Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Super.Ct.No. RIF114377. Affirmed with directions.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
A jury found defendant guilty as charged of the first degree murder of John Edward Young on January 10, 2004. (Pen. Code, § 187, subd. (a); count 1.) Young was 62 years old and defendant was 18 years old at the time of the murder. The jury also found two felony-murder special-circumstance allegations true: defendant committed the murder while engaged in the crimes of robbery (§ 190.2, subd. (a)(17)(A)) and carjacking (§ 190.2, subd. (a)(17)(L)). The jury found not true a further allegation that defendant personally used a knife in the commission of the murder. (§ 12022, subd. (b)(1).) Defendant was sentenced to life without parole, and appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the trial court erroneously: (1) denied his Faretta motion; (2) admitted hearsay evidence; (3) failed to instruct on an accomplice testimony; (4) refused his request to instruct on the lesser included offense of involuntary manslaughter; (5) failed to ensure his presence during a readback of testimony during jury deliberations; and (6) imposed a parole revocation fine. Defendant further contends the cumulative effect of the trial court’s errors denied him a fair trial.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta).
In view of defendant’s sentence of life without parole, we agree that the parole revocation fine was erroneously imposed and must be stricken. We find no prejudicial error, and affirm the judgment in all other respects.
II. THE EVIDENCE PRESENTED AT TRIAL
A. Background
During the evening of Saturday, January 10, 2004, Joshua Vaughn discovered a body, later identified as the body of John Edward Young, in the parking lot of the Newport Apartments on Banbury near the 91 freeway in Riverside. Vaughn, a resident of the apartment complex, discovered the body as he left his apartment around 8:30 p.m. that evening. Young was lying on the grass, causing Vaughn to initially think he was drunk. When Vaughn turned on the headlights of his car and illuminated Young’s body, he saw there was blood on the lower half of Young’s shirt. Vaughn returned to his apartment and called 911. He did not see anyone in the vicinity of the body.
Shortly after 8:00 p.m. that evening, Franklin Peek walked through the parking lot of the Newport Apartments complex and saw a Hispanic man behaving strangely near an unoccupied truck. The man stood in front of the truck, pointed at it, and gestured at it as though he was trying to pick a fight with it. Peek left the complex and returned half an hour later, after police had arrived. He reported his observations to the police. As he was leaving the complex, Peek did not look in the area where Young’s body was discovered.
At 8:44 p.m., Officer Chris Williams responded to a “subject down” call at the apartment complex. Vaughn directed Officer Williams to Young’s location on a grassy area. Young was positioned on his left side and was holding a cell phone in his left hand. The lower half of his shirt was soaked with blood from the shoulder to the waist. Fire department personnel rolled Young onto his back and pronounced him dead. It appeared he had been stabbed.
Officer Williams notified his supervisor and set up a crime scene perimeter with police tape. Eight to ten officers then searched the area for possible weapons, including a knife. No weapons or knife were found.
Officer Michael Barney arrived at the scene around the same time as Officer Williams. On his way to the scene, Officer Barney received a call of a “subject down” and another man acting in a bizarre manner and looking in windows of vehicles in the parking lot. At the scene, a person in a vehicle pointed to a Hispanic man in the parking lot. Officer Barney contacted the man, later identified as Alfredo Lopez.
Lopez mumbled in Spanish and could not follow orders. He staggered slightly, had slurred speech, and seemed agitated. Officer Barney thought Lopez was on methamphetamine or cocaine. He placed Lopez in the back of his patrol vehicle and detained him for further questioning. Then he walked to the location of the homicide victim, Young.
Officer Barney observed a 100-yard long trail of blood spots in the parking lot that led to the location of Young’s body. It appeared Young had leaned on parked cars as he traversed the parking lot. Officer Barney called for homicide investigators and an interpreter.
Supervising Deputy Coroner Curtis James arrived at the scene several minutes after midnight on Sunday, January 11. He retrieved a wallet from Young’s right front pants pocket, containing $1,171 in cash. Another wallet in Young’s rear pocket contained a California driver’s license, eight credit cards, a Sears gift card, and an ATM card. Young was also wearing a wristwatch.
Forensic pathologist Dr. Mark Fajardo conducted an autopsy of Young. Young had three stab wounds to the left side of his neck and chest. All three wounds were small, ranging from one-half inch to one and one-quarter inches in length and two inches deep. This suggested the assailant used a small, single-sided knife, such as a paring knife or pocketknife. None of the wounds could have been caused by a screwdriver. A wound that entered Young’s chest cavity struck a lung and caused him to bleed to death.
Dr. Fajardo opined that death occurred more than 15 minutes, but less than one hour, after the stabbing. The wounds were consistent with evidence the stabbing occurred near a cable room at the apartment complex and then Young walked to the place where he died. Prompt medical attention could have saved Young’s life. Toxicologist testing of Young’s blood indicated he had a blood alcohol level of .19 percent or .20 percent at the time of death.
B. Lopez is Arrested for Murder, Then Released
Officer Trinidad Lomeli arrived at the crime scene around 9:00 p.m. and spoke to Lopez. Lopez was sweating profusely and appeared to be under the influence of a “stimulant, controlled substance,” possibly methamphetamine. He was muttering to himself, talking rapidly, and looked paranoid.
Officer Lomeli is fluent in Spanish and can communicate effectively with people from Mexico. However, Officer Lomeli had difficulty communicating with Lopez and believed he was from Guatemala because at times he spoke in an Indian dialect. Lopez did not seem to listen to Officer Lomeli. He often gave nonresponsive answers and did not make any sense. He also spoke as if someone was standing next to him when no one was there.
At other times, Lopez elaborated on details. He told Officer Lomeli he had been attacked by some people who pulled a “big knife” on him and took his money. He specifically said, “They wanted to stab me because I had just gotten out of the car and the house,” and “They wanted to get my car, and they wanted to stab me with a real big knife.” He also said, “They grabbed me from the neck and another guy that was with him, he took my $16. He pushed me and was going to fight with me, and the other guy that was in the car with me got up and called the police and they got on top of me and . . . on top of him, but he ran, and when he returned, two police arrived.” Lopez did not identify the person he said was with him “in the car” and whom he said called police.
Lopez’s statements to Officer Lomeli were admitted into evidence without objection.
Lopez had blood on his fingertips. He was transported to the police station where blood was collected from his fingertips and his clothing was collected. He was uncooperative. He was arrested for murder and booked into jail, where he remained until he was released on January 13. He gave police a false address in Los Angeles, and said his date of birth was November 13, 1978. An investigator determined that Lopez was a citizen of Guatemala who had entered the United States illegally. He was deported to Guatemala in July 2005, and investigators were unable to locate him at the time of trial in December 2005. Lopez is not his true name. He used more than 20 aliases in locations, including Oregon, Georgia and Colorado. Lopez weighed around 125 pounds in January 2004 and is five feet four inches tall.
Forensic evidence later revealed that the blood on Lopez’s fingertips was his own blood. Toxicology results on blood drawn from Lopez revealed no drugs or alcohol in his system. However, it showed the presence of acetone and isopropyl alcohol. It is extremely unusual to find acetone in a living person. The acetone indicated that Lopez either had uncontrolled diabetes or had ingested nail polish remover. The acetone in Lopez’s system could have caused him to be disoriented in thought and speech, and behave in a bizarre manner.
C. Police Arrest Defendant at the Motel 6, Driving Young’s Mustang
Riverside Police Officer Daniel Warren was on patrol during the early hours of Monday, January 12. He had been told to look for a silver Mustang, detain the driver, and notify detectives. Shortly after midnight, Officer Warren saw a silver Mustang being driven into the Motel 6 parking lot on La Sierra.
As Officer Warren was running a computer check on the license number of the Mustang, defendant got out of the car. The headlights of the car were still on, so Officer Warren called to defendant that his lights were on. Defendant returned to the car, giving Officer Warren time to run a second computer check. Defendant then walked to the driver’s door of Officer Warren’s patrol car. After running the second computer check, Officer Warren discovered that the Mustang was the subject of a homicide investigation. Officer Warren got out of his patrol car, handcuffed defendant, placed him in the back of his patrol car, and called for backup. Defendant was cooperative.
Officer Warren noticed a second person in the front passenger seat of the Mustang, later identified as Kahlif Roberts. Roberts was passed out drunk. Officer Warren waited for backup to arrive before waking Roberts and taking him into custody.
Detective Steve Shumway went to the Motel 6. Defendant and Roberts were in separate police units when he arrived. He introduced himself and told defendant he wanted to talk with him at the police station about the car he had been driving. He then went to room 218 in the motel to speak with Lisa Hines, defendant’s mother. Detective Shumway knew Hines from his days as a narcotics officer.
Detective Shumway told Hines that defendant had been driving the car of a man who was murdered approximately 24 hours earlier. Hines asked to speak with defendant. They went to the patrol unit where defendant was seated. Detective Shumway told defendant he knew his mother and they respected each other. Detective Shumway later interviewed defendant at the police station.
D. Khalif Roberts’s Testimony
Khalif Roberts, the passenger in the Mustang at the Motel 6, testified he had known defendant for six years. Roberts first saw defendant driving the Mustang on Saturday night, the night before he and defendant were arrested. Defendant came to Roberts’s apartment around midnight to show him the Mustang. Defendant knocked on the window of Roberts’s room. Roberts went to the front door and saw that defendant was with his Samoan friend, Pulu. Roberts let defendant and Pulu into the house. Roberts’s mother allowed him to go outside for five minutes to look at the car. Then Roberts came back inside the apartment.
Previously, defendant did not have a car. Roberts asked him where he got it. Defendant said his grandfather and his girlfriend got it for him, and his girlfriend provided the down payment.
The following day, Sunday, January 11, Roberts went to his job at Kmart. His shift began at noon. Defendant gave him a ride as he was walking to work. Roberts’s shift ended at 9:00 p.m. and he began to walk home. As Roberts was walking home, defendant showed up again and gave him a ride. They got some liquor and went with Lannell Galloway to their friend Meeker’s apartment complex in Colton. They stayed at Meeker’s apartment complex for two or three hours, while Roberts and Meeker drank liquor. After leaving Meeker’s, Roberts, defendant, and Galloway went to the apartment of Roberts’s girlfriend and stayed there for 30 minutes. Roberts drank more liquor. By this time, Roberts was drunk. Roberts went to the Mustang, passed out, and later awoke at the police station.
Roberts did not see anyone other than defendant drive the Mustang on Saturday or Sunday nights. Nor did he hear defendant say anything about stabbing someone.
Roberts also testified that he and defendant got into a fistfight with each other a week or two before defendant showed up at his apartment on the night of January 10 with the Mustang. It was not a big fight and lasted around 30 seconds. Defendant did not cut his hand during the fight.
E. Lannell Galloway’s Testimony Under Use Immunity
Lannell Galloway testified for the prosecution under a grant of use immunity. He had known defendant for several years. They were friends. Galloway and defendant committed a burglary when they were 12 or 13 years old. Galloway had one felony conviction. He had recently pleaded no contest to obstructing and resisting arrest of a police officer. (§ 69.) The conviction was to be reduced to a misdemeanor when he completed probation.
At trial, Galloway denied any involvement in the homicide and claimed defendant never told him he committed the homicide. He denied being with defendant at the time the Mustang was stolen and Young was killed, although he said he might have been with defendant at some point that night. He also denied telling Detective Ricardo Fuentes that he was with defendant the night the Mustang was “jacked.”
Galloway admitted telling Roberts, several weeks after the homicide, that he was present with defendant during the homicide. At trial, however, he claimed he made the statement to Roberts at a party while he was drunk, and he regretted making the statement. He said he was boasting and trying to be someone he was not, a “real G.”
Galloway said he first saw defendant with the Mustang around noon on a Sunday at the Smoketree Apartments, where Galloway’s mother lived. Defendant told Galloway his “grandpa” or family helped him get the car. Galloway’s mother asked how they could buy a car when they were living at Motel 6.
Galloway went for a ride with defendant on Sunday. They picked up Roberts and drove to Moreno Valley. Then they went to Colton to see Galloway’s friend Meeker. They stayed at Meeker’s home for several hours before going home. Roberts became drunk. He was tipsy when they were at Meeker’s. Defendant and Roberts dropped Galloway off at the Smoketree Apartments between 11:00 p.m. and midnight.
Galloway later learned that defendant and Roberts were arrested in the Mustang. The next day, defendant’s mother came to Galloway’s apartment. She was upset and asked what had happened. Galloway told her that defendant showed up with the Mustang and he did not know anything about the “jacking.”
Galloway further testified that, while they were driving to Meeker’s, defendant said something about stabbing. He said something like, “whatever it takes, he’ll [defendant will] stab anyone.” Galloway believed defendant meant he would stab anyone who tried to mess with his friends. Before trial, Galloway told Detective Fuentes that defendant said he would “stab anyone to get what he wants.” But Galloway also told Detective Fuentes he did not take defendant’s statement seriously. At trial, Galloway testified he did not think defendant meant he would stab anyone to get what he wanted. He also denied telling Detective Fuentes that defendant said he used a screwdriver to do a stabbing. Galloway testified that defendant is a “crazy guy” and says funny things sometimes.
F. Defendant’s Statements to Police
Detective Shumway interviewed defendant at the police station on January 12, and recorded the interview on videotape and audiotape. After discussing some preliminary matters, Detective Shumway told defendant that the owner of the Mustang had been found dead. He asked defendant why he initially told Detective Shumway he got the Mustang from his grandfather. Defendant said he lied because he was on parole and he did not realize anyone had been hurt. He said he got the car from Galloway.
Defendant explained that he and Roberts left Roberts’s apartment around 11:00 p.m. on Sunday night, January 11, and walked to the Smoketree Apartments. There, Roberts drank alcohol with Galloway and some Samoan people. As they were leaving, defendant asked Galloway to let him use his car, the Mustang. Defendant was planning to stay the night at Roberts’s house and wanted to get his clothes from the Motel 6. Galloway was drunk and gave defendant permission to use the Mustang.
Defendant said he knew the Mustang did not belong to Galloway and he did not know where Galloway got it. He was not concerned it was stolen, however, because he knew that Galloway’s godfather and uncles rented cars for Galloway.
Defendant said he drove the Mustang from the Smoketree Apartments to Motel 6 to get his clothes. When he got out of the car, a police officer told him his headlights were on. The officer asked defendant to come over after he turned off his headlights. Defendant walked over to the officer and “[t]hat’s when I had lied to him, and said that it was my Grandpa’s car. ‘Cause I know I was on parole. And I didn’t think it was going to be nothing like what it, what it turned out to be.” The officer placed defendant in handcuffs and went to check on Roberts. Defendant said he left the keys in the car and the radio on in an effort to keep Roberts awake.
Defendant claimed that Sunday night, January 11, was the only time he had driven the Mustang. He also claimed he was at Roberts’s apartment on Saturday, January 10, from around 8:00 p.m. until 11:00 p.m., when a woman named Stephanie picked him up and took him to the Motel 6.
Detective Shumway confronted defendant with the fact he had spoken to Roberts, Roberts’s mother, and defendant’s friend Stephanie, and that defendant’s story was inconsistent with what they had said. Detective Shumway told defendant he was not telling the truth and he was going to be booked for murder. For a time, defendant continued to insist that Sunday was the only night he drove the Mustang. He also denied going to Roberts’s house with Pulu on Saturday night.
Finally, defendant admitted he had not been telling the truth. He told Detective Shumway that, after smoking marijuana and drinking alcohol, he began to walk to Roberts’s apartment early Saturday evening. Taking a shortcut, he jumped the gate at the Newport Apartments on Banbury. There, he heard a scuffle and saw a man being robbed. The robber saw defendant and ran away. Defendant described the robber as a Black man, a little older and taller than defendant. Defendant is six feet tall and, as noted, was 18 years old in January 2004.
Defendant said the robbery victim sat on the grass, keys in one hand, wallet in the other, and looked stunned. He saw nothing wrong with the man and saw no blood on him. He snuck up to the man, snatched his car keys, and ran. He could tell they were Mustang keys because they said Ford and had a little horse on them. He had already walked past a Mustang parked in front of the apartment complex. After taking the keys, defendant jumped a wall and waited to see if the man called the police. He returned a short time later and took the Mustang. He could not get it out of park because he did not know how to drive it. He had to ask a passerby how to get the car out of park.
Defendant later picked up Pulu from his apartment in the Smoketree Apartments complex. They sat in Pulu’s apartment and talked about the new car. Pulu paid for some gas and he and defendant drove to Moreno Valley. Defendant told Pulu he got $2,500 from his friend Stephanie, and his grandpa gave him the rest of the money to buy the car.
Later, defendant and Pulu went to Roberts’s apartment and knocked on Roberts’s window. Roberts came outside for five minutes. Defendant told Roberts his grandparents purchased the car for him. The next day, defendant picked up Roberts and Galloway. That was the day Roberts got drunk and defendant was arrested at the Motel 6.
Defendant later accompanied Detective Shumway to the Newport Apartments to reenact the events that occurred there. At trial, Detective Shumway testified that, during a portion of the videotaped interview that was not audiotaped, defendant said he was sneaking in between the cars, intending to “rob” and “victimize” the robbery victim.
G. The Police Investigation
After defendant was arrested, investigators examined his body and found cuts and abrasions on his hand. Dr. Fajardo, the prosecution’s forensic pathologist, opined that photos taken of defendant’s hand on January 12 depicted wounds that were fresh, with no scabs, and not more than 36 hours old. Thus, defendant could have suffered the wounds around 8:30 p.m. on January 10, the approximate time Young was killed. The wounds were inconsistent with having been suffered five days to two weeks before the photos were taken.
Police seized the clothing defendant wore at the time of his arrest, and later seized additional clothing from the room where defendant was staying with his family. The seized clothing included a dark-colored or black hooded sweatshirt, dark blue sweat pants, and tennis shoes. No blood was found on any of these items. Investigators inspected the Mustang on January 12. No blood was found inside the Mustang. However, a lot of blood was found at the scene.
H. Defendant’s Escape From Jail
On February 17, 2004, and while awaiting trial on the murder charge in this case, defendant escaped from the jail facility in Murrieta along with three other inmates. The inmates entered the duct system of the jail and made their way to the roof. They used bed sheets tied together to reach the ground, about 20 to 25 feet below the roof. Authorities discovered the escape the next morning.
The four escapees got a ride to Riverside and went to Meeker’s house around 7:00 a.m. No one was home. Defendant also went to Roberts’s apartment. Roberts told him to leave. Police apprehended defendant two days after the escape. He was wearing a wig and riding in a car driven by his mother.
I. Defendant’s Letters From Jail
Roberts’s mother, Sheryl Barno, testified she received two letters at her home from defendant’s return address in jail. The first letter arrived around three months before defendant’s trial began and was addressed to Roberts. Barno opened the letter and read it, then tore it up and threw it away without telling Roberts about it. The letter asked Roberts to speak to defendant’s lawyer and tell him that defendant and Roberts were drinking, got into a fight, and defendant got cuts on his hand.
Barno received the second letter approximately one month before defendant’s trial began. This letter was addressed to Barno as Mrs. Roberts. The letter apologized for getting Roberts involved, and asked Barno to let Roberts speak to defendant’s lawyer about the cuts on defendant’s hand. The letter explained that defendant was being accused of doing something he did not do. Barno did not tell Roberts about the second letter, either.
J. Defense Case
Defendant did not testify. His defense was that Lopez killed Young. The defense called Scott Andrew Reed, who had witnessed Lopez’s bizarre behavior on the evening of January 10, 2004. Reed said he saw Lopez put something under a truck in the apartment parking lot shortly before police arrived.
III. DISCUSSION
A. Defendant’s Faretta Motion Was Properly Denied
Defendant claims the trial court erroneously denied his Faretta motion for self-representation. Defendant made the motion on December 5, 2005, the day jury selection was to begin and immediately after the court ruled against defendant on a motion in limine.
We conclude the court properly exercised its discretion in denying the motion, based on the quality of defense counsel’s representation and defendant’s insubstantial reasons for the motion. Furthermore, the trial court correctly and implicitly concluded that the motion was equivocal because it was made in a moment of passing anger and frustration.
1. Relevant Background
On December 1, 2005, the trial court heard several motions in limine, including a portion of the testimony in opposition to defendant’s motion to exclude his statements to Officer Warren before he was Mirandized, and his subsequent, videotaped statements to Detective Shumway at the police station after he was Mirandized. Also on December 1, the court, prosecutor, and defense counsel discussed jury selection, which was scheduled to begin on December 5.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).
On December 5, the court heard the rest of the testimony in opposition to the Miranda motion. While testifying on December 5, Detective Shumway referred to a transcript of the videotaped interview he conducted with defendant at the police station. The transcript showed that defendant told Detective Shumway the same thing he allegedly told Officer Warren, that is, that his grandfather gave him the Mustang. Officer Warren did not recall defendant making that statement.
The court tentatively ruled that the statement to Officer Warren was admissible, because the transcript of defendant’s videotaped interview with Detective Shumway indicated he made the same statement to Detective Shumway after he was Mirandized. After the court announced its tentative ruling, the following colloquy occurred:
“[DEFENSE COUNSEL] [ATTORNEY] JOHNSON: “. . . Mr. Sapp has indicated to me that he doesn’t agree with the transcript that the Court read. I’ve listened to this interview. I think it’s accurate, but he says that he wants the tape played right now. I told him that wasn’t possible. He now wants to go [in] pro[.] per. I think that’s a really dumb decision.
“THE COURT: We’ll listen to the tape later, if there’s a conflict between the tape and the transcript, the tape controls. We’re not going to play it right now. We’re moving on to jury instructions right now. As to going [in] pro[.] per[.], Mr. Johnson was just the defense attorney of the year last year. He’s a terrific attorney. You can do better than him[?]
“THE DEFENDANT: Yes, I do, because of the simple fact these things that are on here are not true. When Ms. Galante was my attorney last year we moved to get the audio, the audiotapes. This was never stated on any videotape, because the questions that are on here were never asked during the video interview.
“THE COURT: We’ll arrange a time for you to look at them so you can allay your fears.
“THE DEFENDANT: I know what the videotape holds. I’m talking about as far as the audiotape. They got this off the audiotape. There was never audiotape present[ed].” (Italics added.)
The prosecutor next explained that the transcript was prepared based on the four audiotapes, not the videotape, because the stenographers can only transcribe from audiotapes. The prosecutor offered to make an audiotape directly from the videotape and make a new transcript of that. Defendant continued to insist that the transcript presented in court did not reflect what he said during his police station interview. The court and prosecutor then made the following comments.
“THE COURT: Here’s what we’re going to do. [To the prosecutor:] You’re going to bring over the video and audiotapes. [To defendant:] You can sit here and watch them all afternoon so that you can feel assured that everything is what it seems to be. I’m not going to let you go [in] pro[.] per. One, it’s too late. Number two, with your mental history you’d be shooting yourself in the foot.”
“[THE PROSECUTOR]: And Your Honor is . . . exercising his discretion given the lateness of that motion according to case law . . . to deny that Faretta request since we started trial?
“THE COURT: Yes. . . .” (Italics added.)
2. Applicable Law
A defendant in a criminal trial has a Sixth Amendment right to represent himself (Faretta, supra, 422 U.S. at p. 836.) A trial court must grant a Faretta motion for self-representation and has no discretion to deny it provided three conditions are met: The motion is (1) unequivocal, (2) knowing and intelligent, and (3) made within a reasonable time before trial. (People v. Welch (1999) 20 Cal.4th 701, 729 (Welch); People v. Windham (1977) 19 Cal.3d 121, 127-128.)
A Faretta motion made on the eve of trial is addressed to the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827.) In exercising its discretion, the court is to consider “such factors as the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow the granting of such a motion.” (Ibid., citing People v. Windham, supra, 19 Cal.3d at p. 128.)
Furthermore, a motion made in “passing anger or frustration” may be denied on the grounds it is unequivocal. (People v. Barnett (1998) 17 Cal.4th 1044, 1087.) An appellate court examines the entire record de novo to determine whether a defendant’s Faretta motion was equivocal. (People v. Dent (2003) 30 Cal.4th 213, 218.)
3. Analysis and Conclusions
Defendant argues the trial court had no discretion to deny his Faretta motion, because it was unequivocal, knowing and intelligent, and timely. Furthermore, defendant argues there was no indication he made the motion for the purpose of delaying the trial, although he acknowledges he made the motion on the day jury selection was to begin. He observes that he did not request a continuance. Nor did the court ask whether he was requesting a continuance. He further argues that the court erroneously denied the motion based on his “mental history.”
Defendant is correct that his “mental history” or ability to competently represent himself is not a proper consideration under Faretta. (People v. Welch, supra, 20 Cal.4th at p. 733.) However, defendant’s motion was untimely because it was made on the day jury selection was to begin and after the court had heard several motions in limine. Accordingly, the trial court had discretion to deny the motion.
Nor did the trial court abuse its discretion in denying the motion. In denying the motion, the court expressly considered the factors set forth in People v. Marshall, supra, 13 Cal.4th at page 827, including the quality of Attorney Johnson’s representation of defendant, which the court had reason to expect would be excellent, and defendant’s reasons for making the motion, which were insubstantial and easily resolved without firing Attorney Johnson.
Defendant was clearly dissatisfied with Attorney Johnson’s representation because Attorney Johnson did not agree with defendant’s position that neither the audiotapes nor the videotape of the police interview showed defendant admitting he told Officer Warren that he got the Mustang from his grandfather. The court resolved the issue by allowing defendant to watch the videotape and listen to the audiotapes that afternoon.
Accordingly, in denying the motion, the court correctly recognized that (1) it had discretion to deny the motion because it was untimely, (2) the quality of Attorney Johnson’s representation weighed against granting the motion, and (3) defendant’s reasons for making the motion were easily resolved without defendant representing himself. (People v. Marshall, supra, 13 Cal.4th at p. 827.) The court also implicitly and correctly recognized that the motion was equivocal because it was made in a passing moment of anger and frustration. (People v. Barnett, supra, 17 Cal.4th at p. 1087.)
In view of defendant’s reasons for the motion and the quality of his representation, the court properly exercised its discretion in denying the motion.
B. Detective Shumway’s Testimony That Lopez Was Able to Describe His Attackers in Detail Was Not Hearsay
Defendant claims the trial court erroneously admitted hearsay evidence through the testimony of Detective Shumway. He claims the hearsay consisted of Lopez’s detailed descriptions of his two attackers to Detective Shumway and Officer Lomeli. We reject this contention.
1. Relevant Background
Lopez could not be located and was unavailable to testify at defendant’s trial. Officer Lomeli testified without objection that Lopez indicated he was attacked by two persons. Defendant does not contest the admissibility of Lopez’s out-of-court statement that there were two attackers.
Later, on direct examination of Detective Shumway, the prosecutor elicited that Lopez gave police a detailed description of his two assailants, including their heights, builds, ages, ethnicities, the type of clothing they were wearing, and their facial hair. But the prosecutor did not elicit any testimony from Detective Shumway about the descriptions Lopez gave police. Nevertheless, defense counsel objected to the testimony on hearsay grounds. The objections were overruled.
2. Applicable Law and Analysis
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying [in court] and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible except as provided by law. (Id., subd. (b).)
The record shows that Detective Shumway did not testify to how Lopez described his attackers. Instead, Detective Shumway was only asked whether Lopez was able to describe to police his attackers’ heights, builds, ages, ethnicities, clothing, and facial hair. Detective Shumway answered “yes” to these questions, without revealing Lopez’s out-of-court statements describing his attackers. This was not hearsay.
Defendant further claims that the admission of Detective Shumway’s hearsay testimony violated his right to confrontation. (Crawford v. Washington (2004) 541 U.S. 36, 61 [124 S.Ct. 1354, 1370, 158 L.Ed.2d 177].) This claim is not cognizable on this appeal, because defendant did not object to the admission of the evidence on this ground in the trial court. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 434-435 [party may not argue on appeal that evidence should have been excluded for reasons different from the one stated at trial].) In any event, Detective Shumway’s testimony was not hearsay and did not otherwise violate defendant’s right to confrontation.
C. Any Error in Failing to Instruct Sua Sponte on Accomplice Testimony Was Harmless
Defendant next claims the trial court erroneously failed to instruct the jury on its own motion to determine whether Galloway was an accomplice and, if so, that Galloway’s testimony required corroboration and had to be viewed with caution. He specifically claims the jury should have been given CALJIC Nos. 3.10 through 3.14, 3.18 and 3.19.
The requested instructions address the principles governing accomplice testimony: CALJIC Nos. 3.10 (defining accomplice), 3.11 (accomplice testimony required corroboration), 3.12 (sufficiency of evidence of corroboration), 3.13 (evidence of corroboration may not be supplied by accomplice), 3.14 (accomplice’s criminal intent), 3.18 (accomplice testimony to be viewed with distrust), and 3.19 (defendant has burden of proving witness was accomplice by preponderance of evidence).
1. Relevant Facts Concerning Galloway
As discussed, Galloway testified for the prosecution under a grant of use immunity. Galloway denied being present at the scene of the crime, but he said he could have been with defendant at some point that night. He admitted bragging to Roberts that he had “jacked” the Mustang, but at trial he said that was a “foolish” statement he made to sound tough and he regretted making it. At trial, Galloway maintained he did not know anything about the carjacking and murder until after defendant was arrested. Investigator Fuentes testified that Galloway told him that on Sunday, the day defendant, Pulu, Roberts, and Galloway were driving around in the Mustang, defendant said he would “stab anyone to get what he wants.”
2. Applicable Law
A court has a duty to instruct the jury sua sponte on the principles governing the testimony of accomplices when there is substantial evidence from which the jury could find a witness was an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.) Substantial evidence is “‘evidence sufficient to “deserve consideration by the jury.”’” (Ibid.) An accomplice is “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.)
To be chargeable with an identical offense, the witness must be a principal under section 31. Principals include “persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . .” (§ 31.) A person is liable as an aider and abettor if he or she acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of committing, encouraging, or facilitating the commission of the offense. (People v. Marshall (1997) 15 Cal.4th 1, 40.) An aider and abettor need not intend the specific offense committed, but must have knowingly engaged in or encouraged criminal activity whose reasonably foreseeable outcome included the charged offense. (People v. Boyer (2006) 38 Cal.4th 412, 467.)
3. Analysis and Conclusions
Defendant argues that Galloway’s statement to Roberts that he was with defendant during the commission of the homicide was sufficient to warrant instructing the jury on accomplice principles. We need not decide this question, because even if the trial court had a duty to give accomplice instructions on its own motion, the error in failing to give the instructions was harmless.
The failure to give accomplice instructions is harmless under any standard where the accomplice’s testimony is sufficiently corroborated. (People v. Boyer, supra, 38 Cal.4th at p. 467; People v. Zapien (1993) 4 Cal.4th 929, 982.) Corroborating evidence “‘may be slight and entitled to little consideration when standing alone.’ [Citations.]” (People v. Miranda (1987) 44 Cal.3d 57, 100.) “Corroborating evidence ‘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 [such] evidence be sufficient in itself to establish every element of the offense charged.’ [Citation.]” (People v. Sully (1991) 53 Cal.3d 1195, 1228.)
Here, there was ample evidence connecting defendant to the homicide, quite apart from Galloway’s statement to Roberts that he was with defendant when the homicide was committed, or Galloway’s pretrial statement to Detective Fuentes that defendant said he would stab anyone to get what he wanted. Roberts testified that defendant and Pulu came to his apartment shortly after the homicide and showed him the Mustang. And defendant was arrested in possession of the Mustang on Sunday, the day after the murder. Thus, independent, corroborating evidence showed that defendant was in possession of the Mustang shortly after the murder.
In addition, defendant’s statements to Detective Shumway tended to implicate defendant in the murder. Defendant claimed he witnessed Young being robbed by another man who was six feet tall, like defendant, but who was slightly older than defendant. Defendant’s description of the robber tended to match his own description. Defendant also claimed he merely took Young’s car keys after Young was robbed.
Furthermore, the rationale for instructing a jury to view with caution an accomplice’s testimony that incriminates the defendant is that the accomplice has an interest in shifting blame to the defendant. (People v. Cook (2006) 39 Cal.4th 566, 601.) At trial, Galloway was not attempting to shift blame to defendant. Instead, he denied he was with defendant at the time of the homicide, denied that defendant told him he committed the homicide, and denied that defendant made any statement to the effect that he would stab anyone to get what he wanted. The jury also heard that Galloway had been granted use immunity. In view of the substance of Galloway’s testimony, the failure to instruct the jury that Galloway’s testimony required corroboration or had to be viewed with caution was not prejudicial to defendant.
D. The Trial Court Properly Refused to Instruct on Involuntary Manslaughter
Defendant claims the trial court erroneously refused his request to instruct the jury on involuntary manslaughter as a lesser included offense of murder. He argues there was substantial evidence that he committed a misdemeanor theft in taking Young’s car keys and thereby prevented Young from receiving medical attention. We disagree. The trial court properly concluded that the evidence did not warrant instructions on involuntary manslaughter.
1. Applicable Law
A trial court has a duty to instruct on lesser included offenses only when there is substantial evidence that the lesser included offense, but not the greater charged offense, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) Ordinarily, involuntary manslaughter is treated as a lesser included offense to murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422.)
Involuntary manslaughter includes a killing that occurs “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b); People v. Lewis (2001) 25 Cal.4th 610, 645.) The crime of involuntary manslaughter also includes an unintentional killing without malice that occurs while the defendant is committing an unlawful act not amounting to a felony. The latter is the “misdemeanor-manslaughter” theory of involuntary manslaughter. (People v. Lee (1999) 20 Cal.4th 47, 60-61.)
2. Analysis
Defendant argues that the trial court erroneously refused his request to instruct on involuntary manslaughter by giving CALJIC No. 8.45. He argues the evidence supported a reasonable inference that he took Young’s car keys -- a misdemeanor theft -- which deprived Young of an opportunity to seek medical assistance. Alternatively, he argues the jury could have reasonably determined that he acted without due caution and circumspection when he took the car keys, and that his negligence deprived Young of the means to obtain medical assistance.
We disagree with defendant’s view of the evidence. Accepting as true defendant’s claim that he merely took Young’s car keys, there was no evidence that taking the keys was a substantial factor in Young’s death. (CALJIC No. 8.55 [to constitute manslaughter, there must be an unlawful act which was the cause of the death].) Instead, the evidence showed that Young was too impaired to have made it back to his car. He had a blood alcohol content of .19 or .20 percent, and he was bleeding to death. Nor was there any evidence that he was trying to get back to his car. Indeed, it appeared he was unable to use his cell phone. Thus, there was no evidence that Young was guilty of involuntary manslaughter, but not murder.
Finally, even if involuntary manslaughter instructions should have been given, the error was harmless because there is no reasonable probability the jury would have found him guilty of involuntary manslaughter rather than murder. (People v. Rogers (2006) 39 Cal.4th 826, 884; People v. Breverman, supra, 19 Cal.4th at p. 178 [erroneous failure to instruct on lesser included offense reviewed under reasonable probability standard].) The jury was instructed on robbery, carjacking, and vehicle theft as lesser included offenses to felony murder, but rejected each of these offenses in favor of finding defendant guilty of murder. Thus, the jury necessarily rejected defendant’s defense that he only happened upon the crime scene after Young was attacked, took Young’s car keys, and stole Young’s Mustang.
E. Readback of Testimony
Defendant claims he was denied his federal constitutional right to be present at all stages of the trial when testimony was read back to the jury outside his presence and without a waiver of his right to be present. We reject this claim.
1. Relevant Background
After the jury began deliberations at 12:05 p.m. on December 28, 2005, defendant told the court he would like to be present if the jury had any questions. The court asked counsel to provide telephone numbers to the clerk and ordered defendant to be kept nearby. At 4:00 p.m. on December 28, the jury asked for a readback of the testimony of Officer Warren, the officer who took defendant into custody after seeing him driving the Mustang in the Motel 6 parking lot.
The court granted the readback request in writing and the readback occurred that afternoon. At the close of the day, the court adjourned the jury and ordered defendant to return the following morning. On December 29, the jury resumed deliberations and returned its verdict that afternoon.
The record does not indicate whether defendant was present or not during the readback of Officer Warren’s testimony. The court ordered he was to be kept nearby in the event the parties needed to discuss any questions, and the clerk’s minute order reflects that defendant was returned to jail at the close of the day when the jury was adjourned for the evening.
Previously, on December 6, defendant, the prosecutor, and defense counsel signed a written stipulation which stated, in pertinent part, “The defendant(s) is(are) present at all phases, stages, and sessions of the trial unless his(her)(their) absence is expressly brought to the attention of the Court and such fact is entered in the minutes of the Court.” The court approved the stipulation and signed an order on it.
2. Applicable Law
“‘A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code. [Citations.] A defendant . . . “does not have a right to be [personally] present at every hearing held in the course of a trial.” [Citation.]’” (People v. Cleveland (2004) 32 Cal.4th 704, 741.)
More specifically, under the due process clause of the Fourteenth Amendment, a criminal defendant does not have a right to be personally present at a particular proceeding unless the proceeding is “‘critical to [the] outcome’” and “‘his presence would contribute to the fairness of the procedure.’ [Citation.]” (People v. Waidla (2000) 22 Cal.4th 690, 742.) Similarly, under the California Constitution, “‘“[T]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him . . . . [Citation.]” [Citation.]’” (People v. Davis (2005) 36 Cal.4th 510, 530; Cal. Const., art I, § 15.)
Sections 977 and 1043 implement the state constitutional provision. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) Section 977, subdivision (b)(1) provides: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . .” (Italics added.)
In contrast to section 977, subdivision (b)(1), section 1043, subdivision (b)(2) provides that a noncapital felony trial may proceed in the defendant’s absence if it commenced in the defendant’s presence and the defendant is “voluntarily absent.” (Italics added.) When trial has commenced in defendant’s presence, section 1043, subdivision (b)(2) applies, not the written waiver requirement of section 977, subdivision (b)(1). (People v. Gutierrez, supra, 29 Cal.4th at p. 1204.)
3. Analysis
Defendant had a right to be present during the readback. (People v. Avila (2006) 38 Cal.4th 491, 598; § 977, subd. (b).) But the stipulation defendant signed authorized the trial court to respond to the written inquiries of the jury in writing, and have the court reporter read portions of the testimony to the jury. In view of the stipulation, defendant was voluntarily absent during the readback, if he was in fact absent. (§ 1043, subd. (b)(2).)
We are mindful that, when the jury began deliberations, defendant said he wanted to be present in the event the attorneys had to discuss any questions from the jury. But defendant’s wish to be present in the event any questions had to be discussed is entirely consistent with his earlier stipulation authorizing the trial court to respond in writing to questions that did not need to be discussed, such as readback requests, and to have the court reporter read back the testimony.
We further observe that any error in failing to ensure defendant’s presence during the readback was “‘statutory only and thus “is reversible only if it is reasonably probable the result would have been more favorable to defendant absent the error.” [Citation.]’ [Citation.]” (People v. Avila, supra, 38 Cal.4th at p. 598.) Because defendant has provided no basis upon which we could conclude the results of the trial would have been different had he been present at the readback, the violation of section 977 was harmless. For the same reason, defendant’s absence during the readback did not offend his constitutional rights to due process or a fair and reliable trial. (Ibid.)
F. No Cumulative Error
Defendant contends reversal is required because the cumulative effect of the trial court’s errors rendered the trial fundamentally unfair in violation of his due process rights. (People v. Hill (1998) 17 Cal.4th 800, 844-848.) We find no cumulative error. The only arguable error was the trial court’s failure to give accomplice instructions concerning the testimony of Galloway. And for the reasons discussed, the failure to give accomplice instructions was harmless.
G. The Parole Revocation Fine Must Be Stricken
Finally, defendant contends his parole revocation fine must be stricken in light of his sentence of life in prison without the possibility of parole. The People agree. So do we. A parole revocation fine is unauthorized where, as here, the defendant’s sentence does not permit the possibility of parole. (§ 1202.45; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1185.) We therefore amend the judgment to strike the parole revocation fine.
IV. DISPOSITION
The matter is remanded to the trial court with directions to amend defendant’s abstract of judgment to reflect that his parole revocation fine has been stricken and forward an amended copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez P.J., Miller J.