Within 35 seconds of the last shot, a male Hispanic flagged down the patrol car by "waving his hands back and forth like in a jumping jack motion, very excited." Both officers had their windows rolled down and the man handed Officer Quentin a napkin, on which was written in pen the license plate number 4SKM025. The man's demeanor was "very excited. Irate. Eyes wide open. . . . Hand was shaking actually literally when he gave [the officer] the napkin." Neither officer directed the man to write anything down nor questioned him. Officer Quentin immediately broadcast the shooting, and Officer Roybal ran the license plate number. The officers were unaware "if any victims were down." Their "main focus" was whether anyone was injured and whether they could locate the vehicle. They drove around the block. When they returned to the location where the man had flagged them down, he was gone. That same day, six shell casings were recovered from the area of the liquor store shooting.
On January 23, 2007, police obtained surveillance videotape from the owner of Neptune Liquor Store taken on the day of the shooting. The videotape showed both the Kia and the Camry and the last three digits (025) of the Camry's license plate number. Records from the Department of Motor Vehicles (DMV) revealed that the registered owner of the Camry was appellant's mother, Audelia Birosel, who lived in San Pedro. On February 1, 2007, a search warrant was executed at her residence and the Camry was impounded.
On February 19, 2007, detectives interviewed appellant's mother in both Spanish and English and tape-recorded the interview. Birosel stated that she had given the Camry to appellant in October 2006, and that the possessions in the Camry belonged to appellant or his girlfriend Renee Castaneda. Birosel did not know appellant's whereabouts.
B. Appellant and the Victim
On January 29, 2007, the homicide and kidnapping victim in this case, Jesus Payan, told his former longtime girlfriend that on the following day he was going to Gardena to help appellant move. On January 30, 2007, Payan's neighbor, Rosalie Salavea, saw Payan exit the front passenger door of a light blue Ford Expedition. He asked her for some cigarettes and told her he was going to Gardena to help friends move. He returned to the Expedition, in which there were three other occupants, and left.
Shortly before January 30, 2007, Salavea was outside her residence smoking a cigarette with her sister when a Camry, being driven by appellant with Tafoya as a passenger, pulled up. Appellant and Tafoya thanked the women because Salavea's sister had appeared at court for their uncle. On another occasion, within two weeks of Payan's murder, his daughter Myrna Payan and Salavea were walking toward a friend's house when the Camry backed up, collided with a trash can, and almost hit Myrna. Myrna told detectives that appellant and Tafoya were in the Camry during this incident.
Robert Sedano, a friend of Payan, told detectives that on January 30, 2007 he saw Payan, who appeared distraught and sad. Payan told Sedano that he was helping a man move. At the time of trial, Sedano was serving time for grand theft of an automobile, and denied telling detectives that he had seen Payan on January 30, 2007.
Regina Reyes, another friend of Payan, who was testifying under a grant of immunity as to any drug use or possession, testified that on January 30, 2007 she called appellant to ask for methamphetamine. Appellant told her he was in Gardena moving out of his house. That night around 10:50 p.m. Reyes went to appellant's house hoping to get some methamphetamine. She took moving boxes, clear plastic packing or sealing tape, and markers. When she arrived, appellant and Tafoya were there, and the house was mostly empty. Reyes stayed for about an hour to an hour and a half. Around midnight, Payan arrived with another man carrying beer. Reyes was not expecting to see Payan. All five of them sat in the living room and talked. At some point, Reyes went into the bathroom and used some methamphetamine that was in lines on a plate. She saw some of the others go into the bathroom at different times. When she returned to the living room, the other four men were talking, and Reyes spent about 15 to 20 minutes with Payan. She did not see any altercations between any of the men. Payan left before Reyes did with the man with whom he had arrived. He said they would be back. Payan did not appear to be drunk or erratic to Reyes. Reyes left appellant's house between midnight and 2:00 a.m.
On January 31, 2007, at 12:22 a.m., Payan left a message on his former girlfriend's cell phone asking her to lock his van and stating that he was in Gardena with appellant.
On January 30, 2007, Mayra Moran and minor Christine S. went to "somebody's house." When they arrived, appellant was there with a "dark, bald and skinny" guy, whom Moran thought might be Christine S.'s boyfriend. The parties stipulated that in February 2007, Tafoya had a thin build. Moran was intoxicated, having consumed alcohol and methamphetamine before arriving, and recalled passing out more than once that night. She testified that she did not recall seeing Payan that night. Detectives interviewed Moran twice about that night. She indicated that someone was placed in the cargo compartment of an SUV, and that appellant ordered her and Christine S. to get inside the SUV and wait. Moran did not see the man in the back, but she heard him moaning and groaning. Appellant and his companion got in and appellant started driving. Loud music was playing, and the SUV eventually came to a stop at a dirt road turnout. The two men got out of the SUV and took the man out of the back of the SUV. Moran heard two gunshots. She told the detectives she was "weirded out because of what happened." The two men got back inside the SUV and did not say anything. Moran woke up in her own bed, but did not remember how she got home.
Moran had felony convictions and testified under a grant of immunity. Christine S. refused to testify at trial.
Portions of the recorded interviews were played for the jury, and the jury received the written transcript.
C. Discovery of the Body and Investigation
On January 31, 2007, between 5:00 a.m. and 6:00 a.m., a witness in Rancho Palos Verdes heard two gunshots coming from the area of the nearby archery range and turnout area, and called the police. Around 7:15 a.m. that same day, another witness drove to a nearby fire station and reported that he had seen a dead body on the side of the road in the same location. Five minutes later, firefighters went to the archery range and turnout area and saw Payan's dead body lying face down in the dirt beneath a heavy chain gate. His wrists were bound behind his back with clear packing tape, and his ankles were bound with silver duct tape and clear packing tape. A small flashlight was tucked between his ankles. There were two gunshot wounds to the head—both shots entered the back of the head and exited the front. The evidence showed that the shootings were done "execution style" and in rapid succession. There were other fresh injuries and abrasions on Payan's body that appeared to have been sustained in the prior 12 to 24 hours. A toxicology test showed that Payan had methamphetamine in his system.
Throughout the day police officers and various criminal specialists arrived at the scene, examining the body, taking photographs and measurements, and making casts of tire impressions and shoe prints. Because it had rained the prior night, the ground was damp and the tire and shoe prints were fresh. Casts of the tire impressions matched the tires of the Ford Expedition owned by appellant's girlfriend. Casts of the shoe prints matched a pair of size 11 Nike Air Jordan athletic shoes found inside the Camry's trunk. The parties stipulated that appellant wore a size 11 shoe. There were no shoe prints from the K-Swiss shoes worn by Payan. A casing found near Payan's body matched the shell casings found at the Neptune Liquor Store shooting, and were determined to have been fired from the same weapon. The crime scene was about 16 miles from the Gardena house and about 10 miles from the Neptune Liquor Store.
In February 2007, detectives searched the Camry and Castaneda's Ford Expedition. In addition to the athletic shoes found in the Camry's trunk, detectives found two blood-stained shirts and DMV paperwork with appellant's name. In the cargo compartment of the Ford Expedition, detectives found a black plastic bag with a small fragment of duct tape stuck to it. Tests of the duct tape fragment revealed DNA that came from a mixture of at least two people, including Payan, and a comparison of the tape fragment with the duct tape found on Payan's ankles revealed no differences in physical, optical, and chemical properties. Detectives also found in the Ford Expedition a folding knife, paperwork belonging to appellant and Castaneda, and a photo album with pictures of appellant and one picture of Tafoya.
Defense Case
Ronald Markman, a psychiatrist and lawyer, testified about the effects of methamphetamine on a person's central nervous system, stating that the drug increases the system's activities in all areas, including muscle and perceptual activity and heart and respiratory rates. A person who has taken methamphetamine does not have good concentration and tends to think and act more impulsively. The drug's effect usually lasts four to five hours. Methamphetamine and alcohol affect a person's memory.
DISCUSSION
People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 97 (Batson).
Appellant contends the trial court committed prejudicial error when it denied the two Wheeler/Batson motions made by codefendant Tafoya's counsel with respect to peremptory challenges exercised by the prosecution against Jurors Nos. 10 and 15, the only two African-Americans on the jury panel.
The People argue that appellant forfeited this issue on appeal because his trial attorney did not expressly join in the motions. "The failure to articulate clearly a Wheeler/Batson objection forfeits the issue for appeal." (People v. Lewis (2008) 43 Cal.4th 415, 481, citing People v. Gallego (1990) 52 Cal.3d 115, 166.) Relying on People v. Scott (1994) 9 Cal.4th 331, 351, appellant counters that the underlying rationale for the forfeiture doctrine is to provide the trial court with an opportunity to address issues in the first place and to avoid error. (See also People v. Brenn (2007) 152 Cal.App.4th 166, 174 ["The whole idea behind the objection requirement is to . . . assist the court in making an informed decision" and such goals were met where the prosecution addressed the issue in its pretrial motion "and the court addressed the issue in rendering its decision"].) Appellant argues that because Tafoya's counsel made the two motions, argued them before the trial court, and obtained rulings, the issue was fully addressed below. We agree.
"Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race." (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix); Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277.) As Lenix explained: "The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from the opponent of the strike. [Citation.] The three-step procedure also applies to state constitutional claims. [Citations.]" (Lenix, supra, at pp. 612-613.) "To make a prima facie showing of group bias, 'the defendant must show that under the totality of the circumstances it is reasonable to infer discriminatory intent.' [Citations.]" (People v. Davis (2009) 46 Cal.4th 539, 582; see People v. Kelly (2007) 42 Cal.4th 763, 779; People v. Bonilla (2007) 41 Cal.4th 313, 341.)
"Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.]" (Lenix, supra, 44 Cal.4th at p. 613.) We use "great restraint" in reviewing a trial court's determination of the issue. (Ibid.) "We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.]" (Id. at pp. 613-614.) "A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons," so long as they do not deny equal protection. (Id. at p. 613.)
Though appellant is not African-American, he still has standing to object to race-based exclusions regardless of the fact that he is not a member of the alleged group. (Powers v. Ohio (1991) 499 U.S. 400, 415.) There were no Hispanic jurors.
Juror No. 10 (referred to by the last four numbers of his juror identification number of 2637) worked as a computer consultant, and was married with six children, two of whom are adults. He was a victim of burglary on two occasions, and stated that he could be fair and impartial. He had an "incident" with law enforcement, explaining that he had been "profiled" as a teenager by sheriffs, that he had known other people and friends who had "grown up and had suits against the sheriff's department." He stated that growing up, he and all his friends "at any given time had been pulled over for no reason in different areas around the South Bay, and, you know, harassed at that time. Call it harassment or not, but, you know, picked out just for whatever reason and usually let go. But, you know, it's not uncommon." He later stated that "being a sheriff or police officer is a difficult job," that his younger brother was a sheriff in the holding cell in the criminal courts building, and that he could be fair and impartial.
After the prosecutor exercised his peremptory challenge against Juror No. 10, Tafoya's counsel made his first Wheeler/Batson motion. The court responded: "The juror indicated that he was profiled. I think that's enough. And there was a point from the prosecution early on that he had some white collar crime concerns. So I don't find a pattern for a prima facie case." Because the court found no prima facie case, it did not ask the prosecutor to explain his reasons for making the peremptory challenge, and the prosecutor did not offer any. But had the prosecutor referred to the juror's past profiling by law enforcement, that would have constituted a race-neutral reason. "'We have repeatedly upheld peremptory challenges made on the basis of a prospective juror's negative experience with law enforcement.' [Citations.]" (Lenix, supra, 44 Cal.4th at p. 628.)
Juror No. 15 (referred to as Juror No. 8678) worked for a car rental company as a check-in agent, and was divorced with four older children. He had been the victim of crime more than once. Around 20 years ago, three men pulled up in a van at night, placed a gun to his head, put him in the van, and threatened to kill him. They took about $30 dollars from his wallet and pushed him out of the van. He never reported the crime or even told his mother about it because he had recently emigrated from Jamaica, was scared and did not know what to do. When asked if the incident would influence him if selected as a juror, he responded, "Well, I don't think so." Juror No. 15 once had a credit card stolen from his wallet at a friend's house, and once had a weapon stolen. Juror No. 15 stated that he "love[s] weapons" and plans to get another one, but has not gotten around to it. His daughter had been raped at the age of 19 by a "Spanish" man, but he did not report it because he was scared and did not know what to do. Juror No. 15 also stated that he would require the prosecutor to prove a motive, and that "if you can't prove it, I don't think they are guilty."
After the prosecutor exercised a peremptory challenge against Juror No. 15, Tafoya's counsel made his second Wheeler/Batson motion. This time the prosecutor offered the reasons for his challenge: "Yes. Initially, I was concerned about the fact that he hadn't reported a very violent crime. I think that was my concern as, with Juror Number 9, the other juror that was excused by defense [for] not reporting a crime. They're not terribly concerned about society, repeat crimes, and the victim. It was a stranger, that he had spent 20 years and rarely talks about it. Second, he said he loves weapons. That's kind of a little unique to be enthusiastic about. So I'm concerned about that. And finally, when he wouldn't back down about the motive thing, I just think it was an educated guess." The court found that no prima facie case of racial motive had been made.
We find no error. The prosecutor's reasons were race-neutral. The record supports a finding that the prosecutor made a tactical decision to not select a juror who had been the victim of a violent crime that he failed to report to the authorities or even his mother, and who was insisting that the prosecutor had to go beyond his legal burden by proving a motive.
II. Admission of the License Plate Number Written on the Napkin.
Appellant contends the trial court committed prejudicial error and violated his Sixth Amendment right to confront witnesses by admitting into evidence the napkin containing the license plate number of the Camry involved in the liquor store shooting. Specifically, he argues that the error rose to the level of a constitutional violation because the information was testimonial in nature and he had no opportunity to cross-examine the declarant. He also argues that notwithstanding a constitutional violation, admission of the evidence was improper under the spontaneous declaration exception to the hearsay rule because the prosecution never laid a foundation showing that the person who wrote down the license plate number personally observed the license plate.
A. Sixth Amendment
The confrontation clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) This clause is made applicable to the states through the Fourteenth Amendment. (Pointer v. Texas (1965) 380 U.S. 400.) The purpose of the confrontation clause is to test the reliability of evidence through cross-examination. (Davis v. Alaska (1974) 415 U.S. 308, 315-316.)
In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held that the confrontation clause precludes the use of "testimonial" hearsay against a defendant in a criminal trial, unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. (Id. at p. 68; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224.) Although the Crawford Court did not provide a comprehensive definition of "testimonial statements," it did state that such statements include "at a minimum . . . prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and [during] police interrogations." (Crawford, supra, at p. 68.)
In Davis v. Washington (2006) 547 U.S. 813, the Supreme Court addressed the meaning of "testimonial," stating: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822, fn. omitted.)
"[A]fter Davis, the determination of whether the admission of a hearsay statement violates a defendant's rights under the confrontation clause turns on whether the statement is testimonial. If the statement is testimonial, it must be excluded unless the declarant is unavailable as a witness and the defendant had a prior opportunity to cross-examine the declarant. If the statement is not testimonial, it does not implicate the confrontation clause, and the issue is simply whether the statement is admissible under state law as an exception to the hearsay rule." (People v. Garcia (2008) 168 Cal.App.4th 261, 291.)
Testimonial statements are statements "made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14.) Statements are not testimonial "if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency . . . ." (Id. at p. 984.) An "informal statement made in an unstructured setting" generally does not constitute a testimonial statement. (People v. Morgan (2005) 125 Cal.App.4th 935, 947.)
We conclude that the license plate number written on the napkin is not testimonial, and therefore the confrontation clause is not implicated. The information given by the unidentified excited male Hispanic to the police officer in an informal setting on the street was not made in response to any statements or questions by the police, and was given for the primary purpose of dealing with a contemporaneous emergency regarding the firing of six gun shots that had occurred approximately 30 seconds earlier. (See Davis v. Washington, supra, 547 U.S. at p. 822 ["Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency"]; People v. Cage, supra, 40 Cal.4th at p. 984 ["statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency"]; People v. Banos (2009) 178 Cal.App.4th 483, 493, 497 [victim's statement to 911 dispatcher that defendant would not leave her apartment was nontestimonial]; People v. Brenn, supra, 152 Cal.App.4th at pp. 177-178 [stabbing victim's recorded statements to 911 dispatcher were not testimonial]; People v. Cooper (2007) 148 Cal.App.4th 731, 742 ["Interrogation during a 911 call is not testimonial because it is not designed primarily to establish or prove some past fact but to describe current circumstances requiring police assistance"]; People v. Corella (2004) 122 Cal.App.4th 461, 468 [victim's 911 call nontestimonial].)
Because the license plate number written on the napkin was not testimonial, the issue becomes whether the statement is admissible under state law as an exception to the hearsay rule. (People v. Garcia, supra, 168 Cal.App.4th at p. 291.)
Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." The rationale for the exception is that spontaneous or excited utterances are admissible, despite the lack of cross-examination, because of their "particular reliability as the immediate product of direct perception, before fading memory or the opportunity for fabrication has intervened." (People v. Arias (1996) 13 Cal.4th 92, 150; People v. Poggi (1988) 45 Cal.3d 306, 318.)
In its respondent's brief, the People "submit[] that the trial court did not err in admitting evidence of the license plate number written on a napkin." Other than this brief statement, the People do not address appellant's argument that because there was no foundation that the declarant had personally observed the license plate, admission of the writing on the napkin violated state law. Even assuming the napkin's statement did not meet all the elements of Evidence Code section 1240, it's admission under this statute was harmless error.
The erroneous admission of evidence requires reversal only when there has been a miscarriage of justice. (Evid. Code, § 353; People v. Rains (1999) 75 Cal.App.4th 1165, 1170.) A miscarriage of justice should be declared only when the reviewing court, after an examination of all the evidence, is of the opinion that it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Rains, supra, at p. 1170, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant acknowledges this is a difficult burden to meet.
Appellant argues that because the identity of Payan's actual shooter was unknown, connecting appellant and Tafoya to the liquor store shooting, where shell casings from the same gun used to kill Payan were found, was "key" to establishing that identification. We disagree. Even without the liquor store shooting evidence, the evidence of appellant's guilt of kidnapping and murdering Payan was substantial. It is undisputed that Payan was with appellant and Tafoya on the night he was killed. Payan was placed in the back of the Ford Expedition owned by appellant's girlfriend, with his hands and ankles bound with duct and packing tape. Appellant drove the Expedition about 16 miles to a deserted area, while Payan moaned and groaned in the back. Appellant and his companion, whom the jury could reasonably infer was Tafoya based on his build, got out of the vehicle, took Payan out, and placed him on the dirt ground where he was fatally shot execution style. A fragment of duct tape found in the Expedition matched the tape on Payan's body. Tire casts at the scene also matched the tires of the Expedition. And shoe prints at the scene matched shoes found in appellant's Camry. Under these circumstances, we see no reasonable probability of a more favorable result for appellant had the napkin not been admitted to evidence.
III. Admission of the Liquor Store Shooting Evidence.
Appellant contends the trial court committed reversible error in admitting evidence of the prior liquor store shooting.
At a hearing before trial, the court found that evidence of the prior liquor store shooting was admissible under both Evidence Code section 1101 to show identity and Evidence Code section 352 as not being unduly prejudicial. Appellant argues, as he did below, that the trial court abused its discretion and violated his federal constitutional right to due process by admitting this evidence, because the jury most likely used this evidence not for purposes of identity, but to establish appellant's propensity or criminal disposition.
"Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or a poor character." (People v. Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart).) But evidence of uncharged crimes is admissible to prove, among other things, "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." (Evid. Code, § 1101, subd. (b).) "To be relevant to prove identity, the uncharged crime must be highly similar to the charged offenses, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent." (Lenart, supra, at p. 1123.) "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) "'The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.'" (People v. Kipp (1998) 18 Cal.4th 349, 370, citing People v. Thornton (1974) 11 Cal.3d 738, 756.)
"Finally, for uncharged crime evidence to be admissible, it must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence." (Lenart, supra, 32 Cal.4th at p. 1123; Evid. Code, § 352.) We review a trial court's determination of these issues for abuse of discretion. (Lenart, supra, at p. 1123, citing People v. Kipp, supra, 18 Cal.4th at p. 369; People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
Here, the uncharged crimes involving the liquor store shooting were not highly similar to the charged crimes of kidnapping and first degree murder so as to be relevant to prove appellant's identity. The crimes did not share common features or such distinctive or unusual characteristics as to act as a signature. Appellant was never identified as being the driver of the Camry at the liquor store. The prosecution took the position that Tafoya was the actual shooter of Payan, given the undisputed evidence that Tafoya shot at the Kia. The liquor store evidence was therefore inadmissible under Evidence Code section 1240 to prove appellant's identity.
But the error in admitting the evidence is harmless under People v. Watson, supra, 46 Cal.2d at p. 836, in light of the other evidence presented. (Lenart, supra, 32 Cal.4th at p. 1125.) Indeed, appellant concedes there was other testimony of his presence at the time Payan was killed. It is not reasonably probable that had the liquor store shooting evidence been excluded appellant would have obtained more favorable verdicts. "Nor are we persuaded that admission of this evidence violated defendant's right to due process of law under our federal Constitution, requiring us to determine whether the claimed error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24)." (Lenart, supra, at p. 1125.)
IV. CALJIC No. 3.02 on "Natural and Probable Consequences" Doctrine.
Appellant contends the trial court committed prejudicial error and violated his constitutional rights to due process and a jury trial by failing to properly instruct the jury on the "natural and probable consequence" doctrine. Appellant complains that the trial court failed to clearly identify both the target offense (kidnapping) and the crime that was the natural and probable consequence (murder). He also argues that the trial court failed to instruct the jury that the murder must be committed during or in furtherance of the commission of the target offense of kidnapping.
A. Target Offense
The jury was instructed with CALJIC No. 3.02 [Principals—Liability for Natural and Probable Consequences]. As pertinent here, the instruction provided in part: "One who aids and abets another in the commission of a crime or crimes is not only guilty of those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [¶] In order to find a defendant guilty of the crimes of Murder or Kidnapping, under this theory, as charged in Counts 1 and 2, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime or crimes of Murder or Kidnapping were committed; [¶] 2. That the defendant aided and abetted those crimes; [¶] 3. That a co-principal in that crime committed the crimes of Murder or Kidnapping; and [¶] 4. The crimes of Murder or Kidnapping were a natural and probable consequence of the commission of the crimes of Murder or Kidnapping."
In People v. Prettyman (1996) 14 Cal.4th 248, our Supreme Court held that instructions on the "natural and probable consequences" rule are required only when the prosecution has elected to rely on that theory of accomplice liability, and then, only when substantial evidence supports the theory. (Id. at p. 269.) But when the instruction is given, it should identify and define any target offenses allegedly aided and abetted by the defendant. (Id. at p. 270; People v. Prieto (2003) 30 Cal.4th 226, 252; People v. Sakarias (2000) 22 Cal.4th 596, 627.) "If the court fails to identify and define these target offenses, we must then determine whether there is a '"reasonable likelihood" that the jury misapplied the trial court's instructions on the "natural and probable consequences" doctrine . . . .'" (People v. Prieto, supra, at p. 252, citing People v. Prettyman, supra, at p. 272.)
Appellant correctly argues that the target offense here was kidnapping, while the foreseeable crime that was a natural and probable consequence was murder. As appellant notes, while murder can be a consequence or foreseeable result of kidnapping, kidnapping is not a consequence of murder. Once the victim is killed, there is no crime of kidnapping even if the body is moved after death. (People v. Hillhouse (2002) 27 Cal.4th 469, 498.)
The People concede that the trial court should have identified the target offense as kidnapping. But assuming, without deciding, that appellant has not forfeited this issue on appeal by his failure to object below to the instruction as given, we conclude the error was harmless, because there is no "reasonable likelihood" the jury misunderstood or misapplied the law in this case. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 183, 184.)
The prosecutor never relied on the natural and probable consequences theory of murder. Indeed, neither the prosecutor nor either defense counsel explained the natural and probable consequences doctrine to the jury. Instead, the prosecutor relied on the first degree felony-murder rule, and took the position that Tafoya was probably the shooter. In his closing argument, the prosecutor explained to the jury the concept of aiding and abetting in the context of the felony-murder rule: "So in this case, we have clearly a felony murder. There's no question about it. In this case, though, we have to also look at something else, and that is the issue of aiding and abetting. Because in this case we don't know who actually fired the gun. We all know that you don't have to fire the gun to be an aider and abettor. . . . So all persons who directly and actively commit the act constituting the crime are aiders and abettors. Or who with knowledge of the unlawful purpose of the perpetrator, . . . I know that you're going to kidnap the guy, . . . and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission are guilty of murder in the first degree. So in the felony murder situation, if you're aiding and abetting the kidnapping, then you are in fact going to be guilty of the felony murder if you qualify with respect to these elements." The jury was instructed with CALJIC No. 8.21 [First Degree Felony-Murder] and CALJIC No. 8.27 [First Degree Felony-Murder—Aider And Abettor].
Moreover, the evidence of appellant's guilt of Payan's kidnapping and murder was overwhelming. Numerous witnesses testified that Payan told them on January 30, 2007 that he was going to Gardena to help appellant move. Later that night, Payan was seen at appellant's house in Gardena by Reyes, who had brought packing tape with her. After Reyes left, Payan was placed in the cargo area of the Ford Expedition owned by appellant's girlfriend. Payan's hands and ankles were bound with duct tape and packing tape. Appellant drove the Expedition about 16 miles. Moran, who was also in the Expedition, told the detectives she heard a man moaning and groaning in the back. Appellant stopped the vehicle at a dirt turnout. Appellant and Tafoya got out of the vehicle, removed Payan, and put him on the ground. Two gunshots, heard by Moran and several other witnesses, were fired at Payan's head, killing him. Appellant and Tafoya then got back into the Expedition and drove away. A search of the Camry given to appellant by his mother revealed a pair of size 11 athletic shoes, which matched the shoe prints found at the crime scene. The gun casing found near Payan's body at the crime scene was fired by the same gun that had been used in the Neptune Liquor Store shooting. And the duct tape on Payan's body matched the duct tape later found in the Expedition.
B. In Furtherance of Kidnapping
With respect to the second part of appellant's contention, that the trial court erred in not modifying CALJIC No. 3.02 to require that the murder be committed during or in furtherance of the target offense of kidnapping, we find any error harmless.
Appellant once again argues that the prosecution relied on the natural and probable consequences doctrine, when in fact the prosecution relied on the felony murder rule. Appellant also argues that the "the homicide was not perpetrated during or in furtherance of the commission of the kidnapping which was effectively completed at the time Payan was shot." But the evidence showed that when Payan was removed from the Expedition at a place about 16 miles from appellant's Gardena house, Payan was still bound and unable to move and still under the control of appellant and Tafoya, at least one of whom had a gun. Under the natural and probable consequences doctrine, an aider and abettor's knowledge of the target or predicate crime and actions taken by that person with the intent to encourage the target crime are sufficient to impose liability for any "'reasonably foreseeable offense'" committed by the perpetrator. (People v. Gonzales (2001) 87 Cal.App.4th 1, 8, quoting People v. Prettyman, supra, 14 Cal.4th at p. 261.) While appellant argues that "the shooting of Payan was the unanticipated spontaneous act of Tafoya, which [appellant] had no reason to anticipate," foreseeability is a factual question to be resolved by the jury in light of all the circumstances. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) As the People state, the relevant question is not whether the target or predicate offense was being committed at the same moment the homicide occurred, but whether the homicide was a foreseeable result of the kidnapping. We are satisfied that any instructional error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)
V. Stay of Kidnapping Sentence Under Section 654.
Appellant contends the trial court erred in failing to stay his sentence for the kidnapping conviction pursuant to section 654.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
In Neal v. State of California (1960) 55 Cal.2d 11, 19, our Supreme Court held that section 654 bars punishment under multiple statutory provisions where the defendant engages in an indivisible course of conduct involving a single criminal objective. "The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
We apply a substantial evidence standard of review. "'The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial.' [Citations.] '[T]he law gives the trial court broad latitude in making this determination.' [Citation.]" (People v. Wynn (2010) 184 Cal.App.4th 1210, 1215.)
The People agree that generally the underlying felony for a conviction based on the felony-murder rule should be stayed under section 654. Here, it is unknown whether the jury convicted appellant of first degree murder based on the felony murder rule or premeditation and deliberation. When presented with a similar uncertainty in People v. Osband (1996) 13 Cal.4th 622, our Supreme Court agreed that the trial court's sentencing on rape and robbery, in addition to murder, implied that it had determined the defendant had more than one objective when he committed the crimes, and that substantial evidence supported such an implicit finding. (Id. at p. 731.) The Court therefore declined to stay any sentence under section 654, and stated that it "need not decide whether, because the jury may have found him guilty on a theory of felony murder, the sentences imposed for the rape and robbery of [the victim] must be stayed lest a violation of the Fifth Amendment's double jeopardy clause or any principle of state constitutional, statutory or decisional law occur." (People v. Osband, supra, at p. 731.)
Here, we find the evidence insufficient to support the trial court's implicit finding that appellant had more than one objective in committing the charged crimes. The evidence showed that appellant and Tafoya bound Payan's hands and ankles, placed him in the back of a vehicle, and drove him approximately 16 miles away while at least one of them had a gun. The logical and reasonable inference from this evidence is that appellant and Tafoya took Payan to a remote area where there would be fewer witnesses with the intent of killing him. There would be no purpose in binding him and driving him all that way if they did not harbor the singular intent of murder. They could instead have killed Payan at the Gardena house and then transported his dead body, but this is not what happened. Appellant's position that the trial court could have inferred that the kidnapping had ended once the victim was removed from the vehicle and that the murder was a separate crime is not reasonable. There was no evidence found at the crime scene suggesting a scuffle or fight between appellant, Tafoya and the victim in which a gun might have been fired accidentally. Payan was killed execution style, giving him no chance of escape.
We conclude the evidence showed there was an indivisible course of conduct involving a single criminal objective of murder. We therefore remand the matter to the trial court for the purpose of modifying the judgment to stay the 22-year sentence imposed on the kidnapping conviction pursuant to section 654.
VI. Constitutionality of Section 190.2.
Appellant contends the kidnapping special murder circumstance in section 190.2, subdivision (a)(17) is unconstitutionally vague because it is virtually identical to section 189 defining first degree murder, and therefore "risks arbitrary and capricious imposition of the far more severe punishments of either death or life without the possibility of parole."
Section 190.2 provides as relevant: "(a) 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: [¶] . . . [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: [¶] . . . [¶] (B) Kidnapping in violation of Section 207, 209, or 209.5."
The jury was instructed regarding the kidnapping special circumstance with CALJIC No. 8.80.1 [Special Circumstances—Introductory]; CALCRIM No. 704 [Special Circumstances: Circumstantial Evidence—Sufficiency]; CALCRIM No. 705 [Special Circumstances: Circumstantial Evidence—Intent or Mental State]; CALJIC No. 8.81.17.1 [Special Circumstances—Murder in Commission of Kidnapping]; CALCRIM No. 703 [Special Circumstances: Intent Requirement for Accomplice— Felony Murder]; CALCRIM No. 707 [Special Circumstances: Accomplice Testimony Must Be Corroborated—Dispute Whether Witness Is Accomplice]; and CALJIC No. 8.83.3 [Testimony of Accomplice Must Be Corroborated—Special Circumstance Trial].
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Section 189 provides in relevant part: "All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree."
In People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, the defendant similarly challenged the lying-in-wait special-circumstance provision (§ 190.2, subd. (a)(15)) as unconstitutionally vague because it was similar to lying-in-wait first degree murder. (Bradway, supra, at pp. 306-311.) In rejecting the constitutional challenge, Bradway explained: "Generally, there are two separate and distinct legal theories for challenging a statute on vagueness grounds, depending on the interests at stake. [Citation.] A person challenging aggravating circumstance statutes in death penalty cases brings such under the Eighth Amendment, asserting 'the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with . . . open-ended discretion . . .' [Citation.] In noncapital cases, the challenge comes under the due process clause and 'rest[s] on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.' [Citation.] Where there is no First Amendment right implicated, such due process challenges 'are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.' [Citation.]" (Id. at p. 309.)
Here, sections 189 and 190.2, subdivision (a)(17) provided appellant with clear constructive notice that the crimes he was charged with committing against Payan subjected him to a range of severe penalties, including a prison term of 25 years to life, life without the possibility of parole, and death. Prosecutorial discretion to determine which among this range of penalties the People should seek does not offend due process. (Bradway, supra, 105 Cal.App.4th at p. 310 [prosecutorial discretion to seek death penalty].) Moreover, "it has long been held that 'first degree murder liability and special circumstance findings may be based upon common elements without offending the Eight Amendment. [Citations.]'" (Ibid.)We find no due process violation.
VII. Cumulative Error.
Appellant contends that cumulative error denied him his due process right to a fair trial. A defendant is entitled to a fair trial, not a perfect one. (See People v. Chatman (2006) 38 Cal.4th 344, 410; People v.Cunningham (2001) 25 Cal.4th 926, 1009; People v. Bradford (1997) 14 Cal.4th 1005, 1057.) The constitutional rules governing the conduct of criminal trials exist to "ensure that those trials lead to fair and correct judgments." (People v. Avila (1995) 35 Cal.App.4th 642, 656.) When a reviewing court can determine that the record developed at trial establishes guilt beyond a reasonable doubt, "the interest in fairness has been satisfied and the judgment should be affirmed." (Ibid.)Here, as explained above, any complained-of errors either did not occur or were harmless. Appellant's claim of cumulative error is rejected.
DISPOSITION
The matter is remanded to the trial court with directions to modify the abstract of judgment by ordering that the 22-year sentence on the kidnapping conviction be stayed pursuant to section 654. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
J.
DOI TODD
We concur:
P. J.
BOREN
J.
ASHMANN-GERST