Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 06NF1800 Patrick Donahue, Judge.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant Kandice Ortega.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Jose Suarez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
In a joint trial, a jury convicted Kandice Noel Ortega of second degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code unless noted) and convicted her boyfriend Jose Suarez of first degree murder (ibid.) for the gang-related slaying of Manual Rodriguez. The jury found true allegations Ortega committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and she vicariously discharged a firearm causing death (§ 12022.53, subds. (d) & (e)). The jury also found true a special circumstance allegation that Suarez actively participated in a criminal street gang and committed the murder to further the activities of the gang (§ 190.2, subd. (a)(22)), and further found to be true allegations he committed the murder for the benefit of a gang (§ 186.22, subd. (b)(1)) and that he personally discharged a firearm causing death (§ 12022.53, subd. (d)).
Ortega contends the trial court erred by admitting evidence of a jailhouse statement Suarez made to another inmate implicating Ortega. She argues the portion of the statement identifying her as Suarez’s driver fell outside the hearsay exceptions for statements of a party defendant (Evid. Code, § 1220) and statements against penal interest (Evid. Code, § 1230), and, absent this evidence, she was entitled to have her motion for acquittal granted. Ortega also argues the trial court erred in failing to instruct the jury they could consider evidence of her voluntary methamphetamine intoxication on the issue of knowledge and intent for aider and abettor liability.
Suarez raises a host of instructional challenges. (See generally Judicial Council of Cal. Crim. Jury Instns.) Isolating a sentence in one of several instructions concerning accomplice testimony (CALCRIM No. 301), he argues the trial court directed the jury to disregard a defendant’s uncorroborated testimony. In a related argument, Suarez asserts the instructions improperly told the jury it could convict based on accomplice testimony (CALCRIM Nos. 334 & 335), but it could not use accomplice testimony to acquit. Suarez also contends the special circumstance instruction erroneously permitted a true finding based on uncorroborated accomplice testimony (CALCRIM No. 708). Finally, Suarez argues the trial court erred in giving the standard instruction that the prosecutor need not prove a motive for the defendant’s crime (CALCRIM No. 370).
Each defendant joins in the other’s arguments for reversal but only two of Suarez’s contentions are relevant to Ortega, and none of hers lend support to him. In any event, none of defendants’ substantive contentions have merit, as we explain, but the abstract of judgment must be corrected to reflect that the trial court imposed joint and several liability for $8,700 in direct victim restitution. As modified, the judgment is affirmed.
The sentencing transcript reveals the trial court imposed the victim restitution amount jointly and severally, a detail omitted from the abstract of judgment. The trial court’s oral pronouncement is controlling. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.)
I
FACTUAL AND PROCEDURAL BACKGROUND
Suarez and Ortega gathered in May 2006 with fellow La Jolla gang members Christian Jimenez, Rafael Luna, and others at a friend’s house, where Suarez informed the group that members of the rival Atwood gang had driven through La Jolla territory in Placentia. Jimenez testified Suarez, whose gang monikers included “Woody” and “Silent, ” urged the group to retaliate for Atwood’s perceived transgression. According to Jimenez, Suarez stated the group “had to go back” to Atwood territory and, when Jimenez remarked on the danger of doing so unarmed, Suarez told them he had a gun.
Ortega took the wheel of a vehicle she had stolen the night before, and Suarez, Jimenez, and Luna joined her. As Ortega drove down a street in territory Atwood claimed, they passed Rodriguez, who was walking towards an ice cream truck with Pablo Moreno and another friend. Suarez said he recognized Rodriguez. Ortega made a U-turn and, after hesitating, stopped the car near the ice cream truck. Someone outside the vehicle yelled, “Woody is coming, ” and Rodriguez’s friends fled, but he stayed behind. As Suarez stepped out of the vehicle, Rodriguez walked quickly towards a nearby park, but Suarez shot him in the back five times. Rodriguez died from blood loss due to gunshot wounds to his heart and lungs.
Ortega drove the group to a fastfood restaurant to eat and then to another gang member’s home in Anaheim. Jesus Flores, who had dated Suarez’s sister, testified he picked up Suarez and Ortega and drove them to his place in Long Beach that night. Ortega had a backpack. Flores admitted Suarez’s mother had been worried Suarez was involved in the Atwood shooting. Suarez’s uncle collected Ortega and Suarez the next morning to drive them to Texas, but United States Marshalls apprehended the duo in Arizona.
Suarez admitted the shooting in recorded jail cell statements he made to another La Jolla gang member. Suarez discarded the murder weapon in a dumpster near the California and Arizona border. In a photographic lineup, Rodriguez’s friend Moreno quickly identified Suarez as the shooter. The ice cream truck driver, Clara Palacios, identified the driver of the vehicle used in the shooting as a Hispanic female with long curly hair, and Palacios circled two women in a photographic lineup, including Ortega, as the possible driver.
Ortega and Suarez both testified. Ortega admitted she stole the vehicle used in the shooting, but claimed she did so to “cruise” around and pick up drugs in rival gang territory. Under the influence of methamphetamine and needing more drugs, she drove to Atwood territory on the murder date to find a dealer. She disclosed her purpose to Suarez, but not Jimenez or Luna. She did not know Suarez had a gun. When she did not spot a dealer in Atwood Park, she made a U-turn and stopped at a stop sign, where Suarez exited the vehicle and shot Rodriguez. She did not know Suarez planned to shoot anyone.
Suarez testified he often was armed and that he accompanied Ortega to find drugs in Atwood Park. He recognized Rodriguez from the “MySpace” internet site and knew he was an Atwood gang member. According to Suarez, Rodriguez walked towards Ortega’s vehicle with something in his hand. Believing Rodriguez was going to fire a weapon, Suarez stepped out of the vehicle and shot Rodriguez.
After the jury convicted Ortega and Suarez as noted, the trial court sentenced Ortega to 40 years to life in prison and Suarez to life in prison without the possibility of parole. They now appeal.
II DISCUSSION
A. Hearsay
Ortega objected before trial on hearsay and constitutional confrontation grounds to the admission of tape recorded statements Suarez made to a cellmate in juvenile hall. Ortega’s confrontation challenge became moot when Suarez took the stand at trial. Regarding hearsay, she asserts the trial court erred in concluding Suarez’s recorded statements qualified as a party admission (Evid. Code, § 1220) or a statement against penal interest (Evid. Code, § 1230). The record demonstrates the trial court properly admitted the statements.
Authorities placed Suarez in a cell with fellow La Jolla gang member Benito Reyes, who was apparently detained on other charges. After Suarez referred to the victim by his gang moniker, the following exchange occurred: “[Suarez:] He was 18, some big ass fool. [H]e came up to the car. [¶] [Reyes:] And you were in the car? [¶] [Suarez:] Yeah. [¶] [Reyes:] You got out of the car? [¶] [Suarez:] I told Kandice (inaudible) to stop. [¶] [Reyes:] Kandice was driving or what? [¶] [Suarez:] Yeah, stop. [¶] [Reyes:] Who are you with, you and Kandice? That is it? [¶] [Suarez:] And fucking Smiley and Popes [i.e., Jimenez and Luna, respectively].” (Italics added.)
Ortega did not request an instruction limiting the jury’s use of the evidence to Suarez only. She suggests requesting an instruction would have been futile, since the trial court noted Ortega believed the statements were inadmissible against her. The trial court’s observation does not demonstrate the court would have rejected a limiting instruction if Ortega had requested one. (See People v. Partida (2005) 37 Cal.4th 428, 435 [“A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct”].)
In any event, Ortega’s claim fails on the merits. Suarez’s statement qualified generally as a party admission (Evid. Code, § 1220) and specifically as an admission against his penal interests (Evid. Code, § 1230) because his presence in the vehicle and knowledge of its occupants inculpated him in the shooting. Describing accurately the details of the shooting, including the identity of the driver and other occupants, supported the reliability of Suarez’s statements, including his later boast to his cell mate, a fellow gang member, that he shot a rival gang member in the incident.
The fact that Suarez inculpated Ortega and not just himself did not prevent admission of the statements. Hearsay statements identifying coconspirators are admissible as declarations against penal interest if the statements are an integral part of the declarant’s account implicating himself, rather than an effort to shift blame to others or to minimize the declarant’s guilt. (People v. Greenberger (1997) 58 Cal.App.4th 298, 340-341.) Self-serving attempts to ascribe greater guilt to fellow participants are inadmissible because they fail the trustworthiness threshold necessary to admit hearsay statements. (People v. Duarte (2000) 24 Cal.4th 603, 612-613; see, e.g., People v. Samuels (2005) 36 Cal.4th 96, 120 [admission proper where declarant’s “facially incriminating comments were in no way exculpatory, self-serving, or collateral”].)
Here, the trial court did not abuse its discretion in finding Suarez’s statements sufficiently trustworthy rather than self-serving. (See People v. Lawley (2002) 27 Cal.4th 102, 153-154 [abuse of discretion standard applies].) After Suarez disclosed to his cellmate that Ortega was driving, he continued with his account: “We went back, right? I already had a bandana on, [but] then they already saw me, so fuck it, I had the gloves on. I put my shirt over the.38 right here and we were going slow down, you know; we pulled up next to him and he is all, where — what are you fools looking at, so I told him, hey, where are you from? He is all, Atwood, Atwood. And [I] got out of the car and then fucking he saw the gun, and he started, he tried to run. I was like [this] close to the fool, from like here to right there, and I shot [him] five times in the back.”
As the trial court observed, “Mr. Suarez didn’t try to make Ms. Ortega look bad and try to mitigate his conduct. It was exactly the opposite. He said, I did the bad stuff. Ms. Ortega drove, and at one point she didn’t even stop the car.” Because Suarez’s identification of Ortega formed an integral part of his narrative rather than a self-serving attempt to shift blame to alleged coconspirators, the trial court did not err in admitting the statements. Ortega’s claim of error fails.
B. Ortega’s Motion for Acquittal
Ortega argues the trial court erred in denying her motion for acquittal at the close of the prosecution’s case. (§ 1118.1.) She relies in part on her argument that Suarez’s recorded statements should have been excluded but, as noted above, that argument fails. She nevertheless maintains that insufficient evidence corroborated accomplice testimony that identified her as the driver and suggested she knew Suarez had a gun. In addition to Suarez’s statement to his cellmate, Jimenez confirmed Ortega was the driver and he testified Suarez informed the group, including Ortega, that he had a gun before they left to retaliate against Atwood. “[I]ndependent evidence need not corroborate the accomplice as to every fact on which the accomplice testifies [citation]....” (People v. Vu (2006) 143 Cal.App.4th 1009, 1022 (Vu).) Rather, corroborating evidence may be circumstantial or slight and entitled to little consideration standing alone, but is sufficient if it “tends to connect defendant with the crime in a way that may reasonably satisfy a jury that the accomplice is telling the truth.” (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1303 (Narvaez).)
Ortega focuses her corroboration challenge on the ice cream truck driver’s testimony and the description she gave to police that the driver was a Hispanic female. (See In re Christopher B. (2007) 156 Cal.App.4th 1557, 1560, fn. 2 [“A mere racial match, without more, is not of evidentiary value”].) But there was more than this. The ice cream truck driver, Clara Palacios, did not simply categorize the driver as a Latina, but also noted she had curly hair, long enough to tie in back, and she selected Ortega’s picture in a photo array as one of two possible matches for the driver. Perhaps most tellingly, Ortega fled out of state shortly after the murder, revealing a consciousness of guilt. (People v. Zapien (1993) 4 Cal.4th 929, 983 [flight “‘constitutes an implied admission which may properly be considered as corroborative of an accomplice’s testimony’”].) As to evidence corroborating accomplice testimony that Ortega knew Suarez held a gun, the prosecution’s gang expert explained the code of respect among gang members requires them to disclose possession of a firearm to fellow passengers in a vehicle or face reprisals. And the jury reasonably could infer knowledge from Ortega’s decision to stop the vehicle, enabling Suarez to exit the vehicle and shoot Rodriguez.
Even assuming no single strand of this supporting evidence sufficed alone to corroborate the accomplice testimony, considered together the evidence tended to connect Ortega to the crime and therefore corroborate the accomplice testimony. That is all that is required. (Narvaez, supra, 104 Cal.App.4th at p. 1303.) Consequently, given the adequate corroboration, Suarez’s statement and Jimenez’s testimony constituted substantial evidence on which a rational jury could conclude Ortega committed the charged crimes. Accordingly, the trial court did not err in denying Ortega’s motion for acquittal. (See People v. Ainsworth (1988) 45 Cal.3d 984, 1024 [issue on section 1118.1 motion “is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination”].)
C. Voluntary Intoxication and Liability for Aiding and Abetting Murder
Ortega contends the trial court instructed the jury it could not consider evidence of her voluntary intoxication on the requisite mental state for aiding and abetting liability, contrary to People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza).) In Mendoza, the Supreme Court held “the intent requirement for aiding and abetting liability is a ‘required specific intent’ for which evidence of voluntary intoxication is admissible under section 22.” (Id. at p. 1131.) Here, the trial court instructed the jury it could consider whether Ortega’s alleged methamphetamine intoxication negated the intent necessary for homicide and for the gang enhancement, but did not specifically mention the prosecution’s aiding and abetting theory in the voluntary intoxication instruction.
According to Ortega, this omission, combined with the instructional language stating “You may not consider evidence of voluntary intoxication for any other purpose, ” contravened Mendoza. Yet Mendoza did not prescribe any particular form of instruction, but only that the jury should be permitted to consider the effect of voluntary intoxication on an alleged aider and abettor’s ability to form the mental state required for conviction. To qualify as an aider and abettor, the defendant must share the perpetrator’s intent to commit the target offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) The trial court’s voluntary intoxication instruction sufficed here, where Ortega was charged and convicted of murder for the benefit of her gang. The court’s instruction specifically told the jury “You may consider [voluntary intoxication] evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation, or the defendant had the required intent included in the gang enhancement.” (Italics added.) Thus, the instruction counseled the jury to consider the effect of Ortega’s alleged voluntary intoxication on her ability to form the requisite intent, and Mendoza required no more. Specifically, Mendoza rejected the notion a trial court must “parse out those elements of each crime charged for which the [voluntary intoxication] evidence could be considered or distinguish between the knowledge and intent requirements.” (Mendoza, supra, 18 Cal.4th at p. 1134.) There was no error.
The trial court instructed the jury with CALCRIM No. 625 [Voluntary Intoxication: Effects on Homicide Crimes], as follows: “You may consider evidence, if any, of the defendant Kandice Ortega[’s] voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation, or the defendant had the required intent included in the gang enhancement. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assum[ed] the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.”
D. Use of Accomplice Testimony to Acquit
Suarez asserts the trial court violated due process by instructing the jury it could convict based on accomplice testimony, while failing to alert the jury that accomplice testimony also could serve as a basis to acquit him or Ortega. Suarez misplaces reliance on Cool v. United States (1972) 409 U.S. 100 (Cool), where the high court reversed a counterfeiting conviction based on an instruction that, in effect, directed the jury “to ignore defense testimony unless it believe[d] beyond a reasonable doubt that the testimony is true.” (Id. at p. 100.) The trial involved exculpatory accomplice testimony. Specifically, the instruction warned that an accomplice’s testimony is “‘open to suspicion, ’” but allowed that “‘[i]f... you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime....’” (Id. at p. 102, original italics.)
In essence, the instruction directed the jury to disregard the accomplice testimony unless the jury found the testimony credible beyond a reasonable doubt. The Supreme Court concluded the instruction violated the defendant’s Sixth Amendment right to present a defense and effectively reversed the burden of proof by requiring the defendant to prove his innocence beyond a reasonable doubt. (Cool, supra, 409 U.S. at p. 104.) In a footnote, the Supreme Court also criticized another portion of the jury charge in which the trial court stated: “‘I further instruct you that testimony of an accomplice may alone and uncorroborated support your verdict of guilty....’” (Id. at p. 103, fn. 4.) The high court observed that given the accomplice testimony was exculpatory, “this instruction was confusing to say the least, ” and concluded the charge was “fundamentally unfair in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis.” (Ibid.)
The accomplice instructions here exhibited none of these flaws. To the contrary, the instructions placed restrictions on the use of accomplice testimony to convict a defendant, but not to acquit. Specifically, the instruction concerning potential use of Ortega’s or Suarez’s testimony against each other directed the jury: “You may use the statement or testimony of an accomplice to convict the defendant only if...” and then listed a series of restrictions, all of which had to be satisfied. (CALCRIM No. 334 [Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice]; see margin for relevant text.) Another instruction contained identical restrictions for the jury’s consideration of Jimenez’s and Flores’s testimony as prosecution witnesses. (CALCRIM No. 335 [Accomplice Testimony: No Dispute Whether Witness Is Accomplice].) Unlike the instruction in Cool, the net effect of the cautionary instructions on accomplice testimony favored the defense instead of the prosecution. To use the high court’s term, the “negative pregnant” (Cool, supra, 409 U.S. at p. 102, fn. 3) of imposing, in CALCRIM Nos. 334 and 335, restrictions “only” for accomplice testimony marshaled “to convict the defendant” is that no similar restraint exists for acquitting the defendant based on accomplice testimony. We presume jurors are intelligent persons capable of understanding the jury instructions and applying them to the evidence. (People v. Carey (2007) 41 Cal.4th 109, 130.) Consequently, Suarez’s challenge is without merit.
As given to the jury, CALCRIM No. 334 provided in pertinent part: “You may use the statement or testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s statement or testimony is supported by other evidence that you believe. [¶] 2. That supporting evidence is independent of the accomplice’s statement or testimony, AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime.”
Suarez misreads the accomplice instructions in another way. He appears to argue the accomplice instructions told the jury the mere fact an accomplice testifies, regardless of the testimony, is sufficient to convict a defendant if there is “slight” additional evidence. (See CALCRIM Nos. 334 & 335 [“Supporting evidence... may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crimes”].) Observing “[t]he fact of the matter is that Ms. Ortega’s testimony provided no evidence at all that the shooting was committed for the benefit of a gang” (original italics), Suarez concludes that “[t]elling the jurors they could convict... based on Ortega’s testimony plus ‘slight’ corroboration was fundamentally improper.”
The instructions, however, cannot reasonably be read to declare that anything an accomplice says, plus slight other evidence, suffices for a criminal conviction. As noted, we presume jurors are intelligent persons and nothing supports Suarez’s strained construction that the accomplice instructions somehow rendered neutral or exculpatory accomplice testimony inculpatory. To the contrary, the distinction noted above between the unrestricted use of accomplice testimony to acquit a defendant and its use to convict — which is restricted — reflects a distinction between exculpating and inculpating evidence, rather than an equation of the two. We see no reasonable possibility the jury read the instruction in a manner that would ignore this basic distinction. (See People v. Coddington (2000) 23 Cal.4th 529, 594 [“We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court’s instructions”], overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Suarez’s claim of error in CALCRIM Nos. 334 and 335 is wholly unpersuasive.
E. Accomplice Instructions When a Testifying Defendant Is the Accomplice
Suarez challenges one of the trial court’s instructions concerning accomplice testimony, CALCRIM No. 301. He contends the instruction reduced the prosecution’s burden of proof and violated his right to present a defense by directing the jury to disregard his testimony unless other evidence corroborated it. Because Ortega also testified, she joins Suarez’s challenge asserting CALCRIM No. 301 directed the jury to disregard their testimony absent corroborating evidence. Suarez maintains the instruction harmed him in particular because it is difficult to corroborate an imperfect self-defense claim, which focuses on whether a defendant held an honest but unreasonable belief in the need for self-defense. We are not persuaded. Simply put, it is axiomatic that jury instructions must be read as a whole and not in isolation. We presume jurors are not only intelligent, but specifically “capable of understanding and correlating jury instructions” (People v. Martin (1983) 150 Cal.App.3d 148, 158) and that they do so. (See People v. Holt (1997) 15 Cal.4th 619, 677 [reviewing court must assume jury understood and applied instructions as a whole]; see also CALCRIM No. 200, italics added [“Pay careful attention to all of these instructions and consider them together”].)
Here, as given by the trial court, CALCRIM No. 301 provided: “Except for the testimony of Jose Suarez, Kandice Ortega, Christian Jimenez, and Jesus Flores, which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” (Italics added.) The trial court added the italicized language pursuant to CALCRIM No. 301’s bench notes, which provide: “Insert the bracketed language if the testimony of an accomplice or other witness requires corroboration. (People v. Chavez (1985) 39 Cal.3d 823, 831-832.) [¶] The following... statutes require evidence that corroborates a witness’s testimony:... Pen. Code, [§] 1111 [accomplice testimony]....”
Relying again on Cool, Suarez argues that “when the trial court here told the jury it could not consider Mr. Suarez’s testimony to ‘prove any fact’ unless the testimony was otherwise ‘supported, ’ the court... as in Cool... ‘impermissibly obstruct[ed] the exercise of [the right to present a defense] by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable.’ (Cool v. United States, supra, 409 U.S. at p. 104.)” (Brackets added by Suarez.) The flaw in this argument, however, is that the trial court here provided the jury with additional instructions on the proper use of Ortega’s and Suarez’s testimony, a factor not present in Cool. As noted, CALCRIM Nos. 334 and 335 reinforced to the jury the necessity of corroboration “only if” it relied on coconspirator evidence to convict a defendant, not for acquittal. These specific instructions therefore informed the jury the corroboration requirement applied only when a defendant’s testimony tended to incriminate the codefendant. (See People v. Avila (2006) 38 Cal.4th 491, 562, italics added [“to the extent a codefendant’s testimony tends to incriminate a defendant, it should be viewed with care and caution and is subject to the corroboration requirement”.) Thus, CALCRIM No. 334 specified it was the use of a “statement or testimony of Kandice Ortega or Jose Suarez as evidence against each other” that required corroboration. (Italics added.) The negative pregnant of this formulation stands out quite clearly: testimony exonerating each other or themselves required no corroboration.
If Suarez desired further clarifying or amplifying language, his failure to request any particular refinement forfeits the issue. (People v. Guiuan (1998) 18 Cal.4th 558, 570.) Moreover, it is not reasonably likely the jury read the instructions as a whole to require corroboration of Suarez’s assertedly defensive mental state because the self-defense instruction itself established his viewpoint controlled. Specifically, the trial court instructed the jury to decide whether Suarez “actually believed” he was in imminent danger and whether he “actually believed” deadly force was necessary. (CALCRIM No. 571.) And in making this determination, the jury had to “consider all the circumstances as they were known and appeared to defendant.” (Ibid., italics added.) Accordingly, we reject Suarez’s argument for reversal premised on reading CALCRIM No. 301 in isolation.
F. Special Circumstance Instruction and Accomplice Testimony
Suarez contends the trial court erred by not fully instructing the jury on the corroboration required for accomplice testimony concerning the murder special circumstance. (§ 190.2, subd. (a)(22) [killing by a street gang member].) Suarez notes the trial court properly instructed the jury it could use accomplice testimony to find the special circumstance true “only if” other independent and credible evidence supported the accomplice’s testimony. But instead of instructing the jury — as Suarez contends was required — that the supporting evidence must “tend[] to connect” the defendant to the special circumstance manner of killing, the trial court merely instructed that the evidence had to tend to connect the defendant to “murder” — in other words, to a killing, but without regard to the special nature of the slaying. (CALCRIM No. 708.)
Our Supreme Court has rejected an identical contention. In People v. Hamilton (1989) 48 Cal.3d 1142 (Hamilton), the defendant asserted a flaw in a special circumstance-accomplice instruction that required corroborating evidence “‘tending to connect such defendant with the commission of the offense.’” (Id. at p. 1176, original italics.) The defendant argued “the instruction should have read evidence ‘tending to connect defendant with the special circumstance, ’ because evidence connecting him with the murder would not corroborate accomplice testimony on a special circumstance.” (Ibid., original italics.)
The Supreme Court rejected the claim because the need for corroboration arises by statute for an underlying conviction, not for a special circumstance finding. (§ 1111, italics added [“A conviction can not be had upon the testimony of an accomplice unless it be corroborated”].) As the Supreme Court observed, “a finding is not a ‘conviction’....” (Hamilton, supra, 48 Cal.3d at p. 1176.) Moreover, the purpose of the corroboration instruction is to caution the jury to scrutinize an accomplice’s credibility, given the accomplice’s incentive to lie and escape prosecution for the same offenses charged against the defendant. That purpose is served by requiring corroboration of the underlying offense. As Hamilton explained, “[I]n finding [the] defendant guilty beyond a reasonable doubt, [the jury] has presumably found the accomplice a credible witness....” (Id. at p. 1177, fn. 22.) There is no further requirement to instruct the jury again to consider the accomplice’s credibility concerning the special circumstance if it does not involve an additional offense besides murder. (Id. at p. 1177.) Corroboration on the motive or other details about the special circumstance murder is not required. (Ibid.) We note the rule in Hamilton obviating corroboration on particular details follows from the general rule that independent evidence need not corroborate the accomplice on every point of his or her testimony or on every element of a charged offense, so long as the corroborating evidence satisfies the jury the accomplice is credible. (Vu, supra, 143 Cal.App.4th at p. 1022.)
Suarez sidesteps these principles concerning accomplice testimony, and instead insists Hamilton is no longer good law based on the holding in Ring v. Arizona (2002) 536 U.S. 584 that a jury trial is required for special circumstance findings that narrow application of the death penalty. The death penalty, however, is not an issue here and, in any event, Suarez received a jury trial on the special circumstance allegation. We find no merit in Suarez’s attack on the trial court’s accomplice instructions.
G. Motive Instruction
Suarez argues the trial court’s instruction to the jury that it need not determine his motive for committing any alleged crimes (CALCRIM No. 370) had the effect of reducing the prosecution’s burden of proof by directing the jury it could ignore a required element of the street terrorism charge. Suarez’s failure to raise the issue below does not trigger forfeiture, as the Attorney General suggests, because a contradiction in the jury instructions affects the substantial rights of a defendant (§ 1259), requiring no objection to preserve appellate review (People v. Hillhouse (2002) 27 Cal.4th 469, 503 (Hillhouse)). Suarez’s challenge fails on the merits, however, because the cases he relies on considered the unusual circumstance where the perpetrator’s motive is an element of the crime. (See, e.g., id. at p. 504 [“although motive is not generally an element of a criminal offense, ‘the offense of section 647.6 is a strange beast, ’ and it did have a motive as an element — an unnatural or abnormal sexual interest”].)
CALCRIM No. 370, as given to the jury, provides: “The People are not required to prove that the defendant had a motive to commit... any of the crimes... charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
In contrast, nothing in the crime of street terrorism requires proof of the perpetrator’s motive. The elements of street terrorism are: “(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 56.) The third element does not, as Suarez suggests, touch on motive. According to Suarez, the offense “required the jury to determine if Mr. Suarez shot to benefit the La Jolla gang.” But a perpetrator’s reasons for committing the underlying offense are unimportant. “[S]pecific intent to benefit the gang is not required, ” but rather “‘specific intent to promote, further, or assist in any criminal conduct by gang members....’” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198, original italics.) By the terms of the statute, the prosecutor need only prove that the gang defendant promoted, furthered, or assisted in felonious conduct, not why he or she may have done so. Indeed, our Supreme Court has concluded the conduct does not even have to be gang-related. (Albillar, at pp. 1068, 1070.)
As the court in People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139, explained: “An intent to further criminal gang activity is no more a ‘motive’ in legal terms than is any other specific intent. We do not call a premeditated murderer’s intent to kill a ‘motive, ’ though his action is motivated by a desire to cause the victim’s death. Combined, these instructions here told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it.... There was no error.” (See also Hillhouse, supra, 27 Cal.4th at p. 504 [“Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice”].) Consequently, because the street terrorism offense did not require the jury to determine Suarez’s motive, instructing the jury with CALCRIM No. 370 did not reduce the prosecution’s burden of proof. Suarez’s challenge is therefore without merit.
III
DISPOSITION
The trial court is directed to modify the abstract of judgment to reflect the defendants’ joint and several liability for victim restitution, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J., FYBEL, J.