Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge., Super. Ct. No. 98NF2206.
James M. Crawford for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, J.
Defendant Henry Rodriguez was convicted of one count each of first and second degree murder and one count of conspiracy to commit murder for the killing of Jeanette Espeleta and her unborn child. The actual shooter, coconspirator Richard Tovar, was separately tried and convicted. We affirmed his conviction in People v. Tovar (June 30, 2003) G028242 (nonpub. opn.).
Defendant was sentenced to 25 years to life for the first degree murder and 15 years to life on the second degree murder, to run consecutively. The sentence for conspiracy was stayed under Penal Code section 654 (all further references are to this code unless otherwise stated).
Defendant appeals on several grounds, claiming a retrial after we reversed his first conviction constituted double jeopardy, admission of testimony by a jailhouse informant violated his right to counsel, and it was error to deny his motion for mistrial on the ground of group bias for challenges to two African-American potential jurors. He argues admission of testimony of one of the participants in the crime was inadmissible hearsay and violated his rights under the confrontation clause. He also complains of the exclusion of purported exculpatory testimony. He asserts there was insufficient evidence to support conviction, challenges several jury instructions, claims prosecutorial misconduct, and criticizes his consecutive sentences. Finding none of these arguments meritorious, we affirm.
FACTS
Espeleta was last seen alive on July 17, 1998 when she was eight-months pregnant. Less than a month before she disappeared, in initiating the process to collect child support, she had named Tovar as her unborn child’s father. Another woman had previously filed a claim for support naming Tovar as the father.
Two days before the murder, defendant’s girlfriend, Kari Tune, lent her car to Tovar. Defendant asked if he could have the windows tinted, and she agreed, believing it was a gift from him. It was Tovar, however, who actually paid.
The next day defendant and Tovar went to a watercraft shop where Tovar rented a boat. The owner of the shop spent about 2 hours going over the boat with defendant and Tovar; normally the process takes about 20 minutes. Defendant and Tovar were particularly concerned about the expired license tags on the boat trailer and nonfunctioning signal and brake lights. They also requested a boat cover. Defendant asked questions about the boat’s lights for nighttime operation. The men would not leave with the boat until all problems had been corrected. They stored the boat at Nicholas Gray’s house.
The night before the murder, defendant stayed at Tune’s house. The next morning, defendant drove Tune to work so he could borrow her car. Around 8:30 a.m., he called Tune at work and was adamant she should not let Tovar borrow her car because Tovar was going to use it “to do something stupid”; he was going to hurt a pregnant girl. While Tune and defendant were trying to think of an excuse to give Tovar if he asked to borrow the car, Tune suggested they tell him the car had been impounded. Defendant then hid the car in his parent’s garage.
That same morning, Tovar and defendant went to Home Depot where they bought some carpet cleaner, a tarp, and some “Quick Link” chain fasteners.
Espeleta worked at a bank in Santa Ana. Around 2:00 p.m. on July 17, while walking to lunch with a coworker, Espeleta exclaimed, “Oh, my god. That’s my baby’s father. I have to go.” The coworker saw a dark-color sports utility vehicle pass by; looking anxious and shocked, Espeleta said she had to leave and ran towards her own car.
A couple of hours later, defendant and Tune were on the way to pick up Tune’s son from the babysitter when defendant received a page; he “mumbled 187” and started “acting very nervous, very excited,” and “[f]rantic].” He was “kind of mumbling to himself saying that they are just messing around, they are not serious.” Once they returned to Tune’s home, defendant made a phone call. When Tovar arrived at the house shortly thereafter, defendant went outside to talk to him. Tune heard Tovar telling defendant, “Hurry up, come on, what are you doing, hurry up, come on, let’s go, come on.”
Defendant told Tune he had to leave, despite the fact they had made plans for the evening. Tune went without defendant. When she arrived and opened the trunk of her car to leave her purse inside, she discovered a large black plastic tarp, which she threw out into the parking lot.
The afternoon of the killing, Tovar arrived at Gray’s house in Espeleta’s car; her body was in the front seat. Gray held the boat cover over the car while Tovar put the body into the trunk. On Tovar’s instructions, Gray paged defendant with the message “187.” When defendant called him in response, Gray told him, “Richard said to be ready.” He also said “she was in the car” and was dead. Defendant said “she is dead[]” and acknowledged he understood what “be ready” meant.
Gray and Tovar picked up defendant at Tune’s house to go to the marina. Tovar drove Espeleta’s car; although Gray had planned to drive Tovar’s S.U.V., defendant insisted he drive because Gray had no driver’s license. When they arrived, they decided not to put the body in the boat because there were too many people around. Instead they went to a more private area where Tovar wrapped the body in a black plastic tarp. Gray and Tovar put it in the boat while defendant stood guard. All three put the cover on the boat to hide the body and then returned to the harbor. Gray took a chain and some rusty 25-pound metal exercise weights from the S.U.V. and put them in the boat; they looked like the same type of weights he had seen at defendant’s home.
When the boat was out at sea, Tovar wrapped the body with weights and the chain and sealed the chain with the Quick Link fasteners. The three of them pushed the body into the water. Before the boat was returned, Gray cleaned it to remove blood spots. The boat owner testified that when the boat was returned, it was spotless; that was unusual. In a police search of the boat, packing for the Quick Link fasteners was found. A search of the trunk of Tune’s car uncovered packages of Quick Link fasteners identical to those found in the boat.
Tovar later told Gray he drove to Tijuana and burned Espeleta’s car. Multiple searches were conducted in the area where Espeleta’s body had been dumped into the ocean, but no remains were ever recovered.
Two days after the killing when Tune and defendant were watching television news, he started crying and saying he wanted to tell her something so she did not learn about it on the news. He said he had gone with Tovar to dump the body. In the next several days he told her Tovar had shot Espeleta. He also explained how they had disposed of the body in the ocean after wrapping her in a tarp and weighing her down. Defendant asked Tune to provide an alibi for him, which she did when initially asked by the police.
In a police interview, defendant stated he had gone to Home Depot with Tovar to buy carpet cleaner, a drop cloth, and chain links. He also said he knew Tovar had gotten a woman pregnant. He admitted he had helped Tovar pick up a boat, although he denied going out on it. At the rental shop, he told Tovar a brake light wasn’t working; he did not want him to get a ticket. He also admitted police might find his fingerprints on the steering wheel because he had touched it when he checked out the boat.
After defendant was arrested a few days later and put in jail, he had a conversation with a jailhouse informant, Michael Garrity, who was in an adjoining cell. Garrity testified defendant initiated a conversation about the killing, told him his case was high profile, and asked whether Garrity had seen him on television. Defendant said a friend of his had shot a woman because he did not want to pay support for her unborn child; defendant said he was the only one who knew where the gun was. Defendant revealed he had helped plan the killing. Before the shooting he had come up with the plan to dump the victim’s body in the ocean and had obtained a boat to do so.
Garrity additionally testified defendant said he and his friend drove with the body in the car for a couple of days. Defendant stated they bought a chain and locks at Home Depot and used those and 25-pound weights to weigh down the body when they dumped it into the ocean; defendant drew a picture of the locks and chain. He laughed when he explained what they had done, making gestures as if going down into water, and described the victim as “shark bait.”
Garrity testified defendant said he was surprised police had not found his fingerprints in the boat because he had played with the boat’s radio. Defendant also stated that his friend took the victim’s car to Mexico and burned it.
Additional facts are set out in the discussion.
DISCUSSION
1. Double Jeopardy
Defendant contends that, without admission of his pretrial statements in the first trial, he basis for our earlier reversal, there was insufficient evidence to sustain his conviction, and therefore retrial was barred by the prohibition against double jeopardy. Specifically, he maintains that had his confession not been admitted, he would never have testified in the first trial. He further asserts that our prior opinion found that the only evidence supporting the conviction was his trial testimony. This argument is flawed.
First, his claim he would not have testified in the first trial absent admission of his pretrial statements is purely speculative even if likely. Second, he misreads our prior opinion. We did state “that, in light of [defendant’s] trial testimony, his convictions are supported by substantial evidence.” (People v. Rodriguez (June 30, 2003, G028236) [nonpub. opn.] p. 14.) However, contrary to defendant’s assertion, we never held that this was the “only” evidence supporting the conviction. No inference of insufficiency can be drawn from the fact we did not discuss other evidence. Plainly, we did not reverse the judgment for insufficiency of the evidence; we remanded for a new trial. (Id. at p. 17.)
Where a conviction is reversed due to insufficiency of the evidence, it is the equivalent of a judgment of acquittal, barring a second trial. (Burks v. United States (1978) 437 U.S. 1, 10-11 [98 S.Ct. 2141, 57 L.Ed.2d 1].) But “where the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.” (Lockhart v. Nelson (1988) 488 U.S. 33, 34 [109 S.Ct. 285, 102 L.Ed.2d 265].)
Defendant contends Lockhart is distinguishable because it dealt with a trial on a prior conviction for purposes of an increased sentence as opposed to a trial on the underlying crime as is the case here, and “[i]t would be inappropriate for [this court] to extend” its holding. But we agree with the Attorney General that Lockhart did not limit its holding to that specific fact situation. (Lockhart v. Nelson, supra, 488 U.S. at p. 40.)
In addition, California law follows Lockhart. (People v. Mattson (1990) 50 Cal.3d 826, 853, fn. 16 [where verdict reversed due to erroneous admission of the defendant’s confession, double jeopardy did not prohibit retrial; “mere trial court error in the admission of evidence does not preclude retrial if, with the erroneously admitted evidence, there was sufficient evidence to support the . . . conviction”]; see also People v. Venegas (1998) 18 Cal.4th 47, 95 [erroneous admission of DNA evidence did not bar retrial since that evidence sufficient to prove guilt beyond reasonable doubt].) Double jeopardy did not prohibit defendant’s retrial.
2. Testimony of Jailhouse Informant
Defendant argues that testimony of a jailhouse informant was erroneously admitted because it was obtained in violation of his Sixth Amendment right to counsel. He contends the government housed the informant, who had provided information about other inmates, near defendant, who had counsel, so the informant could actively and repeatedly question defendant about the details of the crime. The record does not bear out defendant’s factual assertions and the law does not support his argument.
a. Background
Before trial began, defendant made a motion to exclude the testimony of informant Michael Garrity. At the hearing on the motion the parties stipulated that Garrity had written letters to police with information in two different cases, one involving Juan Huizar, before providing information about defendant. They also stipulated that Garrity did not speak Spanish. There was a further stipulation that after police interviewed Garrity about his conversation with defendant, he provided additional information, which the prosecution did not seek to introduce.
A detective who first interviewed Garrity about his conversation with defendant testified that Garrity did not ask for any benefit in exchange for the information, but said he had contacted the police because it “was the right thing to do.”
In support of the motion, defendant called Huizar who was in prison after pleading guilty to murder. He testified that, when he was in jail, he never met Garrity or spoke to anyone about his crime. He also testified he spoke Spanish primarily. A defense investigator testified that when she interviewed Huizar, he stated all his cellmates were Hispanic and he would never have talked to a “‘white dude’” about his case.
After Garrity provided information to police about Huizar and was put in protective custody in a cell next to defendant and defendant told him about the crime, Garrity contacted police.
In support of the motion defendant argued Garrity was a “government agent” because he had provided information on several cases and defendant had counsel at the time Garrity spoke to him. He conceded there was no evidence to show the government had placed Garrity in the cell next to defendant’s but argued Garrity still qualified as an agent of the government because he “had some ulterior motive.”
The court denied the motion, finding there was no evidence police had specifically put Garrity next to defendant, and that Garrity had made the first contact with police, not the other way around.
b. Testimony Properly Admitted
After a defendant has been charged with a crime and has counsel, police may not deliberately seek to elicit information from him in the absence of his lawyer. (Massiah v. United States (1964) 377 U.S. 201, 206 [84 S.Ct. 1199, 12 L.Ed.2d 246].) Any statements obtained under such prohibited circumstances are inadmissible. (People v. Slayton (2001) 26 Cal.4th 1076, 1079.)
To prevail on a motion to exclude on this ground, defendant must provide evidence to “‘establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.’ [Citation.] The requirement of agency is not satisfied when law enforcement officials ‘merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.’ [Citation.] A preexisting arrangement, however, need not be explicit or formal, but may be inferred from evidence of the parties’ behavior indicative of such an agreement. [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 67.)
Defendant failed to meet his burden. The evidence reflects there was no prior arrangement between Garrity and the police. That Garrity had provided information in two other cases is not sufficient to raise the inference of a preexisting agreement as to defendant’s case. Moreover, Garrity did not seek any benefit for the information. Finally there is no evidence of a deliberate elicitation of the information. Defendant initiated the conversation with Garrity when he bragged about his part in the crimes and Garrity contacted police with the information. There was no error in admitting Garrity’s testimony.
3. Peremptory Challenges
a. Background
During jury selection the prosecution used peremptory challenges to excuse two African-American jurors. Defendant asserts the court erred in denying his motion for mistrial under Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson) because the prosecution did not show a legitimate reason for excusing them. The Attorney General contends the court correctly ruled the challenges were not based on race. We reject defendant’s claim.
After the prosecutor excused the second of the two jurors in question, defendant made a motion under Batson. The court stated “there appear[ed] to be an inference of discrimination for the purpose of an inquiry” and asked the prosecution for an explanation of the challenges.
As to juror D.N., the prosecutor relied on two reasons. First, about three years before, D.N.’s friend had been shot and killed by police after a police chase. D.N. stated he “possibly” might be prejudiced against police testimony in this case based on that incident. In addition, about 10 years ago, D.N. had been robbed at gunpoint and had complained to the police department about its lack of success in solving the crime. The prosecutor believed that showed enough potential bias to excuse him.
As to juror M.V., the prosecutor “liked him quite a bit” and “wanted to keep” him, but for a few minutes M.V. “refused to make eye contact with [him]” even though he was sitting only a few feet away. The court asked for elaboration of this point, and the prosecutor said it indicated to him “that maybe there is a juror who has a bias against the People or against law enforcement . . . .”
When the prosecutor also relied on the fact M.V. “was a one out of a one, two and three,” the court asked for further elaboration. The prosecutor explained that during voir dire he asked jurors to describe themselves as a one – a leader, a two – in between, or a three – a follower. M.V. unhesitatingly identified himself as a leader. This, in connection with the lack of eye contact, caused concern “that perhaps he wouldn’t deliberate[, a]t least not fairly and openly.” The prosecutor stated, “I am looking at all the other jurors laughing, making eye contact, being social. And [M.V.] sat here looking down and not interacting, not being social. . . . I am entitled to kick who I don’t think is going to deliberate in a manner that’s conducive to reaching verdicts.”
The prosecutor also stated that “as an officer of the court and as a D.A.” he tried “to keep as many racial minorities on juries” as possible, “particularly since [his] two children are both adopted,” and he was “particularly sensitive to racial issues,” but “unfortunately, [he] just couldn’t in this case so far with those two.”
Thereafter, defense counsel had no further statements in support of the motion. The court denied it, finding “there [were] race neutral reasons” for both challenges. As to D.N., it stated that it was likely he even could have been excused for cause. As to M.V., the court “accept[ed] the People’s representation” for excusing him.
b. Legitimate Challenges
A defendant’s right to trial by a representative jury is violated when peremptory challenges are used to exclude jurors solely on the ground of group bias, including race. (Batson, supra, 476 U.S. at p. 89.) If, as here, the trial court finds the appearance of group bias, the prosecution must make a prima facie showing the challenges were based on a permissible race-neutral reason. (Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410, 162 L.Ed.2d 129]; People v. Lancaster (2007) 41 Cal.4th 50, 74.) Where the court makes a sincere and reasoned attempt to analyze the reasons for the challenges, we review its decision for substantial evidence (People v. Ward (2005) 36 Cal.4th 186, 200), exercising “great restraint” (People v. Burgener (2003) 29 Cal.4th 833, 864), and giving deference to the determination (People v. McDermott (2002) 28 Cal.4th 946, 971).
We reject defendant’s claim the court did not make a sincere or reasoned attempt to evaluate the prosecutor’s reasons. After it asked for the reasons for excusing the two persons, the court asked the prosecutor for more detail and further explanations. As to D.N., it found there was probably a ground to challenge for cause. This plainly shows the court evaluated the prosecution’s explanation.
Defendant points to D.N.’s statements that he would be able to listen to police officers’ testimony and not let his prior negative incidents with police affect his ability to be fair. But that D.N. gave contrary statements does not show a failure to properly evaluate and supports a finding the challenge was race neutral.
Although the finding as to M.V. was less explicit, it can reasonably be inferred the court sufficiently considered the explanation, which was consistent with M.V.’s conduct and not otherwise implausible or impermissible. Potential jurors may be excused based on intangibles, including body language. (People v. Stanley (2006) 39 Cal.4th 913, 943-945 [dismissal based in part on body language upheld]; People v. Huggins (2006) 38 Cal.4th 175, 235-236 [upholding dismissal of prospective juror who appeared unfriendly to prosecutor and smiled at the defendant]; People v. Phillips (2007) 147 Cal.App.4th 810, 819 [“Peremptory challenges based on alienating ‘“bare looks and gestures”’ are race neutral and not improper”].)
4. Tovar’s Statement to Gray About Boat Rental
Defendant challenges admission of a statement by Tovar to Gray that it was defendant’s idea to rent the boat to dispose of the body. He claims it was inadmissible hearsay and that it violated the confrontation clause of the Sixth Amendment under the analysis in Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597]. We disagree.
a. Confrontation Clause
Despite a discussion of the case, defendant concedes the statements were nontestimonial and that Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] does not apply. But, he argues, admission of the statements violated the confrontation clause under Roberts. This argument is legally incorrect.
In People v. Cage (2007) 40 Cal.4th 965, relying on Davis v. Washington (2006) 547 U.S. __ [126 S.Ct. 2266, 165 L.Ed.2d 224], the court stated “that Roberts . . . and its progeny are overruled for all purposes, and retain no relevance to a determination whether a particular hearsay statement is admissible under the confrontation clause. As the court indicated in Davis, ‘[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.’ [Citation.] Thus, there is no basis for an inference that, even if a hearsay statement is nontestimonial, it must nonetheless undergo a Roberts analysis before it may be admitted under the Constitution.” (People v. Cage, supra, 40 Cal.4th at pp. 981-982, fn. 10.) “[T]he confrontation clause is concerned solely with hearsay statements that are testimonial [citation] . . . .” (Ibid.)
b. Hearsay
We also reject defendant’s claim the statements were inadmissible hearsay because they did not qualify as a declaration against penal interest under Evidence Code section 1230 and did not fall under the coconspirator exception under Evidence Code section 1223. During the hearing on the motion the court confirmed with defense counsel that he was “not really objecting to [the statements] within the meaning of the [Evidence Code section] 1223 exception . . . . This is strictly a prior inconsistent statement, lack of reliability, . . . Roberts type analysis and objection by the defense.” After stating Crawford did not apply, counsel responded, “[s]o we are back to . . . Roberts.” The court asked, “That’s the crux of your argument?” Counsel affirmed, “Yes. And I acknowledge that co-conspirator exception under Evidence Code section 1223 is a well grounded exception under . . . Roberts; however, it is the adequate indicia of reliability that we are dealing with.” (Italics added.)
If defendant might have originally been objecting to the statements on the basis of Evidence Code section 1223, he abandoned that ground during argument. In addition, there is nothing in the record to show defendant relied on Evidence Code section 1230 in the trial court. Thus, neither of those grounds is cognizable on appeal. (People v. Demetrulias (2006) 39 Cal.4th 1, 22). We deny defendant’s request for judicial notice as to Tovar’s availability as a witness because the information is irrelevant to our decision.
5. Tovar’s and Tune’s Description of the Killing
Defendant attacks admission of testimony by Gray about Tovar’s statements to him describing details of the shooting and similar testimony by Tune about defendant’s description of the killing. He argues it is inadmissible hearsay. The Attorney General responds that defendant failed to preserve the objections for purposes of appeal. We agree and reject defendant’s claims.
The prosecution advised the court it intended to introduce Gray’s testimony that Tovar had told him that when he took his first shot at Espeleta, the gun misfired; he had to clear it and shoot again. The prosecution also intended to introduce Tune’s testimony about defendant’s description of the shooting. It argued the statements fell within the Evidence Code section 1223 coconspirator exception to the hearsay rule. Defendant objected and when the court indicated the statements were made during the conspiracy, he asked for a hearing under Evidence Code section 402 to determine when the statements were actually made. The prosecution stated that Tune had already testified in other trials. Defense counsel agreed to review the transcripts, stating he might “withdraw the request later, but . . . would like to preserve that to protect the interests at this point.”
The court noted it had not yet ruled, asked counsel to meet and confer, and suggested defendant’s lawyer could informally talk to the witness if she was made available. “If that still doesn’t work, you need to put that person up on a 402 basis, and then that’s fine, we will do it, okay?”
The issue was discussed the next day, with defendant arguing Gray’s testimony lacked foundation. The court deferred ruling, stating that “if there [was] going to be an objection” (italics added), it would conduct a sidebar conference when the testimony was to be elicited.
When Tune was about to testify, the prosecution reminded the court there had not yet been a ruling on admissibility and defense counsel reiterated his hearsay objections. The court asked the prosecution to advise when he was going to lay the foundation “so that we can hear further on the objection . . . .” Defendant’s lawyer specifically agreed. The court made the same ruling as to Gray’s proposed testimony.
At the time of Tune’s and Gray’s testimony, defendant did not object. In addition, defendant’s lawyer cross-examined Tune on this matter.
“A verdict may not be set aside on the basis of the erroneous admission of evidence, even if prejudicial, unless the party asserting error has preserved the question by a timely and specific objection to the admission of the evidence, or by a motion to strike or exclude the evidence. (Evid. Code, § 353; [citations].)” (People v. Williams (1988) 44 Cal.3d 883, 906.) Generally objection must be made at the time the evidence is offered. (People v. Demetrulias, supra, 39 Cal.4 at p. 22.)
Although a motion in limine may sometimes preserve the objection (People v. Rowland (1992) 4 Cal.4th 238, 264, fn. 3), given that the court specifically asked for further objections at the time of the testimony, and defendant failed to make them, we must consider the objections waived. Thus, we need not discuss defendant’s substantive arguments.
6. Effect of Tovar’s Testimony on Tune
The prosecution sought to introduce evidence that Tovar told Tune he hoped the body decomposed quickly so it would not be found and upon hearing that, Tune threw up. When the prosecutor was about to raise it in opening statement, defendant objected, maintaining evidence of any statements from Tovar to Tune would not be “appropriate” and was hearsay. After hearing an offer of proof that the statement was not offered for its truth but for Tune’s state of mind, the court overruled the objection.
When Tune was questioned about this, defense counsel objected based on “hearsay and confrontation.” The prosecutor explained he was offering the statement not for its truth but to show its effect on Tune, i.e., she decided to “c[o]me forward and stop lying,” to “tell a co-worker, and the co-worker told the police.” The objection was overruled.
Tune testified that three days after Espeleta was killed, Tovar asked Tune if she thought the body would decompose quickly. That made her physically ill; she then told coworkers what she knew about the killing.
Defendant asserts the court erred in admitting the statements as nonhearsay because Tune’s state of mind about the killing was not relevant and the evidence was so prejudicial it is reasonably probably defendant would have achieved a more favorable result had the evidence not come in. (People v. Watson (1956) 46 Cal.2d 818, 836). Even assuming the evidence was not relevant, which we do not decide, defendant failed to show it was sufficiently prejudicial to warrant reversal.
Defendant’s claim of prejudice is made in only the most conclusory manner. He makes no explanation of why the result would have been more favorable without admission of the evidence. This is a waiver of the issue. (People v. Windham (2006) 145 Cal.App.4th 881, 893, fn. 8 [claim forfeited when not supported with reasoned legal argument].)
7. Anonymous Phone Call Testimony
Defendant complains the court erred by refusing to allow Tune to testify he had told her he wanted to anonymously call police to report Tovar had killed Espeleta. He asserts the statement shows he never had the intent to kill the victim, and its exclusion denied him due process under Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297] (Chambers). We disagree.
In an offer of proof defense counsel stated that during a news show about the murder, defendant called Tune and told her he was angry, shocked and upset that Tovar had killed the victim and “thought it was evil.” “[H]e didn’t think . . . Tovar deserved to live,” and “wanted to be an anonymous caller” to “‘rat him out.’” Counsel maintained the jury could infer from this testimony that defendant had not participated in planning the murder. He argued that even if the statement was inadmissible under evidentiary rules, defendant’s right to a fair trial took precedence under Chambers. The court barred the testimony on the grounds it did not qualify as a state of mind exception to the hearsay rule and was unreliable. (Evid. Code, §§ 1250, 1251, 1252.)
Due process requires that a criminal defendant have “‘a meaningful opportunity to present a complete defense’ [citations].” (Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142, 90 L.Ed.2d 636].) But this right is not absolute. Courts “have long observed that, ‘[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.’ [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 626-627, fn. omitted.) The United States Supreme Court has also recognized, “we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability—even if the defendant would prefer to see that evidence admitted. [Citation.]” (Crane v. Kentucky, supra, 476 U.S. at p. 690; accord People v. Yeoman (2003) 31 Cal.4th 93, 141-142.) These principles apply where the trial court excludes inadmissible hearsay because the defendant has failed to establish the foundational requirements for introducing it under a recognized exception to the general rule of exclusion. (People v. Morrison (2004) 34 Cal.4th 698, 724-725.)
Although Chambers did hold that exclusion of the testimony as hearsay violated due process, the holding was squarely limited to the facts of the case and specific hearsay rules applied. (Chambers, supra, 410 U.S. at pp. 302-303; see also (United States v. Scheffer (1998) 523 U.S. 303, 316 [118 S.Ct. 1261, 140 L.Ed.2d 413] [Chambers “confined . . . to the ‘facts and circumstances’ presented in that
case]; People v. Ayala (2000) 23 Cal.4th 225, 269 [“Chambers is closely tied to the facts and the Mississippi evidence law that it considered”].)
In addition, defendant here does not argue the court’s ruling was an incorrect interpretation of the rules of evidence; he concedes it. Further, his claim the court’s ruling was arbitrary because it prejudiced him is not persuasive.
Finally, defendant was not denied due process or the right to present a defense. He called his own witnesses, had the opportunity to and did examine the prosecution witnesses, and argued the case. Thus, his constitutional rights were preserved.
8. Sufficiency of the Evidence
Defendant claims there was insufficient evidence to support conviction on any of the counts. We disagree.
a. Introduction
When an insufficiency of the evidence claim is made, an appellate court “‘examine[s] the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt[]’” and “presume[s] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) This standard applies equally to a conviction based on circumstantial evidence. (Ibid.) A judgment will not be reversed for insufficiency of the evidence unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
b. Conspiracy and Aiding and Abetting
(1) Elements of Conspiracy
Defendant challenges his conviction for conspiracy to commit murder (count 3) and aiding and abetting first degree murder. A conspiracy occurs when two or more persons agree to commit any crime. (§ 182, subd. (1)(a).) “‘A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’ [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 120.)
“‘“‘Each [conspirator] is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences . . . .’”’ [Citations.] Thus, ‘[i]t is not necessary that a party to a conspiracy shall be present and personally participate with his co-conspirators in all or in any of the overt acts.’ [Citation.]” (People v. Morante (1999) 20 Cal.4th 403, 417.) “‘Disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy.’ [Citation.]” (People v. Jurado, supra, 38 Cal.4th at pp. 120-121.) “[T]he valid finding of a single overt act is sufficient to support the conspiracy verdict. [Citation.]” (Id. at p. 122.)
(2) Elements of Aiding and Abetting
“[A] person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) “[A]n aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator[,] and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates[] the commission of the crime.’ [Citation.]” (Ibid.)
(3) Sufficient Evidence
In support of his argument, defendant asserts there was no evidence of intent to conspire to murder or aid or abet the murder or evidence that he knew Tovar would kill the victim. The record shows otherwise.
Before the murder Tovar told Gray and defendant together that he was going to kill Espeleta. About a week before the killing, at Tovar’s request, Gray attempted to obtain a gun. At about the same time, Tovar drove Gray to a forest in northern California, where he explained he was looking for a place to dispose of the victim’s body.
Three days before the murder, defendant had the windows in Tune’s car tinted. According to Tune, the day before the murder, defendant insisted that she not let Tovar borrow her car the next day, claiming Tovar was going to do something stupid, hurt a pregnant woman. With Tune, defendant concocted a story about the car being impounded if Tovar wanted to borrow Tune’s car.
The day before the killing, defendant accompanied Tovar to rent a boat and trailer. They spent an extensive amount of time going over the equipment before renting it, asking detailed questions. Although Tovar asked most of the questions, defendant was present during the entire time. Tovar was concerned about the boat’s expired registration tags, and brake lights and a turn indicator that did not work. He insisted these items be remedied before he would rent the boat, despite the owner’s assurance that if the boat was stopped these problems would only generate a ticket that would be his responsibility. Defendant specifically asked about use of the boat at night. Tovar also requested they be provided a canvas boat cover. Although Tovar and defendant first said they were taking the boat to a lake in Perris, they later asked about using it in the ocean and were told the easiest access was via the Long Beach harbor. Defendant and Tovar then took the boat to Gray’s house.
The day before the killing, within three minutes after a call was made from Gray’s house to the Long Beach harbor, a call came from defendant’s residence to the Long Beach parks and recreation department.
The day of the killing, defendant went with Tovar to Home Depot where he bought Chem Dry and Tovar bought chain fasteners and a tarp. The boat owner testified the boat was spotless when it was returned.
Defendant bragged to Garrity he had participated in planning the killing, including getting the boat and buying chains and locks used to wrap the body before dumping it in the ocean. Police found one package of locks in Tune’s trunk and wrapping from another package in the boat.
This was more than sufficient to show defendant knew of Tovar’s plans, intended to conspire to commit the murder, and intended to help facilitate it. In addition, there were several overt acts in furtherance of the murder.
“[A] criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design. [Citation.]” (People v. Brown (1969) 272 Cal.App.2d 623, 628.) A conspiracy to commit murder of necessity is for first degree murder because the required agreement, intent, and overt act are the equivalent of premeditation and deliberation. (People v. Swain (1996) 12 Cal.4th 593, 606.) “Because there rarely is direct evidence of a defendant’s intent, ‘[s]uch intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions.’ [Citation.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.)
The same is true of aiding and abetting. “[O]rdinarily, ‘“from a person’s action with knowledge of the purpose of the perpetrator of a crime, his intent to aid the perpetrator can be inferred. In the absence of evidence to the contrary, the intent may be regarded as established.”’ [Citations.] . . . [D]efendant’s intentional acts, when combined with his knowledge that those acts would assist crimes by [Tovar], afforded sufficient evidence of the requisite specific intent.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198-1199.)
That there was contrary evidence or that different inferences could be drawn, such as defendant’s efforts to withhold Tune’s car from Tovar, is of no moment. “‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]” (People v. Guerra, supra, 37 Cal.4th at p. 1129.) The same is true for defendant’s claim the evidence supports a finding he was only an accessory after the fact.
c. Accomplice Testimony
We also reject defendant’s claim that Tune and Gray were accomplices and their testimony cannot be considered in determining the sufficiency of the evidence. ] “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . .” (§ 1111.) “‘To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged.’” (People v. Bunyard (1988) 45 Cal.3d 1189, 1206.)
The court did instruct on the basis Gray was an accomplice and did require that his testimony be corroborated. And it was.
Gray testified he called a friend to try to obtain a gun for Tovar. His phone records show a call made to that number. He also testified he called the harbor; phone records confirmed that as well.
Gray testified he paged defendant with the message, “187.” Tune corroborated that. Gray stated Tovar wrapped the body with a tarp, rusty 25-pound weights, and a chain before the three of them threw it in the ocean. Garrity testified defendant told him he and a friend bought a chain and locks at Home Depot and used them and weights to wrap the body before throwing it in the ocean.
Although Gray gave additional information about the planning and execution of the killing that was not directly corroborated, that does not defeat its admission. “‘“The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.” . . . “[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” . . .’ [Citation.]” (People v. Bunyard, supra, 45 Cal.3d at p.1206.)
As to Tune, the record does not support defendant’s assertion she is an accomplice. There is no evidence she knew about the planning of the murder. She did not know why Tovar wanted to borrow her car. She believed defendant paid for tinting the windows. In a conversation with defendant the night before the killing, when she brought up Tovar, defendant said he did not want to talk about him. When she found the tarp in her car, she did not know its purpose and threw it away.
Defendant’s statement to her that Tovar might do something stupid and hurt a pregnant girl does not make Tune an accomplice. Failure to prevent commission of a crime alone is not sufficient without evidence of knowledge of the perpetrator’s purpose and the intent to facilitate the crime. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91.) Further, providing defendant with an alibi might have made her an accessory after the fact, but as a matter of law “mere accessories are not accomplices under section 1111. [Citations.]” (People v. Daniels (1991) 52 Cal.3d 815, 867.) Thus, testimony of Tune and Gray is properly considered in evaluating sufficiency of the evidence.
d. First Degree Murder
Defendant asserts there was no evidence of premeditation and deliberation (§ 189), thereby defeating a conviction for first degree murder. He again relies on the testimony about his and Tune’s thwarting Tovar’s attempt to borrow Tune’s car, arguing this shows he was trying to prevent the murder. Without acknowledging the validity of this latter claim, we reject defendant’s argument.
To support a first degree murder conviction, where conspiracy and aiding and abetting are proven, the prosecution need not show defendant’s premeditation and deliberation; it must only prove the perpetrator had such mental state. (People v. Sanchez (1995) 12 Cal.4th 1, 33.)
Defendant affirmatively states Tovar had the requisite premeditation and deliberation, claiming, “Obviously, the murder was planned by Tovar.” He only disputes he knew of Tovar’s plans. However, as discussed above, the evidence supports conspiracy and aiding and abetting on defendant’s part. Thus, the conviction stands.
e. Second Degree Murder
Likewise, we reject defendant’s challenge to the conviction of second degree murder for the murder of Espeleta’s unborn child. When a defendant is convicted of conspiracy, he is liable not only for the substantive crime but also “‘“for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as part of the original design or common plan . . . .”’ [Citations.]” (People v. Prettyman, supra, 14 Cal.4th at p. 260-261, italics omitted.) When a second degree murder conviction is based on an aiding and abetting theory, in addition to evidence of those elements, there must also be evidence that the perpetrator committed a crime other than the target crime and that other offense was “‘a natural and probable consequence of the target crime that the defendant aided and abetted.’ [Citation.] The issue ‘is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.’ [Citation.]” (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)
Here Tovar and defendant knew Espeleta was pregnant and Tovar had revealed he wanted to kill her because he did not want to pay child support. A reasonable person would understand that if Espeleta was killed, her unborn child would be as well. This, together with the evidence of conspiracy and aiding and abetting on defendant’s part, is sufficient to uphold the second degree murder conviction.
f. Miscellaneous Other Challenges
Because we uphold the conviction on other grounds, we need not address defendant’s alternate claim there was insufficient evidence to sustain the conviction for first degree murder as a natural and probable consequence of assault by means likely to commit great bodily injury. In addition, purportedly lengthy deliberations and that the jury asked questions and requested testimony be read back do not affect the sufficiency of the evidence.
9. Jury Instructions
Defendant argues the court erred by failing to instruct on the basis Tune was an accomplice. He also maintains the evidence did not support an instruction that assault with a firearm could serve as a target crime.
a. Accomplice Instructions
Defendant claims that because Tune was an accomplice, the court should have instructed that her testimony needed to be corroborated and should have sua sponte given CALCRIM No. 334. That instruction provides that before her testimony could be used against defendant, the jury had to determine if she was an accomplice. If the jury so decided, it could not consider her testimony unless it was corroborated, and any incriminating testimony by Tune should be viewed with suspicion. He also asserts the court erred by failing to give CALCRIM No. 301 as to Tune. The instruction as given stated in part: “Except for the testimony of Nicholas Gray, which requires supporting evidence, the testimony of only one witness can prove any fact.” As shown above, the evidence does not support that Tune was an accomplice so there was no error.
b. Assault With a Firearm Instructions
Defendant argues the court erred in instructing the jury it could convict him for murder on the basis it was the natural and probable consequence of assault likely to cause great bodily injury. (CALCRIM Nos. 402, 403, 875.) We need not decide this issue because the jury was also instructed on conspiracy and aiding and abetting first degree murder, and second degree murder arising as the natural and probable consequences of the shooting. The evidence supported convictions on those bases. Thus, if it was error to give the assault instruction, it was harmless.
10. Prosecutorial Misconduct
During closing argument, the prosecutor discussed defendant’s theory that he did not know Espeleta was going to be killed, stating, “[L]et’s just indulge ourselves in some fantasy here. [¶] [Defendant] is scared. He is shocked. He had no idea this was going to happen. Even though he made all those inquiries and helped out . . . Tovar. Let’s just accept the unacceptable for a minute and say he didn’t think a murder was going to take place. [¶] . . . [R]emember[] when he said to . . . hide the car from [Tovar]. What did he tell . . . Tune that morning? He said, ‘[Tovar] is going to do something stupid today. He is going to hurt that pregnant girl. [¶] We know that . . . Tovar had been trying to get a gun. . . . [¶] So let’s say just to indulge in this fantasy a little longer --”
At a sidebar defense counsel asserted this was improper argument, stating, “I think when we start talking about fantasies and absurdities, that’s the same as saying shams. And I don’t believe it is proper argument for [the prosecutor] to infer [sic] that when the defenses takes a particular position it is a fantasy.” The prosecutor responded that he was speaking of defendant’s state of mind and had the right to suggest the defense theory was “ludicrous and fantasy.” He acknowledged he could not claim defendant’s lawyer was lying.
In response to the court’s question, defendant’s lawyer stated he was not concerned the prosecutor was arguing he had made up the defense, but just that it was not appropriate to “refer to the defense as a fantasy.” After the prosecutor reiterated his position that he could characterize the defense as “untrue and absurd,” defendant’s lawyer stated, “Well, I made my objection.” The court overruled it.
When argument resumed, the prosecutor told the jury he was “not suggesting . . . the defense lawyers would be intentionally trying to lie or fabricate evidence or do anything improper. The defense lawyers in this case are nothing but ethical, good people . . . .” What he was discussing was “how ridiculous it would be to believe” that defendant was not “part and parcel of this conspiracy to commit murder and this aiding and abetting to commit murder from the get-go.”
We agree with the Attorney General that this argument was not out of bounds. Contrary to his argument here, during trial, defendant specifically did not claim the prosecutor was attacking the integrity of his lawyer.
“‘“It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . .” “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness”’ [citation], and he may ‘use appropriate epithets . . . .’”’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153. 221.) Comments comparable to characterizing a defense theory as “fantasy” have been held proper. (E.g., People v. Kennedy (2005) 36 Cal.4th 595, 626-627 [proper for prosecutor to argue the defendant’s lawyer was “‘blowin’ smoke and roiling up the waters to try to confuse you’”]; People v. Frye (1998) 18 Cal.4th 894, 978 [prosecutor calling defense theory “‘ludicrous’ and ‘a smoke screen’” proper and not attack on defense counsel].)
Additionally, the jury was instructed with CALCRIM No. 222: “Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” We presume jurors followed the instructions (People v. Leonard (2007) 40 Cal.4th 1370, 1413) and did not consider the argument as anything more than that.
11. Sentencing
Defendant maintains his consecutive sentences on the first and second degree murder counts violated his constitutional rights to a jury trial and due process and cannot be reconciled with the holding in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. Since the briefs were filed, our Supreme Court has decided People v. Black (2007) 41 Cal.4th 799, which held that consecutive sentencing does not violate a defendant’s Sixth Amendment right to a jury trial. (Id. at p. 821-823.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., O’LEARY, J.