Opinion
NOT TO BE PUBLISHED
APPEAL from the judgments of the Superior Court of Los Angeles County No. NA075199, Tomson T. Ong, Judge.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant Joshua Manual Rosales.
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Arturo Gutierrez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendants Arturo Gutierrez and Joshua Manuel Rosales guilty of the murder of David Rocha in violation of Penal Code section 187, subdivision (a), finding Gutierrez’s crime was in the first degree and Rosales’s was in the second degree. It was additionally found that Gutierrez killed Rocha by personally and intentionally discharging a handgun (§ 12022.53, subds. (c)(d)). As to Rosales, the jury found a principal was armed (§ 12022, subd. (a)(1)) and personally and intentionally used a firearm (§ 12022.53, subds. (b), (c) & (e)). Defendants were found to have committed the murder to benefit a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Gutierrez admitted having suffered a prior conviction for purposes of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), section 667, subdivision (a), and section 667.5, subdivision (b). He was sentenced to 25 years to life for the first degree murder, doubled under the three strikes law, plus 25 years to life for the firearm enhancement and five years for the section 667, subdivision (a) enhancement. Rosales was sentenced to 15 years to life for the murder and 25 years to life for the weapon enhancement. Imposition of sentence on the gang enhancement was stayed pursuant to section 654 as to both defendants.
In his timely appeal, Rosales contends: (1) there was constitutionally insufficient evidence to support his murder conviction as an aider and abettor, as well as the criminal street gang finding; (2) the trial court committed instructional error by (a) using a version of CALJIC No. 3.00 that defined a principal to an offense with the phrase “equally guilty, ” (b) instructing the jury on termination of liability of an aider and abettor pursuant to CALJIC No. 3.03, and (c) by providing the jury with an erroneous response to an inquiry as to the meaning of “principal”; (3) the trial court violated his constitutional right to due process and a fair trial under the Aranda/Bruton line of cases (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123), along with his constitutional right to confront adverse witnesses by admitting excerpts of two jailhouse telephone conversations between Gutierrez and Gutierrez’s girlfriend; and (4) the trial court violated his constitutional rights to due process, a fair trial, and effective assistance of counsel by limiting the scope of his counsel’s closing argument.
Gutierrez timely appealed and contends: (1) the trial court violated his state and federal right to confront adverse witnesses, to present a complete defense, and to due process of law by limiting cross-examination of prosecution witnesses to adduce evidence in support of a third party culpability defense; (2) the prosecutor committed misconduct in her argument amounting to a violation of his constitutional rights to due process and an impartial jury under the Sixth Amendment, which resulted in an unreliable sentence under the Eighth Amendment; (3) at sentencing, the trial court improperly imposed a $30 criminal conviction assessment under Government Code section 70373, subdivision (a); and (4) the amount of the assessment and surcharge under section 1464 and Government Code section 76000 was excessive and unauthorized.
Rosales joined in Gutierrez’s claims.
Finally, defendants request we independently review the materials considered by the trial court and placed under seal in connection with its ruling on Rosales’s motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We order correction of the judgment to address minor sentencing issues, but otherwise affirm.
STATEMENT OF FACTS
The fatal shooting of Rocha took place on the evening of December 12, 2006, in territory claimed by the Westside Wilmas street gang, near the intersection of Lagoon Avenue and Anaheim Street in Wilmington, close to a 99 Cent Only Store. Irma Lopez lived with her husband and five of her six children on Wilmington Boulevard, approximately five blocks from the shooting scene. At that time, her son Jose was nine years old. Her eldest daughter, also named Irma, was 18 years old. Irma admitted being a Wilmas gang member. Mrs. Lopez testified the gang would use drugs at her home, but drugs were not sold there. Mrs. Lopez had been arrested for a drug possession offense in 2006.
To avoid confusion, we refer to the daughter as Irma and the mother as Mrs. Lopez.
The Lopez residence was a “safe haven” for Westside Wilmas members, who regularly used it “to hide or to prevent being detained by the police.” Mrs. Lopez’s son Alfonso was a member of the Wilmas, as were Gutierrez and Rosales, whose monikers were “Saigon” and “Page.” Rosales’s brother Sergio was a Wilmas member called, “Smurf.” Alicia “Bad Girl” Hurtado was a member of the Wilmas, who was also known as “Paris.”
According to Jose Lopez, Rocha visited his home on the day of the shooting and tried to get inside by lying to Jose about being a friend of Jose’s father. Rocha’s behavior in front of Jose and Mrs. Lopez was frightening. She made Rocha leave and closed all the doors.
At trial, Jose denied seeing Rocha visit his home and witnessing the shooting. He testified that he could not remember telling the investigating officers about the incident and making identifications—including that of the shooter—from photographic lineups. However, the prosecution introduced Jose’s recorded interview with Detective David Cortez on December 19, 2006, in which Jose described the incident in detail and made the identifications.
Sandra Rodriguez visited the Lopez residence on a weekly basis to help Mrs. Lopez take care of her children. Rodriguez testified that Mrs. Lopez sold drugs out of her home. At approximately 9:00 p.m. on the night of the shooting, Rodriguez and Gutierrez, whom she knew as “Saigon, ” were visiting the home of Pauline Guzman and her son Carlos. Carlos had recently been shot and was confined to a wheelchair. Rodriguez telephoned Mrs. Lopez for a ride home. Mrs. Lopez said she could not pick up Rodriguez because someone had tried to rob or assault her and she was going to the 99 Cent Only Store. Rodriguez relayed that information to Carlos, who told Gutierrez. The latter responded by getting on his bicycle and leaving.
Mrs. Lopez told Rodriguez not to testify.
Rodriguez got a ride from Pauline some five minutes later. Pauline drove a white van. They drove six blocks to the 99 Cent Only Store. Mrs. Lopez was there with Jose in her brown van, but drove away soon afterwards. Gutierrez was on the sidewalk nearby, holding a gun, and standing next to Rosales and Rocha. Rodriguez saw Gutierrez’s bicycle on the ground a short distance away from where they were standing with Rocha. Gutierrez told Pauline, “Go get [Mrs. Lopez] to see if we have the guy.” Rodriguez and Pauline drove past them to the Lopez residence. On the way, Paris got into Pauline’s white van. When they arrived at the Lopez home, Mrs. Lopez and Jose were already there. Mrs. Lopez would not come back with them, so Pauline took Jose into the van.
A videotape from the surveillance camera at the 99 Cent Only Store showed Rosales entering the store on the night of the shooting at 8:50 and 8:58 p.m.
When they drove back to the scene, Pauline asked Jose if defendants had the correct person. Jose said it was. Gutierrez struck Rocha with his gun and then shot him. Rosales was approximately 12 feet away from Gutierrez at the time of the shooting. Rodriguez identified defendants from photographic lineups on January 2, 2007. Jose also identified defendants from photographic lineups.. The shooter was “Saigon, ” and the person with him was “Page.” He recalled that the victim wore a checkered shirt, consistent with the one Rocha wore.
When interviewed by the police, Jose recalled being in the white van at the time of the shooting. Pauline told Jose to look at a man standing by the 99 Cent Only Store and tell her whether he was the one who had previously come by the Lopez house and frightened Jose’s mother. Rosales was there too. He had ridden his bicycle over to the 99 Cent Only Store in order to help Mrs. Lopez. Jose was afraid. He knew something bad would happen to the person he identified because he had seen a gun, but Jose “thought they were just gonna hit him.” Jose saw defendants work together to identify, restrain, beat, and shoot Rocha. It was “Saigon” who finally hit Rocha with the gun and shot him.
Eighteen-year-old Edward Morales provided another perspective on the shooting. He was doing homework in his apartment on Lagoon Avenue in Wilmington at 9:00 p.m., when he heard a loud female voice and looked outside. A white van drove down Lagoon and stopped next to three male Hispanics, who were standing on the sidewalk within an arm’s length of each other. There was some conversation between the males and someone in the van. Morales returned to his studies, but looked outside five minutes later to see who was talking. The same three males were on the sidewalk. Two were standing together—one had a light skin tone and the other, who had a bicycle, had a darker complexion. Morales never saw the males’ faces and could not identify them; however, from other witnesses, it was established that the male with the lighter skin was Gutierrez and the one with the bicycle was Rosales.
Defendants were talking to Rocha, as other witnesses would establish, who looked frightened. All three were standing close to each other. Rosales was blocking Rocha’s path to prevent him from getting away. Morales could not hear what they were saying, but he saw defendants search Rocha’s pants pockets. It appeared they were asking whether Rocha had stolen something. Rocha shook his head and gestured with his open arms as if to say, “I don’t know.” Defendants worked together to block Rocha and prevent him from walking away.
While Morales was watching, the white van returned and stopped close to the same place. The same female he had heard before said, “That’s him.” Somebody else yelled, “That’s him” or “That’s the guy.” Gutierrez pulled out a handgun and shot Rocha in the stomach. Rocha fell and Gutierrez shot him while he was on the ground. At no time had Rocha acted aggressively. Rosales and the van were at the scene when the shots were fired. The van drove off. One defendant rode away on the bicycle and the other ran away—both in the same direction as the van.
Officer Daniel Galindo of the Los Angeles Police Department responded to the shooting scene at approximately 9:20 p.m. Rocha was laying face-down on the sidewalk, his feet hanging off the curb. When emergency personnel examined Rocha, the officer saw a gunshot wound to the victim’s back. There was a brown wallet underneath Rocha’s body. The 24-year-old Rocha had received two bullet wounds. The fatal one had entered his back and exited his chest; the other grazed his abdominal region.
Officer Ernie Jones arrived some 25 minutes later. Close to the location where Rocha’s body had been found, Officer Jones observed a plaid jacket, brown T-shirt, and two 9-millimeter spent bullet casings, along with the brown wallet and a jar of hair gel. The jacket had a blood stain and a hole in it.
On December 14, 2006, Officer Jones and other officers went to the Wilmington Avenue apartment where Pauline Guzman lived with her two sons. A nine-millimeter handgun was found in the backyard behind the apartment building. It had been placed in a brown paper bag, underneath a gym bag on top of an old entertainment center. Forensic examination showed the casings found at the shooting scene had been fired from that handgun. A picture frame and a black knit hat both had bore the initials, “WSW, ” which was indicative of the Westside Wilmas. The officers also recovered a newspaper article reporting an incident on Lagoon related to the underlying killing.
The following day, Officer Jones went to the motel room where Gutierrez was living. Inside, he found a photograph of Gutierrez making a gang sign with “Bad Girl” Paris and a paper with the names Gutierrez and “Bad Girl” on it.
Officer Mark Maldonado testified as a gang expert. He was familiar with the Westside Wilmas, having investigated them personally. The Rocha shooting incident occurred within the gang’s territory. The Wilmas had approximately 550 members at that time and its primary color was blue. Its primary activities included committing homicide, assault with a deadly weapon, robbery, and narcotics sales and use. Two Wilmas members had committed predicate felonies for purposes of the gang enhancement.
In gang culture, a member’s status depends on respect, which is earned by committing criminal acts to benefit the gang, especially acts of violence. Such crimes are usually committed by multiple gang members—typically, a “backup” and a witness to validate commission of the act. A member will typically choose another gang member for that purpose because he or she will want to use someone trustworthy. Weapons used for gang crimes are often shared and stored at “stash houses, ” where they are not subject to probation searches. A person who informs authorities about a gang member’s criminal acts will be labeled a “snitch” and made subject to violent retribution. It is very common for witnesses to refuse to testify against gang members. Even if the gang member is in police custody, he or she can arrange for others on the outside to retaliate against the snitch.
Considering a hypothetical set of facts reflective of the prosecution case, Officer Maldonado opined the shooting of a victim who had attempted to rob a woman at a Westside Wilmas safe house a short time before would have been committed for the benefit of the Wilmas gang because the shooter was a gang member, as was the person who assisted him in locating, searching, and detaining the victim for identification. The two were acting in concert, with the non-shooter functioning as a lookout and assistant. The identification was instigated and facilitated by the woman’s telephone call and the involvement of other gang members and their family members. Word of the shooting would spread in the neighborhood and strengthen the Wilmas’s reputation for violence, which would intimidate community members and make it easier for the Wilmas to commit crimes.
DISCUSSION
Rosales’s Claims
A. Sufficiency of Evidence
Rosales contends that neither his murder conviction nor the special finding that the crime was committed to benefit a criminal street gang was supported by constitutionally sufficient evidence. Those contentions fail, however, because there was solid and credible evidence that Rosales knowingly assisted Gutierrez in committing the Rocha murder and did so in association with other Westside Wilmas in order to protect an important gang associate—Mrs. Lopez, who owned the residence the gang used as a safe house.
Applying the standard for federal constitutional error, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) We therefore review the record “in the light most favorable to the judgment below to determine whether it discloses substantial evidence” supporting each element of the crime. (People v. Johnson (1980) 26 Cal.3d 557, 562.) “[S]ubstantial evidence” is “evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578; People v. Abilez (2007) 41 Cal.4th 472, 504.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Majors (2004) 33 Cal.4th 321, 331 [the reviewing court does not resolve evidentiary conflicts, but views the evidence in a light most favorable to the People, and presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence].) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The substantial evidence standard applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
The prosecution proceeded against Rosales solely under an aiding and abetting theory, arguing that Gutierrez was the shooter. As the jury was instructed, “‘an 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.”’ [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 136; CALJIC No. 3.01.) The jury was also instructed that “[m]ere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting” and “[m]ere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.” (CALJIC No. 3.01.) Finally, the trial court instructed, pursuant to CALJIC No. 3.03, that an aider and abettor “may withdraw” from participation in the underlying offense upon notifying the other principals of his intent to withdraw and doing “everything in his power to prevent its commission.”
Here, applying the mandated standard of review, the evidence showed that both Rosales and Gutierrez were Westside Wilmas members and the killing took place in the gang’s territory. The shooting was the culmination of events beginning with Rocha’s visit to the gang safe house owned by Mrs. Lopez, where drugs were used and sold. During that visit, after lying to Mrs. Lopez’s son Jose in an attempt to gain access, Rocha did something to upset her and her son—either attempting to rob or assault her. When Gutierrez was told about that incident, he immediately rode his bike to the 99 Cent Only Store in order to come to Mrs. Lopez’s assistance. Jose recalled that Rosales rode his bicycle over to the 99 Cent Only Store in order to help Mrs. Lopez.
Within approximately five minutes, Mrs. Lopez was observed at that location with Jose in her brown van. Gutierrez was on the sidewalk nearby, holding a gun, and standing next to Rosales and Rocha. Gutierrez told Pauline, “Go get [Mrs. Lopez] to see if we have the guy.” Morales saw Gutierrez and Rosales work together to block Rocha and prevent him from walking away. When the white van returned, Jose saw defendants work together to identify, restrain, beat, and shoot Rocha. In response to Pauline’s question, Jose confirmed that defendants had the correct person. Gutierrez struck Rocha with his gun and then shot him. Rosales was approximately 12 feet away from Gutierrez at the time of the shooting. Defendants fled in the same direction as the van. There was no evidence that Rosales attempted to prevent the shooting.
The jury was thus provided with strong evidence as to each of the three elements of aiding and abetting liability. Rosales’s knowledge of Gutierrez’s intent is shown by the fact that defendants rushed to the scene with the shared purpose of aiding Mrs. Lopez. From his close proximity to Gutierrez while they restrained Rocha, it was reasonable to infer Rosales saw the murder weapon in his comrade’s hand and heard his comrade order Pauline to get help in identifying Rocha as the person who had the prior confrontation with Mrs. Lopez. That shared knowledge and intent to commit, encourage, or facilitate the murder was supported by evidence that defendants engaged in concerted actions to search Rocha’s pockets and prevent him from escaping. Those actions provided solid and credible support for the reasonable inference that Rosales acted to aid, promote, encourage, and instigate the murder.
Contrary to Rosales’s assertion, the evidence that he was not standing next to the perpetrator at the moment of the shooting does not render a finding of aiding and abetting mere speculation. Not only was Rosales instrumental in facilitating the murder by his actions in the minutes leading up to the shooting, but he remained at the scene within approximately 12 feet of the shooter. From the fact that he did nothing to prevent the shooting, but fled with his comrade, it would have been reasonable to infer that Rosales stayed at the scene to serve as a lookout or to provide backup support. Indeed, his decision to move away just before the shooting is entirely consistent with foreknowledge of the shooting since doing so placed him outside the line of fire.
Rosales’s challenge to the gang finding is similarly unavailing. Section 186.22, subdivision (b)(1) provides for enhanced sentencing when a person “is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (See People v. Augborne, supra, 104 Cal.App.4th at p. 371.) He argues there was no substantial evidence that the killing was gang-related because the only thing that distinguished the shooting incident from a mere robbery attempt is defendants’ status as gang members. However, as our prior discussion has shown, there was near overwhelming evidence of a gang motive for Rocha’s death—the desire to retaliate against the person who had recently attacked or antagonized Mrs. Lopez, the owner of a Westside Wilmas’ safe haven.
In addition to the evidence previously summarized, which included evidence that defendants rode to the 99 Cent Only Store in order to assist Mrs. Lopez, the evidence of a gang motivation was further bolstered by the fact that Pauline (the person who drove the white van and helped identify Rocha) had strong gang associations. She lived with Mrs. Lopez’s son and it was at her home that Gutierrez learned about the prior incident with Rocha. Moreover, Pauline’s apartment contained items with the gang’s identifying initials and the murder weapon was found hidden outside her apartment. The prosecution’s gang expert testified that weapons used for gang crimes are often shared and stored at “stash houses.” Consistent with this shooting, gang crimes are usually committed by multiple gang members so that one can assist the other as a “backup” and serve as a witness to validate commission of the act. A member will typically choose another gang member for that purpose because he or she will want to use someone trustworthy.
Against this compelling evidence of a shooting motivated by the desire to retaliate against someone who had caused offense to a gang associate at a gang hangout, Rosales points out that there was no evidence that defendants uttered any gang threats or identifications in connection with the incident. Where substantial evidence supports the jury’s finding, and other circumstances support a contrary finding, the jury’s finding will not be reversed. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).)
B. Instructional Claims
Rosales makes three interrelated claims of instructional error, contending the trial court committed instructional error by (1) using a version of CALJIC No. 3.00 that defined a principal to an offense with the phrase “equally guilty”; (2) instructing the jury on termination of liability of an aider and abettor pursuant to CALJIC No. 3.03 without a specific allocation of the burden of proof; and (3) by providing the jury with an erroneous response to an inquiry as to the meaning of “principal.” He also contends the three alleged errors had a combined prejudicial impact that requires reversal. As we explain, these arguments fail singly and cumulatively.
1. CALJIC No. 3.00
First, Rosales argues that the version of CALJIC No. 3.00 used to define principals to a crime was prejudicially misleading because it referred to each principal as being “equally guilty, ” regardless of the extent or manner of participation in the crime. His argument is based on the rationale of People v. McCoy (2001) 25 Cal.4th 1111, 1120 (McCoy) and People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165 (Samaniego). In McCoy, our Supreme Court reaffirmed the general principle that liability as an aider and abettor “is premised on the combined acts of all the principals, but on the aider and abettor’s own mens rea.” (McCoy, supra, at p. 1120.) It followed that “for murder, a defendant cannot be held vicariously liable for the mens rea of an accomplice.” (People v. Concha (2009) 47 Cal.4th 653, 665.) Reasoning from McCoy’s holding that an aider and abettor can be guilty of a greater offense than the direct perpetrator, the Samaniego court concluded that “an aider and abettor’s guilt may also be less than the perpetrator’s, if the aider and abettor has a less culpable mental state.” (Samaniego, supra, at p. 1164.) Thus, it was found that CALCRIM No. 400, which contained the “equally guilty” language, was potentially misleading because that language misdescribed “the prosecution’s burden in proving the aider and abettor’s guilt of first degree murder by eliminating its need to prove the aider and abettor’s (1) intent, (2) willfulness, (3) premeditation and (4) deliberation, the mental states for murder.” (Id. at p. 1165.)
Initially, we agree with the Attorney General that Rosales forfeited this claim by failing to object below. The trial court accurately instructed the jurors that they “must decide separately whether each of the defendant’s is guilty or not guilty” (CALJIC No. 17.00), that each fact which is essential to establish a defendant’s guilt must be proved beyond a reasonable doubt (CALJIC No. 2.01), and that the People had the burden of proving guilt beyond a reasonable doubt (CALJIC No. 2.90). Moreover, as we previously pointed out, the instruction on aiding and abetting liability made it clear that guilt as an aider and abettor required that Rosales have knowledge of the perpetrator’s unlawful purpose and must act with the intent of committing, encouraging, or facilitating commission of the crime (CALJIC No. 3.01). Consistent with McCoy and Samaniego, those instructions required the jury to independently assess each defendant’s mental state. Thus, as in Samaniego, the pattern instruction was “generally an accurate statement of law, ” but could be deemed misleading only in exceptional cases where the jury could find the codefendants acted with differing mental states. (Samaniego, supra, at p. 1163.) Therefore, Rosales was “obligated to request modification or clarification and, having failed to have done so, forfeited this contention.” (Ibid.; see also People v. Hillhouse (2002) 27 Cal.4th 469, 503; People v. Hart (1999) 20 Cal.4th 546, 622.)
In any event, our alternative review under section 1259 for violation of Rosales’s substantial rights discloses no basis for reversal. (§ 1259 [“The appellate court may... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”]; see People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; People v. Stitely (2005) 35 Cal.4th 514, 556, fn. 20.) “An instruction that omits or misdescribes an element of a charged offense violates the right to jury trial guaranteed by our federal Constitution, and the effect of this violation is measured against the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24 [(Chapman)].” (People v. Williams (2001) 26 Cal.4th 779, 797.) “Under that test, an appellate court may find the error harmless only if, after conducting a thorough review of the record, the court determines beyond a reasonable doubt that the jury verdict would have been the same absent the error.” (Ibid., citing Neder v. United States (1999) 527 U.S. 1, 7-10.)
There was no affirmative evidence that Rosales acted with a different intent from that of his codefendant. At no time did counsel for the defense or prosecution urge or imply that the “equally guilty” language could be used to impute one defendant’s mental state to the other. When the prosecutor mentioned the “equally guilty” language in argument, she did so in the context of aiding and abetting liability and emphasized that the aider and abettor must assist the other perpetrator with a shared intent. In her argument regarding first degree murder, the prosecutor did not refer to the “equally guilty” language implicitly or explicitly. Rather, she argued that the facts supported the inference that Rosales’s own mental state showed that he aided and abetted Gutierrez with a shared intent: “So Mr. Rosales clearly knew that Mr. Gutierrez intended to shoot Mr. Rocha.” The “equally guilty” language was never asserted with regard to the special weapons or gang findings.
Most significantly, however, the contention that the jury might have improperly relied on the “equally guilty” language to impute the perpetrator’s mental state to the aider and abettor is rendered frivolous by jury’s verdicts—the jury found Gutierrez guilty of first degree murder, but found Rosales guilty of second degree murder. Thus, in reviewing the record as a whole, we find no possibility the jury improperly relied on CALJIC No. 3.00 to impute a finding of the perpetrator’s mental state to that of the aider and abettor.
2. CALJIC No. 3.03
Upon the prosecution’s request and without defense objection, the trial court instructed, pursuant to CALJIC No. 3.03 that an aider and abettor “may withdraw” from participation in the underlying offense—and thereby “avoid responsibility” for its commission—upon notifying the other principals of his intent to withdraw and doing “everything in his power to prevent its commission.” However, the trial court omitted the paragraph in the pattern instruction to the effect that the prosecution bore the “burden of proving defendant was a principal in and had not effectively withdrawn from” participation in the crime, and that the jury must find defendant not guilty if it had “a reasonable doubt that he was a principal in and participated as an aider and abettor.” (CALJIC No. 3.03.) That omission, according to Rosales, was prejudicial because it inferred the prosecution had introduced evidence tending to prove his guilt and suggested to the jury that he had the burden of proving effective withdrawal from the crime’s commission.
There is no indication in the record that either defendant objected to the giving of CALJIC No. 3.03 or argued it was incomplete and misleading for failure to allocate the burden of proof. “[T]he failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249; see also People v. Campos (2007) 156 Cal.App.4th 1228, 1236 (Campos) [“‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’”].)
Our review under section 1259 for violation of Rosales’s substantial rights discloses no basis for reversal. “In determining the correctness of jury instructions, we consider the instructions as a whole. [Citation.] An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]” (Campos, supra, 156 Cal.App.4th at p. 1237.)
Here, despite the lack of a specific explanation within the pattern instruction “that if the jury has a reasonable doubt whether or not the defendant effectively withdrew, they should acquit” (People v. Fiu (2008) 165 Cal.App.4th 360, 386 (Fiu)), the jury was instructed that the prosecution generally bore the burden of proving guilt beyond a reasonable doubt and it was never suggested that the burden shifted in regard to the question of withdrawal. Additionally, the instruction on aider and abettor liability clearly placed the burden of proof on the prosecution and cautioned that neither mere presence at the scene nor mere knowledge that a crime is being committed and the failure to prevent it, could amount to aiding and abetting. (CALJIC No. 3.01.) In light of those instructions and in the absence of any argument suggesting otherwise, there is no reason to think the jury took it upon themselves to read CALJIC No. 3.03 as establishing a presumption of guilt requiring affirmative proof of withdrawal by the defense. (See Estelle v. McGuire (1991) 502 U.S. 62, 72 (Estelle) [“in reviewing an ambiguous instruction..., we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution”].)
In any event, as in Fiu, supra, 165 Cal.App.4th at page 386, any error was harmless beyond a reasonable doubt because the evidence of effective withdrawal was nonexistent. “No reasonable jury would have found defendant’s actions to suffice for withdrawal and the error in failing to instruct on the burden of proof was harmless beyond a reasonable doubt.” (Id. at p. 387.)
3. Response to Jury Inquiry
During deliberations, the jury submitted a question to the trial court concerning the meaning of “principal” in the context of the section 12022, subdivision (a)(1), firearm allegation as to Rosales. The jury further indicated a lack of understanding as to the meaning of the verdict form’s “wording” as to a finding about the arming with the nine-millimeter handgun—“said arming not being an element of the above offense.” The trial court instructed the jury to “read instruction [CALJIC Nos.] 3.00 and 3.01 for [the] answer.” The jury did not seek further clarification or make additional inquiries. Rosales argues the trial court’s response was inadequate and prejudicial. We disagree.
As we explained ante, the pattern instructions referenced by the trial court accurately defined what it means to be a principal to a crime and the nature of aiding and abetting liability under California law. Rosales does not contend those definitions fail to apply, or apply differently, with regard to principal armed allegations under section 12022, subdivision (a)(1). Rather, he asserts the “equally guilty” language in CALJIC No. 3.00 somehow confused the jurors and lowered the prosecution’s burden of proof as to the firearm allegations. We cannot see how it might have done so. The firearm allegations at issue were all premised on a principal to the offense being armed, and the evidence was overwhelming that Gutierrez was the shooter. Neither pattern instruction, read alone or together, posed any logical danger of obfuscating the meaning of a principal for purposes of the firearm allegation. Nor can Rosales explain how the court’s response could have caused confusion as to the phrase identified in the jury’s question concerning “arming not being an element of the above offense.”
As the Attorney General points out, “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Here, the original instructions were full and complete, the trial court’s reference to CALJIC Nos. 3.00 and 3.01 was well within the bounds of reasonableness, and nothing in the record supports a reasonable inference of juror confusion resulting from the trial court’s response. As such, any supposed error would have been harmless under any recognized legal standard, including the one urged by Rosales—whether there is a reasonable likelihood the jury misunderstood and misapplied the instructions. (See Estelle, supra, 502 U.S. at p. 72.)
As we have determined none of the claims of instructional error was viable, defendant’s claim of cumulative prejudice must fail. (People v. Box (2000) 23 Cal.4th 1153, 1219, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 11.)
C. Admission of Gutierrez’s Recorded Jailhouse Conversations
Rosales contends the trial court violated his constitutional right to due process and a fair trial, along with his constitutional right to confront adverse witnesses under the Aranda/Bruton line of cases, by admitting portions of two recorded telephone jailhouse conversations between Gutierrez and his girlfriend Priscilla. The Aranda/Bruton claim fails because neither conversation contained a statement that incriminated Rosales. To the extent his challenge the admission of those conversations purports to be grounded on other constitutional provisions, we summarily reject it because he fails to provide adequate argument or supporting legal authority. (Stanley, supra, 10 Cal.4th at p. 793; Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.)
When Rosales became aware of the prosecution’s intent to introduce the audio recordings, he objected on the ground that Gutierrez mentioned that his codefendant had received a plea offer. Counsel for Rosales requested those references be deleted or, alternatively, that the parties stipulate that no such offer had been made. The prosecution agreed with the proposed stipulation. After the recordings were played, the jury received the stipulation that Rosales was never offered a plea bargain for 15 years. At that time and at the close of evidence, the trial court instructed the jury that the tape recording was to be considered only as to Gutierrez. It was not to be used “for any purposes when deciding the Rosales case.”
In making his objection, defense counsel misspoke and referred to a five-year offer. In fact, the offer mentioned was 15 years.
In Bruton, supra, 391 U.S. 123, the United States Supreme Court held that a confrontation clause violation under the Sixth Amendment occurs when the trial court admits a nontestifying codefendant’s confession that names and incriminates the defendant at their joint trial, even where the jury is instructed to consider the confession only against the codefendant. (Id. at pp. 124-126, 135-136.) The Supreme Court reasoned that, even when so instructed, jurors cannot be expected to ignore the statements of one defendant that are “powerfully incriminating” as to another defendant. (Id. at pp. 135-136.) The Bruton holding was qualified by Richardson v. Marsh (1987) 481 U.S. 200, which held that Bruton “extends only to confessions that are not only ‘powerfully incriminating’ but also ‘facially incriminating’ of the nondeclarant defendant. [Citation.] The [Richardson] court held that a defendant’s rights under the confrontation clause are not violated by the admission in evidence of a codefendant’s confession that has been redacted ‘to eliminate not only the defendant’s name, but any reference to his or her existence, ’ even though the confession may incriminate the defendant when considered in conjunction with other evidence properly admitted against the defendant. [Citation.]” (People v. Fletcher (1996) 13 Cal.4th 451, 455-456.)
Here, while it is true that neither defendant testified at trial, Rosales fails to identify any statement in the recorded conversations that incriminates him to any significant degree. In the first conversation, there was no mention of or apparent inference to Rosales. In the second conversation, Gutierrez told his girlfriend, “they offered my, um, my, my co-deft right 15 years and he doesn’t even have to snitch.” Gutierrez complained to Priscilla about the lack of any such deal for him, and wondered “if this fool finna [sic] snitch on me. Crazy man. [inaudible] going to snitch on me.” Those statements are neither facially nor powerfully incriminating as to Rosales. In the balance of the conversation, Gutierrez voiced his complaints and concerns about the evidence to be offered by “the little boy.”
In the absence of any incriminating statement by codefendant, there can be no constitutional violation under the Aranda/Bruton line of cases. (See e.g., People v. Anderson (1987) 43 Cal.3d 1104, 1120 [“[T]he rule of Bruton[, supra, 391 U.S. 123]—which is rooted in the confrontation clause and accordingly governs state as well as federal prosecutions [citation]—declares that a non testifying codefendant’s extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant’s right of confrontation and cross-examination, even if a limiting instruction is given.”].)
In any event, the admission was not prejudicial. The United States Supreme Court has held that violations of the Sixth Amendment are subject to the Chapman, supra, 386 U.S. at page 24 harmless error test. “In Chapman, this Court rejected the argument that all federal constitutional errors, regardless of their nature or the circumstances of the case, require reversal of a judgment of conviction. The Court reasoned that in the context of a particular case, certain constitutional errors, no less than other errors, may have been ‘harmless’ in terms of their effect on the factfinding process at trial. Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.)
Such was the case here. The statements provided only the most tenuous basis for making an incriminating inference—the possibility that Rosales might “snitch” implied that he aided and abetted the murder. No one made that argument at trial; it was stipulated that there was no plea offer; and the jury was instructed twice that it could not consider the recorded statements for any purpose as to Rosales. Given those considerations, along with the strong eyewitness evidence that Rosales actively assisted the perpetrator in committing the Rocha murder, we are confident the lack of redaction under Bruton was been harmless beyond a reasonable doubt.
D. Limitation on Scope of Closing Argument
During the closing argument by Rosales’s counsel, the trial court ruled he was not entitled to refer to the recorded telephone conversations between Gutierrez and his girlfriend because those conversations were admitted only as to Gutierrez—with Rosales’s acquiescence. Rosales contends the court’s limitation on the scope of his closing argument violated his constitutional rights to present a closing defense argument and to effective assistance of counsel. As we explain, Rosales had no constitutional right to argue facts previously ruled inadmissible as to his client; that ruling did not prevent him from arguing his chosen defense; and, even if he had been permitted to refer to the recorded statements, there is no reason to think it would have affected the verdict.
The primary theme of Rosales’s argument was that he was not involved in the shooting. Trial counsel pointed out that Rosales did not match Morales’s description of the aider and abettor. Indeed, that eyewitness did not see Rosales at the scene. Counsel also pointed to contradictions and inconsistencies in the other witnesses’ testimony, and explained why Jose and Rodriguez were unreliable and biased.
In the course of arguing the absence of evidence explaining his client’s presence at the scene, defense counsel referred to the recorded telephone conversation between Gutierrez and Priscilla as supporting an inference that Rosales was not present. The trial court sustained the prosecutor’s objection. Nevertheless, when defense counsel resumed, he again directed the jury to “the evidence before you of what that conversation is” in which Gutierrez referred to his accomplice as a codefendant, rather than as his “homie” or “buddy.” The trial court had counsel for both parties confer outside the jury’s presence and explained to Rosales’s counsel why the prosecutor’s objection had been sustained: The recorded conversation was admissible only as to Gutierrez and the jury had been so instructed. By referencing that evidence in argument, defense counsel was violating the trial court’s order.
Rosales’s counsel responded that he wanted to rely on the conversation evidence because it included statements he deemed favorable to his client and he claimed an “absolute right to comment on that.” The trial court disagreed, finding nothing favorable in the conversations and pointing out that defense counsel had entered into a stipulation concerning the admission of the conversations that was premised on the statements being admissible solely as to Gutierrez—which was done to prevent the jury from drawing any negative inferences against Rosales. Gutierrez’s counsel and the prosecutor agreed that codefendant’s argument violated the stipulation.
Counsel for Gutierrez also moved for a mistrial, which the trial court denied.
After ruling against Rosales, the trial court returned to open court and admonished the jury that argument by counsel was not evidence and that the recorded conversations were not to be considered as to Rosales. The trial court also reminded the jury of its previous limiting instruction to that same effect.
Rosales’s claims of constitutional error are based primarily on Herring v. New York (1975) 422 U.S. 853, 859 (Herring), which held “a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.” The high court explained that “closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial” and “counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.” (Id. at p. 858.) Here, of course, there was no such denial. At worst, the trial court’s order merely prevented defense counsel from bolstering the argument already settled upon as to his client’s non-presence at the scene.
Moreover, as the high court cautioned, the Herring rationale was not intended to prevent trial courts from controlling the scope of closing arguments: “This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion.” (Herring, supra, 422 U.S. at p. 862; see also People v. Marshall (1996) 13 Cal.4th 799, 854 -855 [“A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact. [Citations.] This right is not unbounded, however; the trial court retains discretion to impose reasonable time limits and to ensure that argument does not stray unduly from the mark.”].)
It would be hard to imagine a more reasonable limitation on the scope of defense argument than the one before us. Rosales had previously entered into a stipulation that informed the jury the plea offer mentioned by Gutierrez did not take place and proscribed the jury from considering the statements against Rosales. The stipulation was entered and the jury was appropriately informed and admonished. All of this accrued to Rosales’s benefit. Nevertheless, during argument, defense counsel sought to use the inadmissible evidence for his client’s benefit, while relying on the order that prevented the same evidence from being used against him.
In short, “[t]he present case presents a new variation on a perennial theme: defendant would like to have his cake and eat it too.” (People v. Thompson (1986) 183 Cal.App.3d 437, 442.) Nothing in the Herring line of authority required the trial court to do that. Alternatively, review of this claim of trial error in the context of other evidence presented in order to determine whether the limitation was harmless beyond a reasonable doubt (see Arizona v. Fulminante (1991) 499 U.S. 279, 307-308) reveals no basis for reversal. Far from providing defense counsel with an important new avenue for defending his client, the trial court’s order merely prevented counsel from bolstering his primary defense with a dubious argument drawn from inadmissible evidence.
Gutierrez’s Claims
A. Limitation on Cross-Examination
Gutierrez contends the trial court violated his state and federal constitutional rights to confront adverse witnesses, to present a complete defense, and to due process of law when it ruled his counsel could not cross-examine prosecution witnesses to adduce evidence in support of a third party culpability defense. Although he attempts to frame this contention in terms of the trial court’s supposed general prohibition on cross-examination to adduce evidence to support such a defense, review of the record shows that each of the challenged rulings was based on trial court findings that the evidence sought was inadmissible hearsay or irrelevant. Gutierrez cannot prevail on his constitutional claims because he fails to establish error under state evidentiary law or any independent constitutional violation. Stated another way, Gutierrez utterly fails to show the challenged trial court rulings prevented him from adducing admissible evidence of third party culpability.
“As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]... [T]his principle applies perforce to evidence of third-party culpability....” (People v. Hall (1986) 41 Cal.3d 826, 834-835 (Hall).) In explaining why defendants do not have the constitutional right to the admission of unreliable hearsay statements, our Supreme Court pointed out: “‘Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ (Chambers v. Mississippi [(1973)] 410 U.S. 284, 302 [(Chambers)].)” (People v. Ayala (2000) 23 Cal.4th 225, 269 (Ayala).)
Evidentiary rulings, such as those here at issue, are reviewed for abuse of discretion. (E.g., People v. Robinson (2005) 37 Cal.4th 592, 625; People v. Prince (2007) 40 Cal.4th 1179, 1242.) “‘To be admissible, the third party evidence need not show “substantial proof of a probability” that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. As this court observed in [People v.] Mendez [(1924) 193 Cal. 39], evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ (People v. Hall, supra, 41 Cal.3d at p. 833.) ‘[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code, ] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code, ] § 352).’ (People v. Hall, supra, 41 Cal.3d at p. 834.)” (People v. Harris (2005) 37 Cal.4th 310, 340; People v. Geier (2007) 41 Cal.4th 555, 581.)
In support of his claim that the trial court’s evidentiary rulings prevented him from presenting a defense, Gutierrez refers to the following aspects of his trial. During the opening statement, counsel for Rosales said the evidence would show that Pauline Guzman stated that her son, Dominic Guzman, was the actual shooter. Counsel purported to quote a statement by Pauline concerning her presence at the scene. The court granted the prosecutor’s request to confer with counsel outside the jury’s presence, at which time the prosecutor informed counsel and the court that she did not intend to call either Pauline or Dominic as witnesses because of her understanding that they would legitimately invoke their Fifth Amendment right against self-incrimination. Accordingly, the prosecutor asked how the defense intended to admit evidence of Pauline’s statement. Counsel for Gutierrez stated that he intended to call Pauline and Dominic, and asserted the statement would be admissible under the hearsay exception for statements against penal interests. The court informed the parties that the prosecutor would have the opportunity to object to the potential third party culpability evidence, depending on whether the anticipated witnesses were called and invoked their constitutional rights. Trial counsel continued his opening statement without reference to Pauline and Dominic.
During cross-examination of Jose, counsel for Gutierrez asked about Pauline and her son Carlos. Jose said he did not know them. In response to a series of questions concerning whether Pauline tried to dissuade Jose from informing on her son Dominic, Jose testified that he did not remember, nor did he remember either one being present in connection with the shooting. When asked if Detective Cortez told Jose “that Pauline told him... the shooter was Dominic, ” the trial court sustained the prosecutor’s hearsay objection. Counsel asked no further questions.
In a conference outside the jury’s presence, the prosecutor argued it was inappropriate for defense counsel to question witnesses about statements by Pauline or Dominic unless he intended to call them as witnesses. Otherwise, the prosecutor argued, such questioning would involve “multiple layers of hearsay.” Counsel for Gutierrez represented that he had subpoenaed Pauline, but “she didn’t show up.” Counsel had therefore served her with another subpoena. The trial court told defense counsel that in the event he was able to call Pauline and she denied making the statements, the defense would be permitted to recall prosecution witnesses to testify about her making them.
Later, after the direct examination of Rodriguez, the prosecutor requested the trial court exclude references to hearsay statements by Pauline and Dominic during cross-examination. Rosales’s counsel said that he did not intend to examine along those lines; Gutierrez’s counsel stated that he had not “crossed that bridge yet.” The court responded that it would rule on any such objections, or conduct a hearing, if the issue arose.
In cross-examining Detective Jones, counsel for Rosales asked whether the police investigation determined that the handgun recovered from the Guzman’s backyard belonged to Carlos. The trial court sustained the prosecutor’s objection that it assumed facts not in evidence. It also sustained relevancy objections to questions concerning whether Pauline was considered a suspect in the case. Outside the jury’s presence, the court explained that the proper foundation for adducing such testimony would require hearsay statements.
During cross-examination of Detective Cortez, the prosecutor moved to exclude testimony as to any statements by Pauline or Dominic, whether there were murder suspects other than defendants, and whether Dominic had been arrested. The trial court found such questions would be subject to objection because they called for hearsay. It explained that evidence of third party culpability “can’t come through this witness” because, to the extent the witness would merely be relying on statements he heard, the testimony would be hearsay. The defense, however, was permitted to adduce evidence from the detective that Jose said that he knew Dominic, which was contrary to Jose’s trial testimony. When counsel asked whether Jose told the detective if he was unsure if Dominic or his client was the shooter, the detective responded that Jose said Dominic was not present.
In essence, the challenged rulings excluded: (1) testimony by Jose as to whether Detective Cortez said “that Pauline told him... the shooter was Dominic”; (2) testimony by Detective Jones concerning whether other law enforcement personnel determined that Carlos owned the murder weapon and whether Pauline was considered a suspect in the case; and (3) testimony by Detective Cortez as to statements by Pauline or Dominic, whether there were suspects other than defendants, and whether Dominic had been arrested. At no point below or on appeal does Gutierrez attempt to show those rulings were erroneous under California evidence law or present authority that they violated any specific provision of the federal and state Constitutions. Moreover, he makes no argument that those witnesses had personal knowledge of facts supporting a third party culpability defense or that any hearsay statement was admissible under a recognized hearsay exception or constitutional provision.
As stated above, a necessary prerequisite for his constitutional claims is a showing that admissible evidence of third party culpability was improperly excluded. (Hall, supra, 41 Cal.3d at pp. 834-835; Ayala, supra, 23 Cal.4th at p. 269; see also Chambers, supra, 410 U.S. at p. 302.) Having failed to make that showing, his claim fails. Nor does he cite any authority for the proposition that the trial court’s rulings directly violated his constitutional right to present evidence, much less his right to confront adverse witnesses. For example, Holmes v. South Carolina (2006) 547 U.S. 319 is wholly inapplicable. There, evidence that a third party had confessed to the charged crimes was excluded under a South Carolina evidence rule that prohibited a defendant from introducing proof of third party culpability if the prosecution introduced strong forensic evidence of the defendant’s guilt. (Id. at p. 321.) The United States Supreme Court found the rule violated the defendant’s right to present a complete defense. (Id. at p. 331.) Gutierrez does not attempt to argue the trial court’s reliance California’s hearsay and relevancy restrictions can be equated or even analogized to the South Carolina rule at issue in Holmes.
For similar reasons, any supposed error was harmless beyond a reasonable doubt. Gutierrez argues evidence that Dominic committed the murder would have likely affected the verdict, but he neither identifies an admissible source of such evidence nor explains how the challenged trial court rulings prevented its admission. Any possibility of error is therefore a matter of pure speculation.
B. Prosecutorial Misconduct
Gutierrez contends the prosecutor committed misconduct in her argument amounting to a violation of his constitutional rights to due process and to an impartial jury under the Sixth Amendment, which also rendered his sentence unreliable under the Eighth Amendment. As we explain, there was neither misconduct nor a reasonable likelihood of prejudice. The prosecutor’s statements permissibly argued that the defense failed to introduce material evidence or call logical witnesses.
Counsel for Gutierrez began his closing argument by introducing the theme that “the vast majority of the players” responsible for Rocha’s murder did not testify at trial. That was because Mrs. Lopez, along with Pauline, Dominic, and Carlos collaborated on producing a “script” for the benefit of Detective Cortez, which would lay out the blame as they chose. In rebuttal, the prosecutor stated that both defense counsel “are absolutely right that they have absolutely no burden, they don’t have to put on any evidence, but they can and they have the same subpoena power as the district attorney’s office. They have the same ability to call witnesses. They have the same ability to put on evidence. So when [counsel for Gutierrez] says that all the players were not present, [he] could have called anyone he felt that he needed to call.”
At the conclusion of arguments and outside the jury’s presence, counsel for Gutierrez moved for a mistrial on the ground the prosecutor’s rebuttal assertion about witness availability was deliberately false. The prosecutor responded that defense counsel represented during trial that he had subpoenaed Pauline and intended to call her. There was nothing false or misleading about her statement that the defense and the prosecution had the same subpoena power. The trial court agreed and denied the mistrial motion, noting that the jury instructions made it clear to the jurors the parties need not call all potential witnesses.
The governing law is well established. “A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ (People v. Morales (2001) 25 Cal.4th 34, 44; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ (United States v. Agurs (1976) 427 U.S. 97, 108.)... [¶] When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another point in People v. Hill [(1998)] 17 Cal.4th 800, 822-823; accord, People v. Clair (1992) 2 Cal.4th 629, 663.) Moreover, prosecutors ‘have wide latitude to discuss and draw inferences from the evidence at trial, ’ and whether ‘the inferences the prosecutor draws are reasonable is for the jury to decide.’ (People v. Dennis [(1998)] 17 Cal.4th 468, 522.)” (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)
Gutierrez’s central contention is that the prosecutor’s response was improper because she knew Dominic and Pauline were unavailable as defense witnesses. The record does not support that assertion. As the prosecutor pointed out, Gutierrez’s counsel stated at the trial’s outset that he had subpoenaed Pauline and intended to call her as a witness. Later during trial, defense counsel repeated that intention, despite his representation that Pauline had failed to appear. Contrary to Gutierrez’s assertions, we need not infer the prosecutor knew the witnesses would be unavailable to the defense from the fact that the prosecutor did not intend to call Pauline or Dominic, based on her belief that they would assert their constitutional right to remain silent. We therefore see nothing untoward, much less dishonest, in the prosecutor’s rebuttal statement.
“In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970.) Argument is “traditionally vigorous and therefore accorded wide latitude.” (People v. Fierro (1991) 1 Cal.4th 173, 212 (Fierro).) A prosecutor may comment upon the state of the evidence, including the failure of the defendant to introduce material evidence or call witnesses. (People v. Brown (2003) 31 Cal.4th 518, 554; People v. Mincey (1992) 2 Cal.4th 408, 446.) Read in context, the prosecutor was making the permissible argument that Gutierrez had failed to introduce material evidence or to call logical witnesses. (People v. Boyette (2002) 29 Cal.4th 381, 434; Fierro, supra, at p. 213.)
Finally, even if a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice. (See People v. Arias (1996) 13 Cal.4th 92, 161.) Here, the jury was instructed that argument by counsel was not evidence and neither party was required to call as witnesses “all persons who were present at any of the events” surrounding the crime. Those instructions would have remedied the improprieties Gutierrez alleges and he presents no reason for us to ignore “‘the almost invariable assumption of the law that jurors follow their instructions.’ [Citation.] ‘[We] presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’ [Citations.]” (United States v. Olano (1993) 507 U.S. 725, 740-741; People v. Romo (1975) 14 Cal.3d 189, 195; People v. Sisneros (2009) 174 Cal.App.4th 142, 152-153.)
C. Criminal Conviction Assessment
Gutierrez, joined by Rosales, contends the trial court improperly imposed a $30 criminal conviction assessment under Government Code section 70373, subdivision (a), arguing the assessment violated the proscriptions against ex post facto laws under the state and federal Constitutions, as well as our state’s rule of statutory construction in favor of prospective application. Both arguments have been repeatedly and consistently rejected by our courts, and we follow those well-reasoned authorities.
“Government Code section 70373, subdivision (a)(1) (hereafter Government Code, section 70373(a)(1)) provides, in part: ‘To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.... The assessment shall be imposed in the amount of thirty dollars ($30) for each... felony[.]’ This provision was added to the Government Code by Statutes 2008, chapter 311, section 6.5 [(2007-2008 Reg. Sess., Sen. Bill. No. 1407)]; thus, its effective date is January 1, 2009.” (People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111 (Knightbent).) The underlying offenses were committed on December 12, 2006. Gutierrez was sentenced on November 5, 2009. Rosales was sentenced on October 20, 2009.
“Because the [Government Code] section 70373(a)(1) assessment is nonpunitive, its application to defendants whose crimes were committed before the statute’s effective date does not violate the prohibition against ex post facto legislation.” (Knightbent, supra, 186 Cal.App.4th at p. 1112; see also People v. Castillo (2010) 182 Cal.App.4th 1410, 1413 (Castillo) [“the assessment is not punitive because it was adopted as one component of the effort to address a budget shortfall; it is not denominated a ‘fine’; the amount per conviction is small; and the amount is not dependent on the seriousness of the offense”]; People v. Phillips (2010) 186 Cal.App.4th 475, 478 (Phillips).) The statutory construction argument in favor of prospective application of the provision fails because “the date of conviction, not the date of the crime, controls application of the statute.” (Phillips, supra, at p. 477, citing Castillo, supra, at p. 1410.)
D. Imposition of Fees and Fines
Defendants also contend the imposition of an assessment and surcharge ($1,000 for Gutierrez and $800 for Rosales) under Government Code section 76000 and section 1464 was excessive and unauthorized.
Section 1464, subdivision (a)(1) provides: “Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and except as otherwise provided in this section, there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses....” Subdivision (a)(3)(A) exempts any restitution fine from the provision’s application. In similar fashion, Government Code section 76000, subdivision (a)(1) provides: “Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses....” Subdivision (a)(2) provides: “This additional penalty shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code.” Imposition of these fees and assessments is mandatory. (People v. Taylor (2004) 118 Cal.App.4th 454, 456 (Taylor).)
As the Attorney General concedes, the only “fine, penalty, or forfeiture” subject to those two penalty assessment provisions was the $30 court security fee under section 1465.8, which would require a $30 penalty under section 1464 and a $21 penalty under Government Code section 76000 as to both defendants. Because these sentencing discrepancies and remedies are clearly presented, we order the judgments to reflect the correct amounts of penalties. (See Taylor, supra, 118 Cal.App.4th at p. 456.)
E. Prior Prison Term Enhancement
Gutierrez admitted the prior prison term allegation for purposes of the three strikes law, as well as for the recidivism enhancements under sections 667, subdivision (a), and 667.5, subdivision (b), based on the same September 13, 2001 robbery conviction. During the taking of those admissions, the trial court stated that it would enhance his sentence under those first two provisions, but would not impose the one-year prior prison term enhancement under section 667.5, indicating that the enhancement would be stayed. At sentencing, the court stated that it was not imposing the section 667.5, subdivision (b) enhancement because that would constitute a “double use, ” having already imposed the five-year enhancement under section 667, subdivision (a)(1). There was no affirmative statement, however, that the prior prison finding had been stricken.
As the parties agree, “[o]nce the prior prison term is found true within the meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken.” (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. McCray (2006) 144 Cal.App.4th 258, 267.) Gutierrez concedes that the trial court had no discretion to stay the enhancement, but persuasively argues the record shows the court meant to strike it. The court’s reason for not imposing the enhancement is consistent with settled law. (People v. Jones (1993) 5 Cal.4th 1142, 1150 (Jones) [“when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply”].)
Upon issuance of the remittitur, the trial court is directed to amend the sentencing minute order to indicate that the prior prison term enhancement was stricken pursuant to Jones, supra, 5 Cal.4th at page 1150.
Pitchess Motion
In response to Rosales’s pretrial Pitchess motion, the trial court found the defense was entitled to an in camera hearing to review civilian complaints in the personnel files of Detectives Cortez and Jones. After an in camera review, the court found no discoverable information.
Pursuant to defendants’ request, we must determine whether the trial court abused its discretion and erroneously withheld discoverable information from the defense. In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discovery of an officer’s personnel record if the information contained in the record is relevant to his ability to defend against the charge. Later enacted legislation implementing the court’s rule permitting discovery (§§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047) balanced the accused’s need for disclosure of relevant information against a law enforcement officer’s legitimate expectation of privacy in his or her personnel record. The Legislature concluded that a defendant, by written motion, may obtain information contained in a police officer’s personnel records if it is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the court rules as to whether there is good cause for disclosure. (Id., §§ 1043, 1045.) If the court orders disclosure, the custodian of the officer’s records brings to court all the potentially relevant personnel records and, in camera, the court determines whether any of the records are to be disclosed to the defense. “A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330; see also Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086, citing People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Gill (1997) 60 Cal.App.4th 743, 749.)
We have reviewed all material in the record regarding the Pitchess motion, including the moving papers and the sealed transcripts of the in camera proceeding. Those records afford us with an adequate record to conduct our independent review. Our review reveals no abuse of discretion. (People v. Myers (2007) 148 Cal.App.4th 546, 553, citing People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
DISPOSITION
The abstracts of judgment for defendants are modified to reflect a $30 penalty assessment under section 1464, subdivision (a)(1) and a $21 penalty assessment under Government Code section 76000, subdivision (a). A copy of the corrected abstract of judgment shall be forwarded to the Department of Rehabilitation and Corrections. With regard to Gutierrez, the sentencing minute order is to be modified to reflect that the prior prison term enhancement under section 667.5 is stricken. In all other respects, the judgments are affirmed.
We concur: MOSK, Acting P. J. KUMAR, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.