Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VA079287 of Los Angeles County. Thomas I. McKnew, Jr., Judge.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
In 2006, Derrick Charles Snowden was convicted by jury of two counts of first degree murder (Pen. Code, § 187, subd. (a)) committed in 1992, the day after the Rodney King verdicts. The jury found true the special circumstances of multiple murder and that a victim was a witness to a crime and was intentionally killed in retaliation for giving testimony in a juvenile proceeding (Pen. Code, § 190.2, subds. (a)(3) & (a)(10)). The jury also found true the allegation that appellant personally used a firearm (Pen. Code, § 12022.5, subd. (a)). Appellant was sentenced to two consecutive terms of life without the possibility of parole plus 70 years in state prison, which consisted of 35 years to life for each count. Appellant was ordered to pay a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a suspended $10,000 parole revocation fine (Pen. Code, § 1202.45). Appellant was given 931 days of custody credit consisting of actual days in custody.
Appellant claims the trial court made numerous evidentiary errors, including improperly admitting evidence consisting of hearsay statements, prior bad acts and irrelevant and prejudicial testimony, and gave erroneous and outdated jury instructions. The People concede that sentencing errors were made. We affirm the judgment as modified herein.
FACTS
Prosecution Case
Background
Appellant grew up across the street from the Porras family in the gated community of Shadow Park in Cerritos, California, a “nice” neighborhood where no one locked their doors. Appellant lived with his parents, William and Margo Snowden, and sister Monique. His father, a former deputy sheriff, died in 1988.
In 1985, appellant, who was then 16 years old, was one of several suspects arrested in connection with a burglary of the residence of John and Gisela Flick, who lived next door to the Porras family. Mayda Porras and two of her daughters observed appellant in the Flick home at a time when the Flicks were on vacation. The police later found appellant sleeping in the Flick’s car parked elsewhere in Shadow Park. Appellant was in possession of jewelry taken from the Flick residence. Mayda and her daughter Suzanne testified against appellant and the juvenile court sustained a burglary charge against him. Appellant was committed to the California Youth Authority (CYA) on August 9, 1985 and was paroled on November 25, 1987. Appellant returned to CYA for two months in October and November 1989 for a parole violation. He then moved to Las Vegas in 1989 when he was 21 years old.
Prior to his move, appellant lived in his mother’s garage. He was not allowed inside the house, though he sometimes entered it when his mother was away and he knew how to avoid the alarm sensors. Appellant and his friend, Jason Phinney, used marijuana and methamphetamine in the garage. Appellant had a license plate collection and stolen credit cards, including gasoline credit cards. When he and Phinney used the stolen cards at gas stations, appellant would first switch the license plate of his car with a fake one. If the stolen credit card had a female name on it, appellant would ask one of his female friends to make the card transaction.
Six to eight months before the murders that took place in April 1992, Phinney saw appellant cleaning a .38-caliber revolver in his garage. Appellant told Phinney the gun had belonged to his father and that he had access to a safe inside the house that contained several guns. Appellant revealed that one of the guns had sentimental value and that he would never dispose of it.
On January 30, 1991, appellant was one of the targets of a drug arrest at a motel in Norwalk, California. A search of appellant’s wallet yielded two gasoline cards belonging to a female. A license plate from a salvaged car was found in the motel room where appellant was detained. Appellant admitted to the arresting officer that he once used a fake license plate when buying gasoline, but denied knowing how the credit cards came to be in his wallet.
In April 1992, about two weeks before the murders, Mayda Porras and her adult children Cynthia and Ricardo and Ricardo’s girlfriend, Virginia, were outside the house in which they all lived in Shadow Park when they saw appellant with two females, one of them Caucasian, exit the Snowden garage and enter a car. Cynthia, Ricardo and Virginia each testified that Mayda appeared scared, and Cynthia recalled her mother saying, “I’m scared of him. I want to go back home.” The last time Cynthia had seen appellant was in 1985.
In 1992, appellant was 24 years old. Mayda was 52 years old and worked from home as a bookkeeper. Along with Cynthia, Ricardo and Virginia, Mayda also lived with 28-year-old housekeeper Anna Sylvia Junco, who was engaged to be married and had emigrated to this country from Costa Rica less than a year earlier. During the day, Junco babysat the infant son of one of Mayda’s other daughters, Evelyn, and the infant daughter of one of Evelyn’s friends. Appellant’s mother and his then 14-year-old sister Monique lived across the street from the Porras residence.
The Murders
On April 30, 1992, the day after the Rodney King verdicts were returned, rioting had already erupted in Los Angeles, though not in Shadow Park. After going to work that morning, Mayda’s daughter Cynthia tried calling her mother at home, but received only a busy signal. Cynthia left work and arrived home around 3:45 p.m. She noticed that her mother’s car was missing from the driveway. Mayda owned a 1987 Nissan Maxima with a personal license plate that said “MAYDAS.” Inside the house, Cynthia found the babies in their playpen. One baby was crying and had what appeared to be blood on her clothes, but Cynthia found no injuries. Cynthia then went to her mother’s room and found her mother’s body on the bathroom floor with her eyes open. Cynthia called her father and 911. The police later found Junco’s body face down in the garage. Subsequent autopsy reports showed that Mayda died of three fatal gunshot wounds and Junco suffered at least six gunshot wounds, five of which were fatal.
Appellant’s Flight and Admission
Around 10:00 p.m. on the night of the murders, appellant knocked on Jason Phinney’s window and asked for his belongings because he was “taking off.” Appellant appeared “antsy” or “jumpy,” and left in a Nissan Sentra with a blonde female. Phinney did not see appellant again. Phinney denied knowing that appellant ever lived in Las Vegas and denied helping appellant move to Las Vegas.
Traci Minium, who worked for the Department of Homeland Security, testified that she met appellant in Las Vegas in 1998 or 1999 when he was dating her sister. Appellant and her sister were both using drugs at that time. When Minium confronted appellant about his drug problems and urged him to get help from his family, appellant started crying and said, “I can’t go home. You don’t understand. I shot somebody. I can’t go home. I can’t go back to California.” She did not take appellant seriously and never recounted the statement until the police contacted her in 2003. Minium, who used to be a police dispatcher, was “one hundred” percent certain that appellant had said he shot someone.
The Investigation
The investigation of the murders was initially led by Los Angeles Sheriff’s homicide detectives John Brown and Robert DeMangus, who arrived at the scene the evening of the murders. Detective Brown did not notice any signs of forced entry to the house or signs of struggle. A purse was found near Mayda’s body and credit cards appeared to be missing from a credit card holder. Five .38-caliber shell casings were found, one in the family room and four in the garage. Ballistics testing showed that the recovered casings came from the same gun, a revolver that required manual ejection of cartridges. In April 1997, Detective Brown mistakenly authorized destruction of the casings.
Deputy Sheriff Ralph Salazar testified that he processed areas of the Porras house for fingerprinting and that he found no identifiable fingerprints. He could not recall whether he had written a report and stated that he would not necessarily have written a report if he could not get fingerprints of evidentiary value. No other witness saw the house being processed for fingerprints. In December 2005, 13 years after the murders, DNA testing on bloody items recovered from the scene, including baby clothes and Junco’s shoes, showed that the blood came from Junco, and appellant was excluded as a source of any blood.
After the murders, Detective Brown interviewed Mayda’s children and learned appellant’s name, that appellant had been involved in a burglary of a neighbor’s house and that Mayda and her children had seen appellant outside his mother’s house two weeks earlier.
When Mayda’s daughter Evelyn was cleaning the house after the murders, she discovered that Mayda’s purse in the vanity area of her bathroom contained jewelry. There was also a few hundred dollars in cash in Junco’s room.
Two days after the murders, Mayda’s car was located on a street in Shadow Park after the vehicle identification number was traced to her registration. Two witnesses reported seeing the car parked there on the night of the murders by a young female, who then walked to the end of the cul-de-sac to a shortcut to the park, a path which would likely only be known to someone familiar with the neighborhood. One of the witnesses identified the female as an attractive African-American female. Twelve years later in 2004, the other witness was shown a photographic six-pack to identify the female and narrowed the possibilities to three photographs, one of which was a photograph of Monique when she was 13 or 14 years old.
On May 2, 1992, Detective Brown searched Mayda’s car. He found a receipt showing that a credit card in the name of Cynthia Porras was used to purchase gas at 4:08 p.m. the day of the murders at a gas station in Long Beach, approximately 11 miles from Shadow Park. Cynthia testified that she did not buy gas in Long Beach that day and the signature was not hers. A sheriff’s document examiner later compared the signature with a handwriting sample obtained from Monique as an adult in 2003 and could not determine if Monique had signed Cynthia’s name as a teenager. By the time of the trial, the gas station attendant could no longer remember the transaction, but on May 6, 1992 he told detectives that the driver of the car was a Caucasian female approximately 40 years old.
In the trunk of Mayda’s car, Detective Brown found a Nevada license plate that matched the one appearing on the rear of the car. He traced the license plate to a bus servicing business that appellant’s parents had once operated. The license plates were processed for fingerprints. In December 2002, 10 years after the murders, all of the identifiable fingerprints on the plates were matched to Monique. Another fingerprint on the outside rear passenger’s door was also matched to Monique. After the car was returned from impound, Mayda’s son Ricardo found a Bazooka bubble gum wrapper in the ashtray and Mayda did not chew that gum.
Detective Brown was unsuccessful in locating appellant, who called the detective twice but refused to meet with him. Detective DeMangus retired less than a month after the murders and Detective Brown retired in March 2000 following a medical leave. The case was turned over to Detective Steve Davis. In 2002, Detective Davis asked Detective Cheryl Comstock, who worked on unsolved cases, to assist in the investigation.
After interviewing appellant’s mother and learning there were still guns in the Snowden residence that had belonged to appellant’s father, Detective Comstock returned to the residence with a search warrant. Appellant’s mother produced a Smith and Wesson .357 Magnum that was capable of firing .38-caliber bullets. The gun had sentimental value to the Snowdens because it had been the service revolver of appellant’s father when he was a sheriff’s deputy. Ballistics testing confirmed that this gun was the murder weapon. At trial, sheriff’s criminalist, Dale Higashi, a firearms expert, testified that the Smith and Wesson gun, which fires six shots, is not easy to reload with two hands and is big and heavy. The gun was passed around the jury.
On August 29, 2002, Detectives Davis and Joe Sheehy interviewed appellant outside a drug rehabilitation center in Santa Ana. The interview was taped with appellant’s knowledge and played for the jury. Appellant denied involvement in the murders. He claimed that he was in Las Vegas at the time of the murders participating in the riots there and that around the time of the murders he was spending time with gang members he had met in jail, selling and using crack cocaine. The parties stipulated that appellant never had any gang involvement or gang association. A gang expert with the Los Angeles County Sheriff’s Department opined that appellant’s story about selling drugs for a gang was false. He explained that gang members are territorial, do not welcome outsiders who could turn out to be informants or rival gang members, and would not trust an addict to sell drugs.
In July 2003, the detectives wiretapped telephone calls between Margo, Monique and appellant. In a meeting between Monique and Detective Comstock on July 16, 2003, Monique volunteered that her fingerprints might be on the gun recovered from her mother’s house. Detective Comstock had not informed Monique that this gun was the murder weapon. Later that day, Monique called her mother, who then spoke with appellant. During this taped conversation, which was played for the jury, appellant asked his mother if she was telling him the gun in her house was the murder weapon. Margo told appellant the police had not said that, just that “they have Billy’s service revolver.” Appellant then said, “but they got the revolver that killed them,” and later stated that all of their fingerprints should be on the gun since they all lived in the house with the gun.
Monique Snowden’s Testimony
At the time of the murders Monique was in eighth grade and had driven her mother’s car without permission to attend a party. She had also visited shooting ranges with her father, but testified that she did not know how to load a gun. She and appellant were not that close, though he would often call her and ask her to leave the door to the Snowden house unlocked, which Monique would agree to do.
Monique denied committing the murders or making a confession to her cousins or to anyone else. She also denied driving Mayda’s car on the night of the murders, though she admitted that only four other African-American families lived in Shadow Park at the time of the murders. Monique remembered helping appellant switch the license plates on Mayda’s car on the day of the murders. She also admitted that during a grand jury proceeding she testified that appellant had driven her in a car on the day of the murders. Before she testified in that proceeding, she discussed the matter with her aunt and uncle, who were both criminal defense attorneys. Her aunt told her to ask for immunity, which she did. The prosecutor gave her immunity, though she did not understand what that meant.
Defense Case
Evidence of Monique’s Confession
Appellant’s cousin, Rosalyn Jackson, testified that in June 1992 after Monique made Rosalyn swear an oath of secrecy, Monique confessed that she had killed three people, including a male, at the Porras residence. Monique claimed that she killed them because she did not want her mother to know she had gone to the residence to burglarize it like she had done before. Monique wore her father’s uniform and when she discovered people were home, she told the housekeeper to put the babies in the crib, then shot the housekeeper. She told a man inside the house to kneel and then shot him through a pillow, and she shot a third person inside the house. Rosalyn told her sister Reneece and they discussed the confession with other family members, including appellant’s aunt and uncle, who advised them not to repeat the story. Rosalyn had the impression that her family did not believe her. Both sisters testified they had seen Monique with marijuana and Monique informed Rosalyn that she was dealing drugs. During one of her visits with Monique in the years 1990 through 1992, Reneece saw Monique sell marijuana to an individual in Shadow Park. Both sisters used drugs themselves. On cross-examination, Rosalyn and Reneece testified that they did not mention the confession in their first interview with appellant’s defense attorney, but did so later after learning that Monique had immunity from being prosecuted for murder. Rosalyn admitted that she was a biased witness trying to help appellant avoid a conviction, and Reneece admitted having negative feelings toward Monique. Rosalyn also admitted it did not sound reasonable that she would have forgotten Monique was a triple murderer when she asked Monique to be the godmother of her child.
Margo Snowden testified that she threw away her husband’s uniforms a year after his death, and that she had caught Monique stealing from her and the housekeeper. She testified that Monique was not a truthful person around age 14.
Monique’s Police Interview
In an interview with Detective Comstock in July 2003, Monique explained that her fingerprints were on the license plates found on Mayda’s car because she had previously thrown them away from her mother’s house and that her fingerprint was on Mayda’s car door because she used to ride her bike in the vicinity of Mayda’s car. Monique stated that she might have been home sick on the day of the murders, but she could not remember. She also described the murder weapon as a gun that required one to “drop in the bullets and then close it and then cock it back and then shoot it.” Detective Comstock testified that Monique was incorrect about the gun, that it was a double-action gun and no cocking was required to squeeze the trigger.
Monique’s Grand Jury Testimony
Monique testified before the grand jury on December 10, 2003. During a recess, the prosecutor told her that she was “holding back,” that she needed to be truthful and that he would give her immunity from perjury. Monique testified that on the day of the murders she was in school and returned home by 4:00 p.m. She denied putting license plates on Mayda’s car, but stated that appellant picked her up from school in a car that looked like Mayda’s car.
Alibi Evidence
Appellant’s cousin, Eddie Wormwood, saw appellant in Las Vegas around 5:00 or 5:30 p.m. on the day of the murders when he went to the property owned by appellant’s grandmother. Prior to that time he had not seen appellant for a “couple months.” Appellant’s grandmother testified that at some point appellant came to live with her in Las Vegas. On the day of the murders she thought she saw appellant on television during news coverage of the riots in Las Vegas. He was walking past a shopping area on the same street as her property. She admitted that she did not see the face of the individual on television and based her belief that it was appellant on the clothing and build of the person. Appellant’s aunt went to the house of appellant’s grandmother the morning after the riots and saw appellant there with a burnt can of beer.
Impeachment Evidence
Joseph Palmieri grew up in Cerritos and was friends with appellant and Jason Phinney. Sometime between December 1989 and February 1990, Palmieri and Phinney helped appellant move to Las Vegas. When Detective Davis interviewed Phinney in June 1999, Phinney said that he did not see appellant on the night of the murders until 1:00 or 2:00 a.m. Phinney testified that the period in question was blurred by a lifestyle of drugs.
During Detective Comstock’s first telephone interview of Traci Minium on April 25, 2002, Minium said appellant told her he “killed somebody” and she thought appellant said that he shot the person. Detective Comstock’s notes of the conversation, however, reflect that Minium said he shot “them.” In the second in-person interview on March 8, 2003, Minium told Detective Comstock that appellant said he had a gun and shot someone. During another telephone interview, Minium said she was not sure whether appellant referred to one or more victims.
Rebuttal Case
When Detective Davis interviewed appellant’s grandmother on July 17, 2003, she said that she had seen appellant within one or two days of the riots, but did not remember which day. She did not mention that she had seen appellant on television. She also said that appellant’s girlfriend was a blonde Caucasian female.
Detective Davis also interviewed appellant’s aunt on July 17, 2003 at her home in Las Vegas. She said that to the best of her recollection the incident where she saw appellant with a beer was within a week of the riots. When Detective Davis interviewed appellant later that month, appellant admitted he had spoken to Eddie Wormwood, who was unable to provide an alibi.
Detective Davis opined that the crime scene was inconsistent with a burglary as burglars are generally nonconfrontational and would at most have “done something to the first person” and fled. Because the victims were killed in two different places in the home and there was reloading of the gun and an obvious pursuit of the second victim, the crime was more than just a burglary gone awry. Detective Davis also observed that Rosalyn’s account of how Monique ordered the victim to put the babies back into the crib before shooting the victim was inconsistent with the fact that Junco’s blood was found on the baby. The blood on the baby appeared to have been transferred to it when Junco was shot. The jewelry found inside Mayda’s purse was also inconsistent with a burglary.
When defense investigator Audrey Ward interviewed Rosalyn and Reneece in May and August 2005, neither one mentioned Monique’s confession. When she interviewed Eddie Wormwood on May 18, 2005, he said he learned of appellant’s arrest the prior day.
Los Angeles County Sheriff’s Department Sergeant William Marsh, an expert in firearms, testified that the murder weapon was a .357-caliber Smith and Wesson revolver with the heaviest frame made at the time and that it could fire both .357-and .38-caliber bullets. If more than six shots were fired, the gun would have to be reloaded, which would include manual ejection of the cartridges and require sophistication and knowledge of the weapon. He explained that loading the murder weapon usually required two hands and was not an easy task. The gun could be loaded with a speed loader, which required skill, or each bullet could be loaded by hand. It would be an “extreme challenge” for someone without firearms training to move around and reload at the same time. The trigger of the murder weapon required ten and a half pounds of pressure to pull. The task of shooting and reloading would be made more cumbersome if the shooter were using gloves.
Surrebuttal Case
Forensic firearms examiner Patricia Fant, a former firearms expert with the Los Angeles County Sheriff’s Department, demonstrated how to eject cartridges and load the murder weapon. She testified that most people of normal intelligence and reasonable physical dexterity can open the cylinder to load the revolver. She also testified that it was misleading to assign weight to a trigger pull because the mechanism of the firearm actually assists the user’s finger. When the murder weapon is shot in single action, the trigger pull is even lighter, just 3.5 pounds. It is not unusual to hit a target 12 to 13 feet away if the shooter holds the gun steady and does not flinch.
DISCUSSION
I. EVIDENCE OF MAYDA’S FEAR OF APPELLANT
Over defense objection, the trial court allowed the prosecution to introduce evidence that approximately two weeks before her death, Mayda expressed fear of appellant to her family while they were out walking in the neighborhood. This evidence was presented through the testimony of Mayda’s children Cynthia and Ricardo and Ricardo’s then girlfriend (now wife), who were with Mayda at the time they saw appellant and a blonde woman exit the garage of his mother’s residence. The trial court concluded that such evidence was admissible to show the victim’s state of mind pursuant to Evidence Code section 1250, and instructed the jury to consider the evidence on that limited basis. Appellant contends the trial court’s ruling was erroneous because Mayda’s state of mind was not at issue and because the evidence was highly prejudicial. The trial court’s evidentiary rulings are reviewed for abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586.)
Pursuant to Evidence Code section 1250, hearsay statements of a declarant’s then existing state of mind or feelings are admissible under two circumstances—when the declarant’s state of mind is “an issue in the action” or the statements are “offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250, subds. (a)(1) & (2).) The People argue that the evidence was admissible because it was relevant to show that appellant had been away from the neighborhood “for such a long period of time that his sudden presence in the area caused an emotional stir in Mayda,” and that this fact was important because appellant’s sudden return coincided with the occurrence of the murders.
“‘As our cases have made clear, “a victim’s out-of-court statements of fear of an accused are admissible under [Evidence Code] section 1250 only when the victim’s conduct in conformity with that fear is in dispute. Absent such dispute, the statements are irrelevant. [Citations.]”’” (People v. Jablonski (2006) 37 Cal.4th 774, 819 citing People v. Ruiz (1988) 44 Cal.3d 589, 608.) “A prerequisite to this exception to the hearsay rule is that the declarant’s mental state or conduct be factually relevant.” (People v. Hernandez (2003) 30 Cal.4th 835, 872.) Thus, a victim’s expressed fear of the defendant may be relevant to the issue of whether she engaged in consensual sexual intercourse with the defendant where a rape-murder special circumstance is alleged (People v. Thompson (1988) 45 Cal.3d 86, 103–104) or consented to the defendant’s entry into her residence where burglary and robbery special circumstances were alleged. (People v. Waidla (2000) 22 Cal.4th 690, 723). Here, neither Mayda’s state of mind nor her conduct were disputed or relevant issues in the case. Thus, the evidence was improperly admitted under Evidence Code section 1250.
The People alternatively argue that the evidence Mayda was frightened of appellant had a nonhearsay purpose because it was relevant to “reinforce the reliability of the family members’ recollection about when they saw appellant in the neighborhood.” In isolation, a sighting of appellant would not necessarily be an event likely remembered years or even weeks later. But we agree with the People that the testimony that Mayda had expressed her fear of appellant would tend to bolster the credibility of her family members that they were present with her and saw appellant a few weeks prior to the murders. To the extent the evidence was admitted for this nonhearsay purpose, it was admissible. (People v. Neely (1958) 163 Cal.App.2d 289, 306 [the general rule is that the witness may on direct examination state the particular circumstances which legitimately affected his knowledge or recollection, even though the fact would otherwise be inadmissible].)
Even if this were not the case, any error in admission was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Without this evidence, the jury still could have easily inferred that Mayda would be afraid of appellant after her testimony had contributed to his conviction for burglary and commitment to the CYA.
Moreover, the evidence of appellant’s guilt was substantial. Appellant, not his sister Monique, had a motive to kill Mayda in retaliation for her prior testimony against him. He was also a drug addict whose judgment could be impaired due to his drug usage. He had access to his father’s revolver and the physical strength to fire the gun and reload it in between shooting victims. Appellant also had the opportunity to commit the murders. His friend Jason Phinney placed him in the area on the night of the murders. Monique also testified that she saw appellant the day of the murders. The testimony of appellant’s alibi witnesses, who were all his relatives, lacked credibility and was impeached by the prosecution. Appellant’s admission to Traci Minium years after the murders was especially compelling. Minium, who worked for the Department of Homeland Security, was a credible witness with no motive to lie. The efforts of the defense to impeach her testimony by suggesting that she could not recall whether appellant confessed to shooting one or more victims overlooked the fact that she said he shot “them” in her first police interview.
Furthermore, the claim by the defense that Monique had confessed to her cousin Rosalyn was wholly unbelievable. For one thing, the details of the alleged confession were simply not true. Three people were not killed, as Monique allegedly claimed. Nor was the story consistent with a burglary gone awry. It would have been apparent to Monique that Mayda, who worked from home and had a live-in housekeeper and whose car was parked in the driveway, was in fact home that day. It is not believable that Monique would have attempted a burglary under those circumstances. The claim that Monique had committed the murders while wearing her father’s uniform was undermined by the testimony of her mother that she had already thrown away the uniform. Rosalyn’s credibility was further undermined by the facts that she selected a supposed triple murderer over her own sister to be a godmother to her child and she did not speak of the confession to anyone outside the family until she became convinced of Monique’s immunity from prosecution.
Finally, the facts relating to Mayda’s car further confirm appellant’s involvement in the murders. There was substantial evidence that appellant had a history of switching license plates on cars and using fraudulent credit cards to make purchases at gasoline stations. This was exactly what happened to Mayda’s car and her daughter’s credit card the day of the murders. Thus, even if Monique was involved in the taking of Mayda’s car and the switching of license plates, appellant cannot escape his involvement in the murders.
II. THE TRIAL COURT’S INSTRUCTION THAT MONIQUE COULD NOT BE PROSECUTED FOR THE MURDERS
Prior to trial, the prosecution sought to introduce evidence that Monique could not be legally prosecuted for the murders, arguing that under the law as it existed in 1992 neither the juvenile nor adult courts had jurisdiction over her. The prosecution proffered that such evidence would allow the inference that appellant’s aunt and uncle, who were both criminal defense attorneys, had discovered that Monique was immune from prosecution and would therefore explain why appellant’s family was placing the blame on Monique. The defense objected, arguing that a juvenile court still had jurisdiction over Monique, though the penalties it could prescribe were limited. The defense agreed that Monique could not be prosecuted, but for a different reason—because she had been granted immunity during the grand jury proceeding.
After hearing argument, the trial court concluded that Monique was not subject to criminal prosecution. Before her testimony, the court instructed the jury as follows: “Monique Snowden was 14 years of age in 1992 at the time of the two murders. Due to the state of the law as existed at that time, Monique Snowden cannot be prosecuted in either adult or juvenile courts or—since the court lacks jurisdiction. I will repeat it. She cannot be prosecuted in either adult or juvenile court as each lacks jurisdiction. This was also the state of the law when the case against the defendant was filed in December 2003. Everyone understand that instruction? You must accept my instructions of the law as the law of this case.”
After all the evidence was presented, the trial court instructed the jury as follows: “There has been evidence presented in this case that Monique Snowden may be responsible for the murders of Mayda Porras and Anna Junco. [¶] You have also heard evidence that Monique Snowden was given immunity in exchange for her testimony against [appellant]. Specifically, you have heard evidence that Monique Snowden was told that her testimony would not be used to prosecute her. [¶] This occurred before the court’s determination that Monique Snowden could not be prosecuted in this case due to the law that was in effect at the time of the murders. In evaluating the credibility of Monique Snowden’s testimony you may consider her grant of immunity. [¶] You have also heard evidence that other witnesses had knowledge of Monique Snowden’s grant of immunity. In evaluating the credibility of such witnesses, you may consider their knowledge or belief that Monique Snowden could not be prosecuted for these murders. [¶] However, you are not to consider evidence that Monique Snowden was granted immunity or cannot be prosecuted as evidence of the defendant’s guilt. [¶] Your sole duty as jurors in this case is to decide whether the People have proved the guilt of [appellant], and you must do so without concern or speculation about the fate of any other person.”
Appellant contends that the trial court’s instruction that Monique could not be prosecuted was legally incorrect because there is no statute of limitations for murder, that the instruction was legally irrelevant because punishment of others is not an issue to be considered by a jury, and that he was prejudiced by the instruction because it left jurors with the impression that if they did not convict appellant the murders would go unpunished.
The People submit that we need not resolve the issue of whether the trial court’s instruction to the jury that Monique could not be prosecuted in juvenile court was legally incorrect. We agree because the error, if any, was harmless.
The defense took the position that Monique could not be prosecuted for the murders because the prosecutor gave her immunity during the grand jury proceedings. The defense played for the jury the tape-recorded conversation between Monique and Deputy District Attorney John Monaghan, in which Monaghan stated to Monique: “If you feel that any of the answers will incriminate you, we’ll give you immunity. . . . [¶] . . . [¶] We give you what is called use immunity . . . . [¶] . . . [¶] . . . So, if you feel questions along those lines would in some way incriminate you, you are entitled to take the Fifth and we will give you immunity. . . . What the immunity means is this: Anything you say cannot be used against you in any kind of criminal proceeding. There is one caveat that if you lie after you are given immunity, you could be prosecuted for perjury.” During the grand jury proceedings, Monique did plead the Fifth Amendment and Monaghan granted her immunity.
We agree with the People that given the evidence of a grant of immunity, any inclination on the part of the jury to hold appellant responsible for Monique’s crimes simply because Monique could not be criminally punished existed with or without the court’s instruction. By focusing on such evidence, the defense was able to impeach Monique’s credibility. More damaging to appellant’s defense than the state of the law on Monique’s criminal liability was what witnesses believed was the state of the law. Monique’s cousins Rosalyn and Reneece, who attested to Monique’s alleged confession, admitted that they only came forward with the confession after they formed the belief that Monique could not be criminally prosecuted. Such powerful impeaching evidence by itself would have carried great impact even without the instruction in question. Moreover, the trial court properly instructed the jury that while it could consider the evidence that Monique was granted immunity for purposes of evaluating her credibility, it could not treat the evidence as evidence of the defendant’s guilt. The jury is presumed to have understood and followed the court’s charge. (People v. Stitely (2005) 35 Cal.4th 514, 519.) Under these circumstances, any error in the court’s instruction was harmless.
III. EVIDENCE OF PRIOR BAD ACTS
Over defense objection, the trial court allowed the prosecution to introduce evidence of certain prior bad acts of appellant pursuant to Evidence Code section 1101. Appellant argues the evidence had no relevance other than to show his propensity to commit the murders, and therefore the trial court abused its discretion in admitting the evidence.
Evidence Code section 1101 provides in relevant part: “(a) . . . evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
A. Stolen Credit Cards and Switched License Plates
The trial court allowed the prosecution to introduce evidence that in 1991 when appellant was arrested in a motel room along with others, stolen credit cards were found on his person and a salvaged license plate was in the room. Appellant complains there was no evidence that he was an active participant in any crime, but he overlooks the fact that stolen credit cards were found on his person. Appellant also admitted to the arresting officer that he once used a fake license plate when buying gasoline.
While Evidence Code section 1101 excludes prior bad acts when offered to show propensity, it permits such evidence when relevant to prove modus operandi and identity. (People v. Matson (1974) 13 Cal.3d 35, 40 [evidence of uncharged offenses is ordinarily admissible if it discloses a distinctive modus operandi common both to the charged and uncharged offenses].) The evidence was relevant for this purpose. Mayda’s car was recovered with a Nevada license plate from appellant’s parents’ defunct business, and a credit card belonging to Mayda’s daughter had been used to purchase gasoline the day of the murders in Long Beach. Appellant claims that placing a stolen license plate on a car when using a stolen credit card to purchase gas was not an unusual occurrence in 1991 when gas station attendants used to record license plate numbers on credit card slips. Even assuming appellant’s assertion is correct, his argument goes to the weight of the evidence, not its admissibility.
Moreover, any error in admitting evidence of the stolen credit cards in the motel room incident was harmless. The jury had already heard testimony from appellant’s friend, Jason Phinney, that appellant switched license plates on cars and used stolen credit cards to buy gasoline. Thus, even without the evidence in question, there was no reasonable probability of a different outcome. (People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Burglary of the Holmen Residence
Appellant complains that the trial court should not have allowed the prosecution to present evidence of a 1984 burglary of the Holmen residence in Shadow Park. Ms. Holmen testified that in May 1984 her home in Shadow Park was burglarized twice in one week during the lunch hours. The first time her son’s skateboard and a five-gallon water bottle filled with coins were taken. The second time she observed a broken window, and some silver, money and a radio were taken. She called the police after the second incident and observed an officer dusting her back window for fingerprints and lift a print off the window. Appellant was an acquaintance of her son. Though she testified that she later learned appellant committed the burglary, the court struck this testimony.
Appellant argues that evidence he committed a minor burglary eight years before the murders had no bearing on who killed Mayda and Junco other than to suggest that because he committed earlier bad acts he must also have done this bad act. The People argue the evidence did not serve the purpose of showing that appellant had the propensity to commit the instant crimes, but of rebutting any undue emphasis by the defense on the fact that no fingerprint evidence was found to link him to the murder crime scene. The prosecution offered the evidence to show that because appellant was apprehended for the burglary at the Holmen residence through fingerprint evidence, he would have learned to not leave his fingerprints at crime scenes, thus explaining the absence of his fingerprints at the Porras residence. The evidence was properly admitted for this reason.
C. Appellant’s Father’s Stolen Guns
Appellant complains that the trial court should not have allowed the prosecution to introduce evidence that he stole two of his father’s guns and sold them for marijuana and cash in 1993. He argues this evidence had no relevance to the issue of who committed the murders and simply portrayed him as a bad person. The People counter that the evidence was properly admitted because it showed that appellant had access to his mother’s house and his father’s guns, including the murder weapon. We agree that the evidence was admissible on this limited basis.
D. Appellant’s Use of Drugs
Appellant complains that the trial court erred in admitting evidence that he was a drug addict. Specifically, appellant complains that the prosecution should not have been allowed to play Detective Davis’s tape-recorded interview of him in August 2002, when appellant claimed that at the time of the murders he was “strung out on crack” in Las Vegas.
Appellant points out that “evidence of an accused’s narcotics addiction is inadmissible where it ‘tends only remotely or to an insignificant degree to prove a material fact in the case . . . .’” (People v. Cardenas (1982) 31 Cal.3d 897, 906.) But the prosecution offered the evidence for two reasons. First, appellant’s drug addiction was probative to explain why he waited so many years to exact vengeance on Mayda for testifying against him during the juvenile proceeding—i.e., he committed the murders because his judgment was impaired by drugs. Second, the evidence was used to show that appellant provided a false alibi. At the same time appellant told Detective Davis that he was strung out on drugs, he also claimed that he was selling drugs for gang members he had just met in jail: “[R]emember I was on drugs at the time. I was—I was doing drugs, dealing drugs back and forth to support my habit, . . . .” The prosecution sought to disprove appellant’s alibi to show consciousness of guilt. (See People v. Vu (2006) 143 Cal.App.4th 1009, 1029 [false alibi as consciousness of guilt evidence].) Thus, even if the trial court erred in allowing the prosecution to present and argue evidence of drug addiction as relating to motive, the error was harmless because the evidence was properly admitted as part of the prosecution’s attack on appellant’s false alibi.
IV. OTHER EVIDENTIARY ISSUES
Appellant contends the trial court erroneously allowed the prosecution to admit and argue several pieces of evidence that were irrelevant under Evidence Code section 210 and prejudicial under Evidence Code section 352. Appellant correctly acknowledges that the trial court’s rulings on the admission of evidence constitute an abuse of discretion only if the “‘“court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’” (People v. Ochoa (2001) 26 Cal.4th 398, 437–438.) We find no miscarriage of justice here.
Evidence Code section 210 states: “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”
Evidence Code section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
A. Gang Evidence
In appellant’s prearrest interview with Detective Davis, appellant claimed that at the time of the murders he was a drug addict living in Las Vegas, selling drugs for the gang Hard Time Hustlers and “hanging out” with Hustler members DeeDee Wack and Half Breed. Over defense objection, the prosecution presented the testimony of a gang expert, Los Angeles County Sheriff’s Deputy David Carver, who testified that the Hard Time Hustlers was a Los Angeles street gang, that there were no current gang members with the monikers DeeDee Wack or Half Breed in the California gang database, that street gangs operated the same way in Los Angeles as in Las Vegas, and that gangs would not allow a nongang member to deal drugs for the gang, especially if the person was a drug addict. Appellant does not challenge Deputy Carver’s testimony that street gangs would not permit a new acquaintance to sell drugs for the gang, but does challenge the unidentified “plethora of evidence related to gangs in Los Angeles County.”
Contrary to appellant’s assertion that the issue of African-American street gangs in Los Angeles took center stage at trial, Detective Carver’s direct testimony consisted of less than 20 pages out of 18 volumes of reporter’s transcripts. His testimony impeached appellant’s alibi and was evidence of consciousness of guilt. It was therefore relevant and properly admitted.
B. Blonde Women
Before trial the prosecution sought to introduce evidence that appellant liked to date blonde women and kept numerous photographs of blonde women in a rented storage locker. The prosecution believed that appellant was with a blonde woman who used Cynthia Porras’s credit card to purchase gasoline in Long Beach on the day of the murders. Ultimately, the gas station attendant did not identify the woman at trial and the photographs were not admitted. The evidence that appellant liked to date blonde women was introduced through the testimony of appellant’s sister Monique and his friend Jason Phinney and through Detective Comstock’s description of the photographs.
Appellant complains the evidence that he liked to date blonde women was irrelevant and even harmful because “the specter of a black man dating white women allowed the prosecution to imbue the trial with an unnecessary focus on race.” Although the prosecution’s plan to present evidence that the Long Beach transaction involved a blonde woman did not materialize, the evidence that appellant liked to date blonde women was still relevant. Jason Phinney testified that on the night of the murders he saw appellant with a blonde woman. Thus, the evidence was relevant to corroborate his credibility. (See People v. Jackson (1991) 235 Cal.App.3d 1670, 1680–1681.) Additionally, we do not find evidence that an African-American man liked to date Caucasian blonde women to be particularly prejudicial in this day and age in Los Angeles County.
C. Using a Gun Under Stress
Over defense objection, the prosecution presented the testimony of a firearms expert, Sergeant William Marsh, about the difficulty of using, loading and shooting a gun under stress. Appellant contends that Sergeant Marsh’s testimony was prejudicial because he was allowed “to recount dramatic experiences involving ‘bad guys’ exchanging gunfire with police officers” and that “most jurors listening to his stories would envision the ‘bad guy’ as a male adult, perhaps a black man like appellant, rather than a 14-year-old female like the alternate suspect, Monique Snowden.” But we have reviewed Sergeant Marsh’s direct testimony and we do not find it to include dramatic stories about police shootouts. To the contrary, the majority of his testimony was focused on the firing and loading of a gun like the murder weapon. Thus, we find no merit to appellant’s contention.
D. Public Defender Aunt
Prior to trial, defense counsel, a female deputy public defender, expressed concern that because the prosecution was claiming that appellant’s aunt was involved in the fabrication of Monique’s confession, any mention that this aunt was also a deputy public defender would reflect poorly on defense counsel. The prosecution agreed to refer to the aunt simply as a criminal defense attorney. During her direct examination by the prosecution, appellant’s mother volunteered that the aunt was a public defender. The trial court let the testimony stand and, with its own further questioning, clarified that the aunt was indeed a public defender. The defense then moved for a mistrial, which the court denied after indicating that it may have “fall[en] asleep at the switch.”
Appellant does not claim that the trial court’s admission of this evidence, by itself, was prejudicial error, only that it was part of a pattern of improper rulings that cumulatively contributed to the verdicts. But we do not find a pattern of improper rulings by the trial court. Moreover, we do not find the evidence to be unduly prejudicial. It is pure speculation to think that jurors would infer that because appellant’s counsel was a public defender like his aunt, then his counsel also must be unethical. Such an inference was no more likely than if the aunt had simply been referred to as a criminal defense attorney.
E. Overruling Defense Objections
Appellant complains that over defense objections of relevancy the trial court allowed the prosecution to present the testimony of family and friends of the victims whose only function was to engender sympathy for the victims and make it more likely that the jury would convict appellant rather than leave the families’ grief unresolved. The People counter by identifying the evidentiary relevance for each item of evidence cited by appellant: Testimony that Junco had a boyfriend she was planning to marry tended to exclude the possibility that she committed a murder-suicide; testimony that Mayda had been married for 30 years before divorcing and that she and her ex-husband had an amicable divorce and continued to have contact and share family celebrations tended to exclude the ex-husband as a suspect; testimony that Mayda had an accounting business and mostly spent time at home with her family undermined the defense claim that Monique had confessed to burglarizing the Porras residence and was surprised to find someone home; finally, testimony that Cynthia Porras and appellant played together as children and that the Flicks arranged to clean the Porras house after the murders was simply background information that did not help or hurt either party. We therefore find no merit to appellant’s argument.
F. Sustaining Prosecution Objections
Appellant next complains that the trial court erroneously sustained prosecution objections to defense questions of prosecution witnesses.
Appellant first complains that the trial court should not have sustained an objection to defense counsel’s question of the medical examiner of whether it was “possible” that Junco had been shot six times. But the question was unnecessary because the medical examiner had already testified on direct examination that Junco had been shot “at least” six times and possibly as many as nine times. Moreover, whether Junco was shot six times or nine times, the murder weapon would still have had to be reloaded because it could only hold six bullets and the evidence showed that Mayda was shot three times.
Appellant next complains that the trial court should not have sustained an objection to defense counsel’s question to Monique about whether it was “a daring thing” to steal her mother’s car at the age of 15 to drive to a party. Monique had already testified that it was an “exciting thing” to do and whether it was also a daring thing to do was not relevant. Appellant also claims that the trial court should not have sustained an objection to the defense question to Monique of whether putting California tags on a Nevada license plate was a mistake a 14-year-old would make. But the full question by defense counsel was unclear: “And do you remember Detective Comstock or Mr. Monaghan or anyone pointing out to you that that was—that’s sort of a mistake. Putting California tabs on a Nevada license plate is the kind of mistake that would have been made by somebody that was about your age at the time of the murders?” Before the objection could be sustained and her answer stricken, Monique responded “No.” The question is confusing as phrased because it is unclear whether defense counsel was asking Monique whether she remembered such a statement by the detective or the deputy district attorney or whether she thought that was a mistake that would be made by a 14-year-old, as appellant seems to think. In any event, the relevance of the question is not clear and therefore the objection does not appear to be erroneous.
Finally, appellant complains that defense counsel should have been allowed to ask appellant’s mother about recent incidents where Monique, as an adult, had lied to her mother. The trial court found that such evidence would be confusing to the jury and prejudicial because Monique might have good reasons for lying to her mother about present situations. Furthermore, the defense had already presented evidence that around the time of the murders Monique had stolen from both the housekeeper and her mother and that she was not a truthful person. We find no abuse of discretion in the court’s ruling.
G. The Murder Weapon
During the testimony of a firearms expert in the prosecution’s case-in-chief, the murder weapon was passed around the jurors so that they could get a sense of the gun’s heft. The prosecution later presented the testimony of another firearms expert in its rebuttal case who testified about the weight of the trigger pull and the skill required to load and reload bullets into the murder weapon. In surrebuttal, the defense presented its own firearms expert. During this testimony, the defense requested that the jurors be allowed to hold the murder weapon, squeeze the trigger and load dummy bullets into its cylinder. The trial court denied the request on the grounds that it would be confusing, misleading and prejudicial because the circumstances of sitting in a jury box and calmly pulling the trigger would be entirely different than those actually experienced by the killer committing the murders. The trial court also denied the defense request to remove the plastic safety tie on the cylinder so that its expert could pull the trigger.
Appellant contends the trial court erred in not allowing the jurors to test the trigger pull. We disagree. As the trial court correctly noted, the circumstances would not be the same or even similar to those actually experienced by the killer. The jury would not be under the stress of having to hold, aim, trigger, fire, refire and reload the gun during the killing and pursuit of two victims during daylight hours in a house where two babies were also present. We agree that such a demonstration would be misleading and potentially prejudicial. Moreover, the jury heard enough information about the murder weapon from the parties’ conflicting experts so as to be able to render an informed decision on the real point of contention, namely, the difficulty of reloading the weapon.
Additionally, to the extent appellant is also complaining that his expert should have been allowed to remove the safety tie and pull the trigger, such a demonstration posed the same problems as having the jurors pull the trigger in that it did not accurately reflect the stress of the situation during the murders. We find no abuse of discretion in the trial court’s rulings.
H. Tour of Shadow Park
Prior to trial, the parties agreed to have the jurors view certain areas of Shadow Park, including the Porras, Snowden and Flick residences and the location where Mayda’s car was recovered. During the trial, the defense changed course and objected to the viewing primarily on the ground that the trial was already taking too long. The trial court initially agreed that a jury view was unnecessary, but then decided that such a viewing might keep the jurors interested. The viewing took place by bus one morning and appears to have lasted no more than two hours. The jurors did not enter any residences.
Penal Code section 1119 provides in relevant part: “When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, . . . it may order the jury to be conducted in a body, in the custody of the sheriff or marshal, as the case may be, to the place, . . . .” The decision whether to permit the jury to view a scene rests in the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Appellant contends the trial court abused its discretion in allowing the jury view because it created a “memorable experience” with the potential to interfere with the jurors’ capacity to focus on and remember details of less entertaining but more relevant evidence. But this argument is entirely speculation. Indeed, the viewing itself was a quick trip. Moreover, while the jury had already seen diagrams and photographs of the area, including aerial photographs, we cannot conclude that the jury view here was an abuse of discretion. As the People note, if anything, the viewing of the shortcut to the park on the street where Mayda’s car was recovered helped the defense by connecting Monique more strongly to Mayda’s car.
V. CALJIC VS. CALCRIM INSTRUCTIONS
Over defense objection, the trial court instructed the jury with CALJIC instructions instead of the more recently approved CALCRIM instructions. Appellant contends this was reversible error. We disagree.
Effective January 1, 2006, the Judicial Council of California withdrew its endorsement of the long-used CALJIC instructions and adopted the new CALCRIM instructions. (People v. Thomas (2007) 150 Cal.App.4th 461, 467 (Thomas).) Rule 2.1050(e) of the California Rules of Court provides that use of the Judicial Council instructions is “strongly encouraged” and “recommended” unless the trial judge finds that a different instruction would more accurately state the law and be understood by jurors.
Appellant does not challenge any of the given instructions as legally inadequate, unclear, confusing, invalid or improper. He merely argues that because he requested the use of the newer CALCRIM instructions, which were already in effect when his trial began in March 2006, the trial court’s refusal to use CALCRIM was reversible error.
We find Thomas to be dispositive. There, a defendant also challenged his murder conviction by claiming that the trial court engaged in structural error in failing to use the newly endorsed CALCRIM instructions. (People v. Thomas, supra, 150 Cal.App.4th at p. 465.) The Thomas court held that, while the newer CALCRIM instructions were preferred and superior to the older CALJIC instructions and probably should have been used by the trial court, the adoption of CALCRIM instructions did not render the CALJIC instructions invalid or outdated. (Thomas at pp. 465–466.) “Because the instructions given were correct statements of the relevant legal principles, the purported error was necessarily harmless.” (Id. at p. 467.) We agree and therefore find no merit to appellant’s contention.
VI. JURY INSTRUCTIONS ON FABRICATION OF EVIDENCE AND ACCOMPLICE LIABILITY
A. Fabrication of Evidence
Appellant contends that the trial court erred in sua sponte instructing the jury with CALJIC Nos. 2.04 and 2.05 regarding fabrication of evidence over defense objection and after the prosecution withdrew its request for the instructions. But appellant cites no authority indicating that it was error for the trial court to sua sponte give these instructions where the evidence warranted such instructions. Here, the evidence supported the instructions. As to whether appellant himself fabricated evidence within the meaning of CALJIC No. 2.04, there was evidence that appellant provided a false alibi to Detective Davis. As to evidence of others fabricating evidence to benefit appellant (CALJIC No. 2.05), there was ample evidence that Monique’s alleged confession to her cousin, which surfaced only after a determination that Monique was immune from prosecution, was fabricated evidence.
CALJIC No. 2.04 provides: “If you find that a defendant attempted to or did persuade a witness to testify falsely or attempted to or did fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide.” CALJIC No. 2.05 provides: “If you find that an effort to procure false or fabricated evidence was made by another person for the defendant’s benefit, you may not consider that effort as tending to show the defendant’s consciousness of guilt unless you also find that the defendant authorized that effort. If you find defendant authorized the effort, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
In any event, the instructions were harmless. As appellant acknowledges, the California Supreme Court approved the use of CALJIC No. 2.04, finding it to be a “common sense” instruction, whose “‘cautionary nature . . . benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.’” (People v. Holloway (2004) 33 Cal.4th 96, 142.) By logical extension, the closely related CALJIC No. 2.05, which also cautions the jury against overreliance on such evidence, is a valid instruction under Holloway. Thus, the instructions could only help the defense by cautioning the jury not to rush to judgment.
B. Accomplice Liability
Over defense objection, the trial court instructed the jury on accomplice liability, including CALJIC No. 3.19, which required the defense to prove that Monique was an accomplice in the crimes charged against appellant. Appellant argues the giving of these instructions was error because the theory of the defense was that Monique acted alone and the theory of the prosecution was that appellant acted alone.
The prosecution requested these instructions, arguing to the court there was substantial evidence to support that Monique was not just a mere accessory, but an accomplice. The prosecution then took a different tack with the jury, arguing that Monique was “not the person who went inside and pulled the trigger and shot these two people to death and reloaded that weapon under stress. Did not happen.” The prosecution then continued that if the jurors thought Monique had some involvement, “the evidence is clear that the [appellant] had to have done so as well.” On appeal, the People argue “the evidence in this case could nonetheless support an inference, tenuous as it may be, that appellant committed the crime[s] and Monique may have helped appellant in some form or fashion.”
Such an inference would indeed be tenuous here. But even assuming the trial court erred in instructing the jury on accomplice liability, we cannot conclude that the error was prejudicial. Whether the jury viewed Monique as entirely uninvolved in the murders or as someone who aided and abetted the crimes, the jury was also instructed that it had to be convinced beyond a reasonable doubt that appellant had committed the crimes. As such, any error was harmless.
VII. SENTENCING ERRORS
Appellant contends the trial court made three sentencing errors. The People concede that two sentencing errors were made, but do not address the third claimed error.
A. Firearm Enhancement
Appellant was convicted of two counts of first degree murder with special circumstances and sentenced to two consecutive sentences of life without the possibility of parole (LWOP). Because the jury also found true as to each count the allegation that appellant personally used a firearm (Pen. Code, § 12022.5, subd. (a)), the trial court imposed two additional terms of ten years for each count, plus another 25 years for each count. Penal Code section 12022.5, subdivision (a) provides that any “person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.” The People acknowledge that the trial court was mistaken in imposing additional terms of 25 years for each count, since such a term is not authorized by statute. The People argue that because the trial court stated that it was imposing 10 years for the firearm enhancement, appellant’s sentence should be the high term of 10 years. Appellant argues that his sentence should be reduced to the middle term of four years. Appellant appears to be correct. “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Pen. Code, § 1170, subd. (b); see also former Cal. Rules of Court, rule 4.420, subds. (a) & (b).) Because the trial court did not make any additional findings at appellant’s trial, the midterm of four years would be the appropriate sentence. Accordingly, the additional sentence of 35 years for each count shall be reduced to the middle term of four years so that the sentence reflects LWOP plus four years for each count.
B. Presentence Conduct Credit
During sentencing the trial court stated twice that appellant was not entitled to any credits, but that if he was, the court would allow him 931 days of time he actually served in custody. Appellant now contends the trial court erred in not awarding him an additional 465 days of good time/work time presentence credit (also known as conduct credit) for a total of 1,396 days. The People do not address this contention. We also note that appellant made no objection below to the denial of conduct credit. However, because waiver of sentencing generally only occurs when the alleged error involved an exercise of discretion, we will address it here. (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.)
Appellant assumes the trial court denied him conduct credit based on current sentencing law, namely, Penal Code section 2933.2, which prohibits murderers from accruing presentence conduct credit. But appellant is correct that this section, by its own terms, applies only to murders committed after the statute’s effective date of June 3, 1998. (Pen. Code, § 2933.2, subd. (d); People v. Hutchins (2001) 90 Cal.App.4th 1308, 1317.) The murders for which appellant was convicted occurred in 1992. Likewise, appellant is correct that his presentence conduct credits cannot be limited by Penal Code section 2933.1, which reduces presentence credit for certain felonies, including murder, to 15 percent of the actual period of confinement, because that statute applies only to offenses that took place after the statute’s effective date of September 21, 1994. (Pen. Code, § 2933.1, subd. (d); People v. Cooper (2002) 27 Cal.4th 38, 43.)
Penal Code section 2933.2 provides in relevant part: “(a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933. [¶] . . . [¶] (c) Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest for any person specified in subdivision (a). [¶] (d) This section shall only apply to murder that is committed on or after the date on which this section becomes operative.”
Penal Code section 2933.1 provides in relevant part: “(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. [¶] . . . [¶] (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a). [¶] (d) This section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative.”
Appellant’s presentence credit is therefore controlled by Penal Code section 4019, which allows him two days of conduct credit for every four days of custody. (People v. Smith (1989) 211 Cal.App.3d 523, 527.) Appellant presents the following mathematical calculation: 931 days of actual custody divided by 4, which equals 232.75, which is then multiplied by two for a total of 465.5 days. Because there is nothing in the record or the probation report to indicate that appellant should not earn good time or work time credits, he is entitled to an additional 465 days of presentence credit.
Penal Code section 4019 provides in relevant part: “(b) . . . for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] (c) For each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.”
C. Parole Revocation Fine
The trial court imposed a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (f)) and a $10,000 parole revocation fine (Pen. Code, § 1202.45), which was stayed pending successful completion of parole. The People concede, and we agree, that because appellant received a sentence of LWOP, no parole revocation fine could be imposed. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181–1183; People v. Petznick (2003) 114 Cal.App.4th 663, 687.) Accordingly, that portion of the court’s judgment imposing a parole revocation fine shall be stricken.
DISPOSITION
The judgment is modified as follows: The parole revocation fine of $10,000 is stricken; the additional terms of 35 years for each count on the firearm enhancements is reduced to four years per count; and appellant shall be awarded additional conduct credit of 465 days. The trial court is directed to amend the abstract of judgment to reflect these modifications and to forward certified copies of the amended abstracts to the Department of Corrections. (Pen. Code, §§ 1213, 1216.) The judgment is affirmed as modified.
We concur: BOREN, P. J.,CHAVEZ, J.