Opinion
F070399
01-05-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RINCON, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F13906352)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Two men were shot and killed inside an SUV in a shopping center. Immediately before the shooting, defendant had been walking in the same shopping center with his brother, his friend and an individual named Carlos. All four individuals ran after the shooting. Carlos and an eyewitness identified defendant as the shooter. Defendant, his brother and his friend, however, eventually pointed the finger at Carlos as the shooter. A jury convicted defendant of the murders and found true two multiple murder special circumstances.
Defendant claims the court erred in instructing the jury it could infer guilt from the fact that he ran from the scene, but did not instruct the jury it could infer Carlos was guilty from the fact that he ran from the scene. We conclude the trial court had no sua sponte duty to give such an instruction.
Defendant also contends the court erred in failing to instruct the jury that an accomplice's testimony must be viewed with caution and must be corroborated by other evidence. Because defendant points to no evidence that Carlos was merely an accomplice to the murders - as opposed to a lone perpetrator - we reject this claim.
Defendant claims the amount of restitution ordered should be reduced because there is nothing in the record supporting $405 of the $19,330.92 award. We conclude defendant forfeited this argument by failing to raise it below.
Defendant also argues that one of the two multiple murder special circumstances must be vacated and that a parole revocation fine must be stricken. The Attorney General concedes these two issues and we accept the concessions. We otherwise affirm the judgment.
BACKGROUND
Defendant was charged with murdering Tony Torres, Jr. (count 1 - Pen. Code, § 187, subd. (a)) and Tony Torres, Sr. (count 2 - § 187, subd. (a).) It was alleged that defendant personally and intentionally discharged a firearm proximately causing the death of each victim. (§ 12022.53, subd. (d).) A multiple murder special circumstance (§ 190.2, subd. (a)(3)) was attached to each of the two murder counts.
All further statutory references are to the Penal Code unless otherwise stated.
A jury convicted defendant on all charges and found true all of the firearm enhancements and multiple murder special circumstances.
On the firearm enhancements (§ 12022.53, subd. (d)), defendant was sentenced to two consecutive terms of 25 years to life. On the murder counts, defendant was sentenced to two consecutive terms of life in prison without the possibility of parole. (See § 190.2, subds. (a) & (a)(3).)
FACTS
Ramon Riojas
Ramon Riojas (Riojas) testified that around 7:30 p.m. on June 28, 2013, he was at a Little Caesars pizza restaurant at the Fresno Ag Hardware ("Fresno Ag") shopping center on First and Gettysburg in Fresno. The Little Caesars was so crowded that the line stretched outside. While Riojas was waiting in line on the sidewalk outside the Little Caesars, four loud men approached. One of them was wearing a hat, gray jeans, and a gray shirt. The man wedged his way through the line to get to the other side. Riojas told him, " 'Hey, you know, calm down.' " Riojas saw the butt of a gun in his waistband under his shirt. The man then began "reaching back." The man pulled out a gun and pointed it at a black Chevy Blazer that was driving by. The man then fired the gun "[a]bout eight" times towards the front and back of the Blazer. Riojas pushed his son into Little Caesars, closed the door, and called 911. The other three men scattered around the parking lot. They had "[n]ever made it to the location the first person was at." The shooter walked away, then began running. The driver of the Blazer came out of a nearby liquor store and began shouting, " 'Oh, no, my God. Who did this?' " The driver and the shooter saw each other.
Riojas initially described "three or four" men but later testified there were four men.
When the shooting occurred, the other men were "[n]umerous steps" behind the shooter and were not close enough to touch him.
That day, law enforcement apprehended several individuals in a neighborhood. Riojas was asked if he could identify the apprehend individuals. Riojas said he had seen two of the apprehended individuals that night, and that one of them looked like the first man who had gone by him in line at Little Caesars.
Riojas identified the shooter as the man depicted in photographic Exhibit 80. Other testimony established that Exhibit 80 depicted defendant.
Seaver Vang
In June 2013, Seaver Vang (Vang) was an assistant manager at the Little Caesars. Vang was driving in the parking lot when he stopped because someone coming from Little Caesars ran in front of him. The man was holding a gun.
Vang identified the gun-wielding man as the person depicted in Exhibit 82. Other testimony established that Exhibit 82 depicted defendant.
Vang initially testified that he did not see any other person going in the same direction as the gun-wielding man. Vang was then shown "a portion of a transcript" which caused him to remember that, in fact, there was another person running in the same direction as the gun-wielding man. The person wielding the gun wore pants and the person without a gun was wearing shorts. The man without a gun was running in front of the man with the gun.
Phia Yang's Testimony
Phia Yang (Yang) works at a laundromat in the Fresno Ag shopping center at First and Gettysburg. On June 28, 2013, Yang was getting into his van with his family when he heard gunshots. Yang ducked by the van and saw someone with a gun shooting into a dark SUV. Yang only saw "part of the person." From what Yang could remember, the shooter was wearing a "dark shirt." There were six total shots fired.
That day, police showed Yang four people they had detained and asked him to point out the shooter. However, Yang did not recognize any of the people.
Yang's son, Benjamin, was sitting in the back right seat of the van when the shooting occurred. The next day, Benjamin said "he wasn't sure, but he remembered someone without a shirt that was shooting."
Carlos F.'s Testimony
Carlos F., was friends with Nicholas T. from school. Through Nicholas, Carlos met Andrew M.
Carlos F., Nicholas T. and Andrew M. were minors when the events at issue occurred. We will suppress their last names.
On June 28, 2013, Carlos, was "hanging out" at his sister's house with Nicholas and Andrew. The three then walked to Andrew's house. Andrew went inside and came out with defendant. Carlos had never met defendant before. One of defendant's friends drove the five of them to buy a pizza at Little Caesars.
While they were driving, defendant saw a person in the passenger side of an SUV driving by. Defendant told his friend, " 'I think that's his funk.' " Carlos explained that defendant's statement meant the SUV passenger was someone defendant had problems with. Defendant asked Andrew, Nicholas and Carlos, " 'Do you guys have the gun with you?' " Either Andrew or Nicholas handed defendant a black handgun. Carlos had not known either of them had a gun.
The driver dropped Andrew, Nicholas, Carlos and defendant off at the shopping center. When they exited the vehicle, defendant put the gun in his back pocket. The four then walked towards Little Caesars. Carlos was on the phone with his sister and was walking well behind the other three. Defendant approached the SUV and said something to its passenger. The passenger "got out, and like he put his hands up" as if preparing to fight.
Defendant pulled the gun from his back pocket and "cock[ed] it back." The passenger went back into the SUV. Defendant then fired several shots. Carlos did not really recall how many shots defendant fired, but offered "[a]bout three, maybe four" shots. Andrew said, " 'Oh no, Michael, no.' "
Carlos was "scared and shocked" and froze for maybe about two seconds. He hung up on his sister and ran away. He ran with Nicholas around the shopping center and came back through a nearby park. While running, Carlos was stopped by police. Carlos told police that he was going to play basketball, heard some shots, and decided to go to his sister's house. He then changed his story and said he was actually playing basketball with his friends, they decided to get pizza at Little Caesars, and started running when they heard shots. Carlos told police that he did not see any of his friends fire the shots. The police took Carlos to the police station.
Andrew's Testimony
Andrew is defendant's brother. On June 28, 2013, Andrew was at his friend Ernie's house along with Nicholas. Andrew and Nicholas left and began walking to Andrew's house. Along the way, they saw Carlos who then joined them. The three went to Andrew's house.
At some point, defendant and his cousin, Christopher, were planning to leave Andrew's home to go to a bus stop. Andrew, Nicholas and Carlos joined them, and Christopher drove. During the trip, Carlos noticed a blue SUV next to them. Carlos "started saying stuff," but Andrew forgot what exactly was said.
While in the car, Carlos brought out a gun from his pocket and showed it to Andrew. Defendant "took it away from him and said if he wants to be in the car with us he can't hold it ['cause] Carlos was drinking. You could just smell it on him."
Christopher dropped Andrew, Nicholas, Carlos and defendant off by a pub near First Street close to the bus stop. Christopher left. As he exited the vehicle, defendant put the gun in his back pocket.
Andrew, Nicholas and Carlos planned to get Gatorade and a bag of chips at a liquor store in the shopping center, and then play basketball afterwards. Andrew saw that the SUV they had seen earlier was parked by the liquor store. As the foursome was walking towards the store, Carlos ran up behind defendant, grabbed the gun out of defendant's back pocket, approached the SUV and fired three or four shots at the SUV. Defendant never walked up to the SUV. Carlos then threw the gun on the ground and defendant picked it up. They all ran to a nearby park. According to Andrew, when the four met up in the park, Carlos "took the gun back and he pointed it at us, and he said if we say anything he'll kill us and our family." Carlos left and jumped a fence. Andrew does not know where Carlos went after that.
Defendant, Andrew and Nicholas ran back to Andrew's house. Andrew saw police cars across the street from his house, but did not talk to them because Carlos had threatened him.
A few days later, police "raided" Andrew's home and "took" him. Andrew did not tell them what he knew about the shooting because he was afraid. Andrew admitted that he initially lied to detectives.
Nicholas's Testimony
On the afternoon of June 28, 2013, Nicholas was at a friend's house with Andrew playing video games. Nicholas and Andrew left to go to Andrew's house to play basketball. On the way, they saw Carlos, who joined them. The three stopped at a friend's house to get a charger. Nicholas and Carlos stayed outside while Andrew went to the door to get a charger. Defendant and his cousin Chris were at the house. Defendant was going to take a bus to his girlfriend's house. Defendant and Chris offered Andrew, Nicholas and Carlos a ride to go play basketball. The five drove down Donner and turned onto Gettysburg. Defendant asked the three boys if they wanted to get something to drink before basketball and they said yes. As they were nearing Fresno Ag, Nicholas "started seeing like Carlos move like very like very fast motion, and he was telling us - like he was getting very furious and we weren't paying attention to him because we smelled like he was like drinking a little." Carlos also started saying "he knew the guy," but Nicholas did not know to whom he was referring.
Defendant's sister testified that she was at the house when the boys came to get a charger. She claimed she saw Carlos "messing with his waistband." She repeatedly testified that she "couldn't really see" anything in Carlos's waistband but later testified that it "looked like" Carlos had a gun in his waistband.
Defendant's sister's friend, Patrick Day, testified that the boys had retrieved the charger from his house that day. Day testified that Andrew had two friends with him. One of the friends "had a pistol on him." The pistol was a "beigeish color" and remained at the person's waist. Defendant's sister later told Day that Carlos was the one who had had the gun.
Defendant, Nicholas, Andrew and Carlos were dropped off at the Little Caesars shopping center. Carlos exited the car and was going to get back into the car when defendant told Carlos to give him the gun Carlos was carrying. Carlos gave the gun to defendant.
The four began to walk to a nearby liquor store to get drinks before basketball. Defendant was walking in front, then Nicholas, then Andrew, then Carlos. Carlos began "lifting his pants, [and] making other signs like he was just going to do something." Carlos then ran past Nicholas and Andrew and took the gun from defendant. Carlos then shot people in an SUV. Nicholas did hear someone say, " 'No, Michael.' " Everyone ran and met up at the nearby park. Carlos then "got the gun back from [defendant] and like pointed it at us and said if we - if any of us dared to say anything that he was going to kill us and our family."
Nicholas did not tell Detective Cabrera that Carlos had fired the shots and did not say whether he saw the shooting. He admitted that he had lied to Detective Cabrera to protect himself and his family.
Defendant told Nicholas to say defendant had been the shooter in order to protect Nicholas from Carlos.
Nicholas testified that he had been living "off and on" with Mary Ann, who is the mother of defendant and Andrew. Other testimony indicated Nicholas began living "off and on" with Mary Ann after the shooting.
Defendant's Testimony
At about 4:00 or 5:00 p.m. on June 28, 2013, defendant was at his mother's house. Defendant's cousin, Christopher, came to his house. Defendant told Christopher he needed a ride to the bus stop so he could get to his girlfriend's house, where he lived. While defendant was getting ready to leave, his brother Andrew came home with Nicholas and Carlos. Defendant had known Nicholas for years but had never met Carlos. Andrew, Nicholas and Carlos were going to play basketball, so defendant offered them a ride. The five of them left, heading to First and Gettysburg. On the way, defendant saw a black car in front of them. One of its occupants looked at them and was "throwing up signs." Defendant wondered who the man was communicating with until he saw Carlos "throwing out signs, too."
Carlos then told Christopher, " 'Can you drop - can you drop me off at the back because my sister, Yesenia, I need to drop off a gun.' " Defendant never saw the gun, but he knew Carlos had one.
This is in conflict with defendant's later testimony that Carlos gave him the gun.
Defendant and Christopher dropped off Andrew, Nicholas and Carlos. As they were walking away, defendant remembered he needed change for the bus, so he asked if Andrew and Nick wanted something to eat or drink from the store. Defendant then told Carlos that if he wanted to get back in the car, he would need to give defendant the gun because he smelled like alcohol. Defendant had the gun when the four exited the vehicle.
It is unclear whether or why Carlos would have been trying to get back into the car.
Defendant remembered that the bus was almost there, so he told them to hurry. Defendant was walking in front and Carlos was walking in back. Defendant testified that he felt the gun "like fall from my - my back side, so I turn around and I thought the gun dropped, but in my peripheral vision I seen somebody run by and I turned my head and I seen Carlos running, he got the gun in his hand." Carlos then fired the gun "about four times" into a black car. Carlos ran toward defendant with the gun aimed at him and said, " 'Here, take it.' " Carlos then threw the gun at defendant and defendant caught it. Defendant began to run with the gun in his hand. Defendant does not know why he did not drop the gun but testified that "everything was just going on so fast."
Defendant met up with Nicholas, Andrew and Carlos in the park. Carlos "snatched" the gun back from defendant. Carlos pointed the gun at Nick and Andrew and said, " 'If any of you guys say anything I'm going to kill your whole family.' " Defendant jumped in front of the gun and said, " 'You're not going to hurt my brother.' " He pushed Carlos back. Carlos put the gun to defendant's head and said, " 'You know how - you know how this shit goes.' He said, 'Snitches get stitches.' " Carlos then ran away. Nicholas, Andrew and defendant then ran to defendant's mother's house.
Defendant admitted to lying to Detective Cabrera but said he did so because Carlos had threatened him.
Gunshot Wounds
An expert forensic pathologist testified that the victims in the SUV, Tony Torres, Sr., and Tony Torres, Jr., died from brain perforations caused by gunshot wounds. Tony Torres, Sr., had one gunshot wound and Tony Torres, Jr., had several gunshot wounds.
Surveillance Videos
Police were able to obtain video surveillance footage from a hardware store, Little Caesars and a parlor shop. None of the videos showed the shooting itself. The videos showed four people walking, with defendant in front, then Andrew, then Nicholas, then Carlos. Nicholas was wearing a gray shirt and Carlos was not wearing a shirt. One of the videos showed defendant carrying a gun and running through a breezeway near the Fresno Ag store.
Officer J. Peter Ressler's Testimony
Officer J. Peter Ressler was dispatched to the scene. As he was pulling into the shopping center, he received updated information that the suspects were running to the east of a nearby building. Ressler saw people in the nearby Rotary West Park who were pointing eastbound. Ressler exited his patrol vehicle to see what they were pointing at and observed "what appeared to be a Hispanic male with a thin build wearing a white shirt and black shorts running out of the east gate of the park." He also observed two additional subjects running in front, but they had already exited the park gate. Ressler and his partner pursued the subjects but were unable to locate them. However, two other officers advised Ressler that they detained Carlos. Carlos was "wearing matching clothing and had the same build" as the subject Ressler had seen running out of the park.
Officer Jacky Parks's Testimony
Officer Jacky Parks also responded to the scene amid reports that individuals were running through the park. Parks heard that one of the individuals was wearing a white T-shirt and black shorts and had been running eastbound through the park. Parks went to the neighborhood east of the park. A person driving down the road pointed out a residence that he believed the subjects might have run to as they exited the east side of the park. Parks observed "a Hispanic male, it looked like a teenager ... walking eastbound wearing a white T-shirt and black shorts." The male identified himself as Carlos F. Officer Parks observed that Carlos was breathing heavy and was sweaty. He displayed no signs of intoxication, and Parks did not recall smelling any alcohol on his person.
Carlos told Officer Parks that he had been playing basketball in the park with friends and heard some loud "pops." He said he then left the park to go to his sister's house. However, Carlos did not appear to have been traveling in a direction consistent with going to his sister's house. Officer Parks confronted Carlos on this point, and Carlos began to describe another version of events. Carlos said he had been playing basketball and then decided to get pizza at Little Caesars. He said that while his friends were walking ahead of him, he heard gunshots and then turned around and started running. Carlos did not say he knew who had fired the shots and did not identify defendant as the shooter.
Patrice Clement's Testimony
Patrice Clement is a crime scene investigator with the Fresno Police Department. She responded to the scene of the shootings at about 10:30 p.m. Clement recovered three shell casings and a live bullet at the scene. The rear driver's side and front passenger's side windows of the SUV were open. There was no shattered glass on the driver's side of the SUV.
Gunshot Residue Testing
Leonard Cabrera is a homicide detective with the Fresno Police Department, and was the lead detective on the case. When Detective Cabrera was notified that a homicide had occurred, he received a "quick rundown of what actually happened" from the on-scene detective. The on-scene detective informed Detective Cabrera that Carlos had been detained. Detective Cabrera directed the on-scene detective to have Carlos tested for gunshot residue.
Crime scene technician R. Scott May, Jr., took samples from both of Carlos's hands for the gunshot residue test. The samples were analyzed by a criminalist with the Department of Justice. The samples tested negative for gunshot residue. The criminalist testified that gunshot residue tests can be negative because the individual never fired a firearm. The test can also be negative when the individual "did fire a firearm, but none of the particles landed on those surfaces that were sampled or perhaps they did fire a firearm, but there's been enough time has passed where those particles have actually fallen off the person's hands by the time samples were collected." Gunshot residue can be removed by washing hands, putting hands in pockets and wiping hands. Thirty percent of known suicides by gunshot result in negative gunshot residue tests.
Officer Parks transported Carlos to police headquarters and stayed with him until Officer Jouroyan arrived and relieved Parks. Parks does not recall whether Carlos used the restroom. While he would have permitted Carlos to use the restroom, he would have prevented him from washing his hands to ensure his hands could be tested for gunshot residue. Jouroyan testified he would not permit a shooting suspect to wash their hands.
Carlos's First Interview with Detective Cabrera
Detective Cabrera interviewed Carlos on the night of the shooting. Carlos said he had no idea what had happened. Carlos said he had been playing basketball with his friend, Gabriel. Carlos wanted to get pizza, but Gabriel did not. Carlos was alone by the Little Caesars when he heard gunshots and started running. Carlos said he heard "an exchange of words" and "heard 'funk' and that's when the shooting occurred." Detective Cabrera explained at trial that young people use the word "funk" to "describe disturbances or some type of disagreements or not getting along with another person."
This quotation comes from Detective Cabrera's testimony recounting what Carlos had said during the interview.
Carlos claimed he did not see the shooting or who was holding the gun. During the interview, Carlos mentioned individuals named "Erupt" and "Incite."
Carlos's Second Interview with Detective Cabrera
Detective Cabrera interviewed Carlos again on July 1. Carlos initially told Detective Cabrera he had not seen a gun while he was in the car, but later said he saw Andrew give defendant an object which Carlos believed was a gun. Carlos also said he heard the word "funk" while they were driving to Fresno Ag.
Carlos told Detective Cabrera that he heard words exchanged between defendant and Tony Torres, Jr., just prior to the shooting. Carlos said that when the shots were fired, he froze and Nicholas had to say, " 'Come on, Carlos, come on, let's go.' " Carlos then followed Nicholas. Carlos ran around a building into a park. He then called his sister and said he was going home.
Carlos explained that Incite was the "tagging name" of one of Nicholas's friends. Carlos said Incite told him that if he said anything, he was going to kill him and "shoot up his house." Carlos also said Andrew had threatened him.
Andrew's Interview with Police
In an interview with police on July 3, 2013, Andrew said he was heading towards Rotary Park with friends around 5:30 p.m. On the way, Andrew, Carlos and Nicholas headed to a store on First and Gettysburg to buy Gatorade. Before they went in to the store, they heard gunfire and ran. They went to the park and "chilled."
Defendant cites from the transcript of Andrew's interview, and we will do the same.
Initially, Andrew claimed defendant was not with them and was "out drinking." Detective Cabrera accused Andrew of lying and invited him to start over "from the beginning." Andrew said they were going to the park, and defendant was drunk in a nearby alley. They went to "the store" and heard gun shots. Andrew and Nicholas ran away together.
Detective Cabrera again confronted Andrew and accused him of "still leaving out a lot of stuff." Andrew admitted that defendant and a passenger in a black SUV got into an argument. The passenger exited the SUV. Defendant told Andrew, " '[G]et out of here, Andrew, get out of here.' " Andrew began to leave and Nicholas followed. They heard gun shots and ran. Andrew looked back and saw defendant and Carlos running towards Fresno Ag.
Andrew claimed he did not know defendant had a gun, and he did not see the shooting. However, when Detective Cabrera asked, "I know your brother had beef with this guy, and stuff went down. Why did he shoot him? Why - why did that happen?" Andrew replied, "I don't know. I think it's because he was drunk and then like, he's drunk like he was looking at him and then they're just mugging each other and stuff. He's thinking like—"
After a bathroom break, Andrew said he wanted to tell officers a little bit more about what happened. He admitted that he had seen defendant running with a black gun after the shooting. Andrew said he had not told officers about the gun before because he was "[k]ind of like covering him but there's like no way to cover for him if guys know already."
When Andrew told a different version of events at trial, he claimed that on the way to the bathroom break during the interview, officers were "scaring" him and saying he was going to be in trouble if he did not speak up more.
Defendant's Interrogation
Defendant was arrested on July 3, 2013, and interrogated that evening. He claimed he did not know the victims, was not near the shopping center that day, and had been at Celebration Church in Clovis. Detective Cabrera tried to follow up on whether defendant was at Celebration Church but was unable to confirm defendant's claim.
Dr. Scott Fraser
The defense called Dr. Scott Fraser as an expert on eyewitness memory. Dr. Fraser opined on how eyewitness perception and memory can be unreliable.
Motive
Except for Carlos's description of defendant mentioning "funk" in connection with the SUV, Detective Cabrera was never able to establish any connection between defendant and Tony Torres, Jr. or Tony Torres, Sr.
DISCUSSION
I. Third Party Flight Instruction
a. The Trial Court Had no Sua Sponte Duty to Give a Third Party Flight Instruction
"In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows:
"The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine." (§ 1127c.)
In this case, the court instructed the jury with CALCRIM 372, as follows:
"If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
On appeal, defendant contends the trial court erred in failing to also instruct the jury that it could infer that because Carlos fled immediately after the crime, he was aware of his own guilt. Defendant acknowledges he did not request such an instruction but contends the trial court nonetheless had a sua sponte duty to give such a third party flight instruction. We disagree.
The flight instruction the court did give, which related to defendant only, "was correct, and defendant's failure to propose any modification to the instruction forfeits the claim of instructional error. [Citation.] " (People v. Rangel (2016) 62 Cal.4th 1192, 1223.)
Even if the claim had not been forfeited, we would conclude the court had no sua sponte duty to instruct the jury on third party flight.
"Although a trial court is required by statute to instruct on flight when the prosecution relies on evidence of flight by a defendant as tending to show guilt ([] § 1127c), there is no similar statutory requirement to instruct when the defense relies on flight by third parties. Nor does third party flight 'qualif[y] as a general principle of law vital to the jury's consideration of the evidence' such that the jury must be instructed on it even in the absence of a request. [Citation.] Moreover, '[t]he logic of the inference' that such flight could also indicate consciousness of guilt on the part of third parties would have been 'plain' to jurors, even in the absence of instruction to that effect. [Citation.] In addition, 'the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing
whether the prosecution has met its burden of proof.' [Citation.]" (People v. Rangel, supra, 62 Cal.4th at p. 1224, fn. omitted.)
b. Defendant's Ineffective Assistance of Counsel Claim is Rejected
In the alternative, defendant claims his trial counsel was ineffective for failing to request a third party flight instruction.
" ' " 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]' " ' [Citations.]" (People v. Johnson (2016) 62 Cal.4th 600, 653.)
" '[A]n appellate court's ability to determine from the record whether an attorney has provided constitutionally deficient legal representation is in the usual case severely hampered by the absence of an explanation of an attorney's strategy.' [Citation.] For this reason, we long ago adopted the rule that ' "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citations.]" ' [Citations.]" (Ibid.)
Defendant argues that "[a]ll the trial court would have had to do was include a single sentence in its version of CALCRIM 372 authorizing the jury to draw the same inferences about Carlos's flight as it could appellant's." Defendant also contends that there "could be no conceivable reason for counsel not requesting that CALCRIM 372 be modified to include reference to Carlos's flight as well as appellant's." (Id. at p. 42.) We disagree.
The sole benefit defendant would have received from the proposed instruction is that the jury would have been expressly told they could infer Carlos's guilt from his flight. This benefit is of arguable value because " '[t]he logic of the inference' " that ... flight could also indicate consciousness of guilt on the part of third parties would have been 'plain' to jurors, even in the absence of instruction to that effect. [Citation.]" (People v. Rangel, supra, 62 Cal.4th at p. 1224.) And that marginal benefit would have come at a cost because CALCRIM No. 372 is not entirely favorable to the party hoping the jury makes an inference of guilt from the fact of flight. While the instruction permits such an inference, it also makes clear the jury need not accept the inference of guilt and expressly prohibits a conclusion of guilt based on flight alone. Defense counsel could have reasonably concluded: (1) that the jury would have been aware of the guilt-from-flight inference even in the absence of instruction; (2) that it was not worth reminding the jury that there are other, non-incriminating inferences to be drawn from flight; and (3) that it was not worth suggesting to the jury that they could not conclude Carlos was the shooter merely because he fled. Because there is a conceivable strategic reason for counsel to not request modification of CALCRIM No. 372 to include Carlos, we reject defendant's claim of ineffective assistance of counsel.
II. The Trial Court did not Err in Failing to Instruct the Jury that an Accomplice's Testimony Must be Viewed with Caution and Must be Corroborated
Defendant contends that the court erred in failing to instruct the jury that an accomplice's testimony implicating defendant must be viewed with caution and corroborated by other evidence.
"When a jury receives substantial evidence that a witness who has implicated the defendant was an accomplice, a trial court on its own motion must instruct it on the principles regarding accomplice testimony. [Citation.] This includes instructing the jury that an accomplice's testimony implicating the defendant must be viewed with caution and corroborated by other evidence. [Citations.]" (People v. Houston (2012) 54 Cal.4th 1186, 1223.)
Under section 1111, a conviction may not be based on the testimony of an accomplice unless it is corroborated. The statute defines an accomplice "as 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.)
Defendant argues that Carlos meets section 1111's definition of accomplice. Consequently, accomplice testimony instructions should have been given.
We acknowledge that there was some evidence Carlos met section 1111's literal definition of an accomplice. However, there is more to the definition of "accomplice" than section 1111 provides. "Although section 1111 defines an accomplice as '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,' the law further requires a relationship between the defendant and accomplice, either by virtue of a conspiracy or by acts aiding and abetting the crime. [Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 212, italics added.)
Here, there was testimony that defendant was the shooter. There was also contrary testimony that Carlos was the shooter. However, defendant points to no evidence that either he or Carlos conspired with, or aided and abetted, the other. To the contrary, defendant correctly observes that the defense theory was that Carlos shot the victims and defendant "had nothing to do with it" and "Carlos, meanwhile, testified that [defendant] was the shooter." Because there was not sufficient evidence Carlos was an accomplice to the shooting, "either by virtue of a conspiracy or by acts aiding and abetting the crime" (People v. Ward, supra, 36 Cal.4th at p. 212), we reject defendant's claim of instructional error.
III. One of the Multiple Murder Special Circumstances Must Be Stricken Defendant contends one of the multiple murder special circumstances must be stricken. The Attorney General concedes the issue and we accept the concession. (See People v. Halvorsen (2007) 42 Cal.4th 379, 422; People v. Allen (1986) 42 Cal.3d 1222, 1273.)
IV. The Parole Revocation Fine Must Be Stricken
Defendant contends the parole revocation fine (§ 1202.45) imposed by the trial court must be stricken. The Attorney General concedes the issue and we accept the concession. (See People v. Battle (2011) 198 Cal.App.4th 50, 63.)
V. Restitution
a. Background
The court ordered defendant to pay direct restitution to the Victim Compensation and Government Claims Board (see Gov. Code, §§ 13900 et seq.) in the amount of $19,330.92. Defendant concedes that $18,925.92 of the award was proper. However, he contends that the remaining $405 of the award was not supported by substantial evidence.
Hereafter, "the Board." --------
A memorandum from the Board to the probation officer requesting restitution lists five line items pertaining to two victims totaling $18,925.92. The Board's memorandum also contains a line referencing a third victim with a separate claim number but no figure for benefits paid.
The probation officer's report to the trial court also has the $18,925.92 total. However, below that number is handwriting including what appears to be the figure "$19,330.92."
The Attorney General posits that "[p]ossibly, the additional $405 were for benefits paid" for the third victim whose benefits amount had not been set forth in the Board's memorandum.
b. Analysis
The Attorney General argues that defendant did not raise this issue below and has thereby forfeited it. We agree.
A defendant forfeits a challenge to the factual basis for a restitution award if he or she fails to raise it below. (See People v. O'Neal (2004) 122 Cal.App.4th 817, 820, but see In re K.F. (2009) 173 Cal.App.4th 655, 660-661 .)
Defendant says it is "speculation" for the Attorney General to theorize that the $405 is for the third victim listed in the Board's memorandum. We agree. But that is exactly why these issues should be brought up at, or prior to, the sentencing hearing. If the issue had been timely raised, the government could have provided an explanation for the extra $405 or would have had to concede there were no legitimate grounds for requesting the extra $405. Absent an objection, defendant cannot now raise a belated challenge to the restitution award.
DISPOSITION
One of the multiple murder special circumstances is hereby vacated, and the parole revocation fine imposed under section 1202.45 is hereby stricken. The matter is remanded to the trial court to have a new abstract of judgment prepared and transmitted to all appropriate parties and entities. The judgment is otherwise affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.