Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6254367
SIMS, Acting P. J.Escalating tensions over a boundary dispute ended with Lawrence Ficarra lying dead of gunshot wounds in the road between his property and that belonging to defendant Gary Allen Bortis. There was no question that Bortis was the person who shot Ficarra. Instead, the principal issue for the charge of murder concerned whether Bortis shot Ficarra in defense of his
PLEASE SEE ATTACHED CONCURRING AND DISSENTING OPINION
live-in girlfriend, defendant Maryanne Stein. On trial at the same time, Stein defended against the charge of being an accessory after the fact to Ficarra’s murder. Stein contested the prosecution’s argument that she was an accessory due to her concealment of the murder weapon after the shooting and due to her fabrication of a story that Ficarra was shot only after he started to strangle her.
A jury convicted Bortis of first degree murder and found that he personally and intentionally discharged the firearm causing the death. (Pen. Code, §§ 187, 12022.53, subd. (d).) The jury also convicted him of eight counts of possessing illegal weapons. Stein was convicted of being an accessory after the fact to Ficarra’s murder. (§ 32.)
Undesignated statutory references are to the Penal Code.
We agree with the trial court that there was insufficient evidence to warrant an instruction on voluntary manslaughter based on heat of passion. Bortis does not argue to the contrary.
The court instructed the jury with CALCRIM No. 220 in pertinent part as follows: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.”
We recognize this statement applies provided the reasonable probability standard is met. (Breverman, supra, 19 Cal.4th at pp. 177-179.)
On appeal, Bortis contends the trial court erred by (1) failing to instruct regarding voluntary manslaughter based on imperfect defense of another, (2) denying his motion to suppress the evidence of the numerous guns discovered by the deputies during a protective sweep of Bortis’s house, (3) allowing the evidence of guns not used in the shooting of Ficarra to be considered in connection with the murder charge, (3) instructing the jury with CALCRIM No. 224; and (4) ordering two trial recesses of 10 days each.
Stein also appeals, contending (1) the evidence was insufficient to convict her of being an accessory to murder, and (2) the trial court erroneously used elements of her accessory offense to deny her request for probation.
We shall affirm the convictions for Bortis and Stein in addition to the trial court’s denial of probation for Stein. However, we shall order Stein’s judgment modified to credit her with four days of custody credit to which she is entitled under section 4019, subdivisions (b) and (c).
FACTUAL AND PROCEDURAL HISTORY
Property Dispute
At trial, the prosecution argued that Bortis murdered Ficarra in the first degree upon premeditation, or, at a minimum, in the second degree upon provocation. To this end, the prosecution introduced evidence showing that Bortis and Stein, both of whom were school bus drivers, had lived on Boone Lane in Loomis since 2002.
Boone Lane is a dirt-gravel road on which there are seven or eight houses. In January 2005, Ficarra purchased a nearly three-acre parcel that abutted Boone Lane. Ficarra intended to subdivide his property and sell the parcels. Ficarra’s property had two access routes: Saunders Avenue and Boone Lane.
Shortly after Ficarra bought his property, Bortis informed him that Boone Lane crossed about 10 feet onto Bortis’s property. Over the ensuing months, the effect of Bortis’s boundary claim on Ficarra’s access along Boone Lane led to many arguments between the two men. Some of these altercations resulted in law enforcement intervention.
Two incidents drawing law enforcement response occurred on April 29 and 30, 2005. In the first incident, Bortis and Stein attempted to drive across Ficarra’s parcel using a purported easement. Ficarra stood in their way while directing a business associate who was visiting him, Steve Dahle, to drive Ficarra’s vehicle toward the defendants’ vehicle. Defendants claimed that Dahle hit them; Dahle maintained he only blocked them; the independent evidence favored Dahle.
In the second incident, on April 30, 2005, Ficarra pulled out a fence post that Bortis had placed, and threatened Stein with a hammer.
Shooting
The following seven persons were the pivotal witnesses regarding the shooting, which occurred around 6:25 p.m. on September 8, 2005: Deborah Mendocino, a coworker and friend of the defendants; Amanda Davis and Tracy Baker, who lived together on Boone Lane and were neighbors of Ficarra and defendants; the two defendants themselves; and Deputies Christina Woo and Trek Sinclair, who initially responded to the shooting. We will take these persons in order.
Mendocino visited with defendants after work on their porch but left just before the shooting occurred. She was privy, however, to the following: Bortis mentioned to her that he was being harassed by a neighbor (Ficarra); and he showed her a handgun he had lodged in the back of his pants, saying he carried it “to help protect [Stein and him]” from Ficarra.
Mendocino also saw Ficarra park in a carport on Boone Lane across the street, get out, grab an orange cone (of Bortis’s) from the middle of the road, and throw it. This led to a verbal spat between Ficarra and Bortis about Ficarra lacking permission to be on the property. It was at this point that Mendocino received a call from her family and left. Stein claimed that Ficarra blocked Mendocino’s exit, but Mendocino testified otherwise.
Shortly before the shooting, Ficarra had gone to Davis’s and Baker’s home to talk to Baker. When Davis told Ficarra that Baker was not home, Ficarra sped away toward Bortis’s house. Davis saw Ficarra throw the cone toward Bortis’s driveway. Davis then walked toward the defendants’ home to make sure they were okay; they had a visitor who was just leaving (i.e., Mendocino). Davis and Baker had their own property dispute with Ficarra; Davis knew Ficarra was aggressive and caused problems.
When Davis saw Ficarra approaching her and defendants on foot, she ran behind defendants’ house to avoid him. While behind the house, Davis called Baker on a cell phone. Baker was on her way home from work. As Davis and Baker chatted over the phone for several minutes, Davis heard male voices yelling obscenities out front and saying something about money. Davis later heard a quick succession of gunshots and heard Bortis yell, “Call 911.” Davis saw Baker run toward defendants’ driveway, so she came around front and found Bortis and Stein standing next to one another with Ficarra bent over near his opened driver’s door.
For her part, Baker, while driving up Boone Lane, saw Ficarra grab the cone and toss it onto Bortis’s property. As she passed, Bortis smiled and gestured as if to signify that she was a witness to the toss.
Baker drove past, watching the scene unfold in her rear view mirror. She could not hear anything with her windows up and with Davis on the phone, but she could tell that Ficarra was “pissed off” by the way he was gesturing and storming back to his car. Ficarra got into his vehicle. Initially, it looked as if Ficarra was going to leave the area, but then he stopped and turned back toward Baker’s house on Boone Lane.
At this point, Baker was parking in her driveway and getting out of her car (she was about 75 yards away). She saw Stein jump in front of Ficarra’s vehicle as Bortis pointed at a sign that stated: “Access by permission only” Ficarra tried to drive his car around Stein on both sides, but she moved to block him.
Baker then saw Ficarra’s car door open quickly. At this point, Baker reached into her car to grab her purse on the passenger seat; this took about three to five seconds. During this interval, she heard a rapid series of gunshots. Baker emerged from her car to see Bortis standing two to three feet away from Ficarra’s opened driver’s door, holding a gun pointed down at a 45-degree angle. Moving to get a better view, Baker saw Stein standing to the right of Bortis.
Baker ran toward Bortis saying, “What the hell, Gary?” Bortis said, “Call 911.” Ficarra was lying on the ground under the opened driver’s door. Bortis was pacing and had a look of shock on his face. Baker had seen Stein run toward the house and then come out holding a phone. Baker asked Stein if she had called 911. Stein said she had, and pulled down her shirt, saying, “Look, he tried strangling me.” In the past, Bortis had shown Baker a pistol he kept “handy” because Ficarra “scare[d]” him (this pistol resembled the shooting weapon).
Placer County Sheriff’s Deputies Christina Woo and Trek Sinclair initially responded to the shooting. After checking Ficarra and handcuffing Bortis, who acknowledged being the shooter, Woo asked where the gun was. Stein replied, “I’ll show you, ” and led Deputy Sinclair to her and Bortis’s house, where she retrieved the weapon, a 9mm semi-automatic. Stein refused to allow Deputy Sinclair inside.
Investigation
Bortis fired 11 rounds. A shooting expert who test-fired a gun identical to Bortis’s was able to shoot 11 rounds in 3.4 seconds. The gun that Stein had given to the officers was the shooting weapon.
Ficarra had eight entry wounds, in his left arm and left torso. The forensic pathologist who performed Ficarra’s autopsy concluded that at least three of the wounds were inconsistent with Ficarra’s being shot while extending his arms to choke Stein; instead, Ficarra’s left arm was down. The pathologist acknowledged, however, that he could not tell Ficarra’s posture from the wounds alone.
There was no blood found in the vehicle’s interior consistent with Ficarra’s being shot while sitting inside the vehicle. A defense forensic analyst opined that Ficarra was outside the car for at least two of the shots, and probably outside for all. But the lead detective on the case, based on his training and experience with blood spatter evidence, believed that Ficarra was in his vehicle when he was shot.
Evidence showed that Bortis was about six feet away from Ficarra’s vehicle at some point during the shooting.
Throughout the investigation, Stein consistently maintained that Ficarra was choking her when Bortis fired the shots. Investigators were skeptical about the choking because (1) Stein could not clearly articulate where she was when Bortis fired; (2) Stein said that Ficarra was in front of her and Bortis was behind her during the fusillade; (3) investigators could not comprehend how she could have been in such a position yet have escaped without injury or some blood spatter from the shooting; and (4) during questioning Stein continuously rubbed her neck, and her neck injuries were more aggravated on the day after the shooting. Fingernail scrapings taken from Ficarra did not include any foreign DNA.
Five days after the incident, Bortis called Stein from a jailhouse phone. During the recorded conversation, Bortis provided Stein with his view of details about the incident as follows:
“BORTIS:... Okay. You need to call Triple A Insurance, that claim agent.
“STEIN: [Inaudible] Okay that number is two is Triple A?
“BORTIS: Yeah, the one that had the claim agent that.
“STEIN: Yeah.
“BORTIS: the first time he ran into us.
“STEIN: Uh hum.
“BORTIS: Now you get to make another claim. You got to make another claim because he hit you with that car. I saw you buckle when he hit you, Mary Ann, and you, and you, and you looked at me and then you got pissed off and that’s when you got in him.
“STEIN: Oh.
“BORTIS: and you said, “You son of a bitch, ” and that’s the place, and then I..
“STEIN: [Inaudible]
“BORTIS: see he got, well I don’t want to go onto [sic] it right now on the phone.
“STEIN: Yeah, I don’t remember all these, I remember him hitting me.
“BORTIS: He hit you in the, he hit you in the left thigh and it dropped you almost to your knees.
“STEIN: Well I have a, I had a mark on my knee that like I hit the ground.
“BORTIS: Mary Ann, he, listen to me, ..
“STEIN: and then ro- where a rock or something [Inaudible]
“BORTIS: listen to me. You need to go in and have that checked. You got hit in the thigh, and you looked at me and go, “He hit me.” I go, and I was talking into the cell phone like I was on 911.
“STEIN: Uh huh.
“BORTIS: That’s what enraged that S.O.B. because he thought he was done for then. He hit you with the car, okay? I was like, ‘Oh my God. This is..
“STEIN: Yeah, I told the police that and that he hit me, and that the car hit me in the arm with the mirror as well and that then he got out of his car and he said he was going to kill me. [Inaudible] me.
“BORTIS: [Inaudible] no, let me tell you, as you were complying with what I was asking you to do and get out of there.
“STEIN: I told him [Inaudible].
“BORTIS: he came around that’s when he came at me. I backed off and he just swung around a little bit and grabbed you. That was it.
“STEIN: Okay.
“BORTIS: It was like a two-step thing then. Boom boom boom.
“STEIN: They wanted me to fuckin’ draw a map who was there.
“BORTIS: No, fuck the map.
“STEIN: I said, ‘I don’t know.’ I, you know, you’re fuckin’ wanting me to say shit I don’t know..
“BORTIS: It happened
“STEIN: the answer to.
“BORTIS: that’s when I told them, “You know what? It happened in..
“STEIN: So fast.
“BORTIS: 3, 3-1/2 seconds. It was boom.’
“STEIN: And, you know Tracy, she told them everything. She said and then I bent down to get my purse and like the most important 2, 3 seconds it was over. It had already happened.
“BORTIS: That’s exactly, exactly, exactly it.
“STEIN: Yes, and that..
“BORTIS: Okay, stop, stop talking, stop talking.
“STEIN: [Inaudible]
“BORTIS: They’re, they’re recording.”
Guns
In addition to murder, Bortis was convicted of possessing two machine guns, four assault weapons, and armor-piercing ammunition.
In Bortis’s house and storage shed, deputies found these weapons along with a slew of others (in fact, about 50 others scattered throughout the house – mostly rifles and handguns; many of them loaded). Merely listing these weapons takes nearly two pages of double-spaced briefing. Evidence of all these weapons – in the form of photographs, accompanying descriptions, or the possession-charged weapons themselves – was admitted at trial.
Bortis’s Defense
The defense argued that Ficarra had repeatedly threatened Bortis over an increasingly bitter property dispute, and that just before the shooting Ficarra attacked and started to strangle Stein.
Four former neighbors of Ficarra testified about his aggressiveness before he moved to Loomis to become a neighbor of Bortis and Stein.
Jon Sagen had been Ficarra’s neighbor in Aptos. He testified that Ficarra once threatened him after Ficarra took a chain saw into a park, and once threateningly drove a skip loader within a foot of Sagen, telling Sagen, an elderly man, to never put his foot on Ficarra’s property. Sagen was so scared of Ficarra that he borrowed a gun from a friend for protection. Sagen had never had a gun in his house before.
Arlos Anderson had also been Ficarra’s neighbor in Aptos. The two had words about structural irregularities on Ficarra’s property. Ficarra, who said he was a Hell’s Angel, threatened Anderson nearly every day, including with physical harm.
Robert Carmichael had been a neighbor of Ficarra on a lake in Watsonville. While in his competition ski boat, Ficarra would cut in front or run alongside of other boats in a threatening manner. Once, Ficarra drove his boat straight at Carmichael’s boat, turning away only at the last moment; when Carmichael retreated to the dock, Ficarra verbally humiliated him.
Lawrence Lease had been Ficarra’s neighbor in Watsonville and ran a plumbing supply company that Ficarra, a plumbing contractor, used. When Lease informed Ficarra that he no longer wanted Ficarra’s business, Ficarra began threatening Lease as well as Lease’s wife, including at their home. Believing that Ficarra wanted to kill him, Lease obtained a restraining order and, for the first time in his life, began carrying a loaded gun for protection.
Three of Ficarra’s neighbors in Loomis lent their voices to this chorus of fear: Donnie Joe Karr, David Hammond, and Bortis (and they described the plight of a fourth neighbor, an elderly quadriplegic who died before trial, Keith Henry).
When Karr, Hammond, and Keith Henry (the elderly quadriplegic who died before trial) all refused Ficarra’s demands that they remove structures that, according to Ficarra (but disputed by surveys), encroached upon Ficarra’s Loomis property, Ficarra confronted and threatened them.
Bortis testified on his own behalf, explaining that Bortis knew of these confrontations and threats, and had been on the receiving end of this behavior as well. Ficarra had often threatened Bortis, including threatening to kill him. The two had many heated arguments over boundary and easement issues. And twice Ficarra had apparently tried to run down Bortis with vehicles. Bortis began carrying a gun whenever he worked outside or Ficarra was around.
Bortis testified that the events surrounding the shooting started when Ficarra repeatedly lurched toward Stein with his car and then hit the brakes. On the third such lurch, Ficarra grazed Stein on her left hip with his bumper and she “kind of crumbled” but did not fall. Ficarra was screaming at Stein, “I’m going to kill you, you fucking bitch.”
Bortis saw Ficarra’s car door fly open, and, within a second to a second-and-a-half, Ficarra got out of his car and began choking Stein, who was “right there.” Bortis yelled, “Stop!” Bortis estimated that it had taken Ficarra no more than a second and a half to get out of his car and start choking Stein. Bortis then fired the gun toward Ficarra’s mid-section.
After Bortis had fired one or two shots, Ficarra assumed a boxer’s stance toward Bortis. Bortis continued to shoot “[t]rying to stop him.”
The defense called a forensic scientist who testified that the autopsy, bullet trajectories, and deputies’ reports indicated that Ficarra was outside his vehicle when at least some – and probably all – of the shots were fired.
Stein’s Defense
Stein also testified on her own behalf and largely confirmed Bortis’s account of the circumstances of the shooting. She testified that on the day of the shooting she put a traffic cone into Boone Lane to prevent Ficarra from using the road. She did so “[b]ecause I was standing up for what I believed was right.” Stein fell to the ground when Ficarra’s car bumped her. Shortly thereafter, Ficarra exited his car with a “crazy look.” Ficarra grabbed Stein around the neck. Bullets then “whizz[ed] by” her.
Bortis told Stein to put the gun away and call 911. Stein tossed the gun into a planter box as she ran to get a phone. Realizing that a planter box was not a good place to leave the gun, she took it to the laundry room inside the house.
When a Sheriff’s deputy instructed her to get the gun, she went inside the house to retrieve it. The deputy wanted to enter the house, but she refused him permission. However, Stein did not hesitate to retrieve the gun. Stein needed only a short amount of time to retrieve the gun.
Deputies interviewed Stein several times, and she repeatedly told them that she was being strangled immediately before Ficarra was shot. Stein quickly got the sense that the deputies were “done with [her]” because they thought she was lying.
Closing Arguments
In response to a motion by Stein for judgment of acquittal at the close of the evidence, the prosecutor stated: “The direct and circumstantial evidence that has been introduced over the last four weeks proves beyond a reasonable doubt that the defendant, Gary Bortis, murdered the victim, Lawrence Ficarra. That the Codefendant Stein was present and an eyewitness to that occurrence and picked up the murder weapon and ran it into the house and prevented a deputy from going into the house with her to retrieve it. And the compelling and strong inference is that she did so to help her longtime live-in boyfriend, Gary Bortis, avoid arrest, prosecution and conviction for violation of [] section 187 murder.”
During closing arguments, the prosecutor likewise argued that “this claim that Maryanne Stein made that Ficarra leapt out of the car and grabbed her around the throat and strangled her at that time that Ficarra was shot is a lie.” The prosecution emphasized that Tracy Baker, a neighbor who saw most of the confrontation and shooting, testified that “[s]he never saw any contact whatsoever between Lawrence Ficarra and Maryanne Stein.” Instead, the prosecution argued, Stein first concocted the strangling story after the shooting. Bortis quickly adopted the fabrication when they called 911 after the shooting. “Stein tells the dispatcher, ‘He was choking me.’ What does Stein do? She hands the phone to Bortis, and Bortis repeats the same claim right there having heard it from Maryanne Stein.”
Stein’s counsel noted that he anticipated the prosecution to assert a separate basis for the accessory charge based on the concealment of the gun: “And there are two theories that I expect to hear on rebuttal from the prosecution because I didn’t hear them very clearly if at all during his closing argument. [¶] One is that [] Stein takes the gun and puts in into the laundry room versus the kitchen or on the step.” Defense counsel noted that Stein immediately responded to the deputy’s request to produce the weapon by saying, “I’ll show you.”
Thereafter, the prosecution argued: “I believe the first room you come into when you go through that back door is you’re in the kitchen and from there, there’s a laundry room somewhere farther back in there. So the planter box isn’t good enough [for the gun], and the kitchen table isn’t good enough. The kitchen counter isn’t good enough. She goes into the laundry room and for some reason, which I don’t think is adequately explained, she does not want Officer Sinclair to go into that laundry room and see where the gun is. That is not the behavior of someone who is cooperating with the police. [¶] Now, she again acting on impulse and instinct, she decides to, I will say, I will submit to you she’s hiding that murder weapon.”
Again the prosecution emphasized the incredible nature of the strangling story, noting that “Maryanne Stein would have had to come out of that hail of gunfire unscathed. And we’ve seen the – we’ve seen the photos. She’s got the glasses, the necklace, and the earrings, and there’s no blood spatter much less bullet wounds on her. But that’s her story.”
Sentencing
Following their convictions, Bortis was sentenced to a state prison term of just over 56 years-to-life, 50 years of which comprised the first degree murder conviction and the firearm discharge enhancement (each 25-years-to-life). Stein was sentenced to a low term of 16 months in state prison.
Bortis and Stein each timely filed an appeal, which we have consolidated.
DISCUSSION
Bortis’s Appeal
I
Failure to Instruct on Voluntary Manslaughter Based on Imperfect Defense of Another
Bortis contends the trial court erred prejudicially by failing to instruct the jury on the lesser included offense of voluntary manslaughter based on imperfect defense of another –i.e., an actual but unreasonable belief in the need to defend Stein from imminent peril from Ficarra. We agree that the court erred in failing to instruct on voluntary manslaughter, but we find it is not reasonably probable that a result more favorable to Bortis would have occurred in the absence of the error. (People v. Breverman (1998) 19 Cal.4th 142, 149, 154, 162, 178 (Breverman).)
A
We begin by addressing the Attorney General’s argument that any error in the court’s failure to instruct on voluntary manslaughter was invited by Bortis’s counsel.
A trial court’s “‘obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.’” (Breverman, supra, 19 Cal.4th at p. 154.) Even so, “‘“a defendant may not invoke a trial court’s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give the instruction.”’” (People v. Beames (2007) 40 Cal.4th 907, 927.)
As respondent points out, Bortis’s counsel initially argued against giving the instruction on the lesser included offense of voluntary manslaughter based on imperfect defense of another. In so arguing, defense counsel sought to hold the prosecutor to the theory of the case that the prosecutor articulated during his opening statement, namely that Ficarra was shot inside his car in cold-blooded execution-style murder. Defense counsel reasoned that the prosecution’s opening statement allowed only for conviction of an execution-style murder of Ficarra as he sat in his car, or a justifiable homicide based on perfect defense of Stein.
As trial went on, Bortis’s counsel recognized that the prosecution’s evidence suggested Ficarra was outside his car when he was shot. Thus, Bortis’s counsel indicated that instruction on voluntary manslaughter based on imperfect defense of another would be appropriate if the prosecutor were to acknowledge this evidence in his closing argument. Counsel for Stein stated to the court:
“[Defendant Stein’s counsel]: I would suggest we reserve on the manslaughter instructions until we hear the theory and the methodology whereby the prosecution is going to argue [] Bortis’ acts and how they constitute murder, because my concern is he may dance very close to an imperfect self-defense theory which might necessitate the need for additional instructions.”
The trial court proceeded to inquire of the prosecutor whether he intended to present an argument implicating the issue of imperfect defense of another. The following colloquy ensued:
“[Prosecutor]: I’m sorry. The problem is?
“THE COURT: The problem is, if you’re going to argue that he used excessive force in the defense of [] Stein, we raise the whole issue of imperfect self-defense, I think.”
During closing arguments, the prosecutor would indeed retreat from his opening statement’s claim of cold-blooded murder while Ficarra sat inside his car. However, the trial court did not instruct on voluntary manslaughter based on imperfect defense of another.
Having retreated from an initial argument against a voluntary manslaughter instruction to noting that such instruction might be necessary based on the prosecution’s revision of its theory of the case, counsel for Bortis cannot be held to have invited error in failure to give a voluntary manslaughter instruction.
B
The trial court instructed only on murder and on the justifiable homicide theory of perfect defense of another (i.e., an actual and reasonable belief in the need to defend another). Bortis contends the trial court was also required to instruct sua sponte on voluntary manslaughter.
The California Supreme Court has explained that proof of imperfect self defense precludes conviction of first degree murder: “Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the [murder] element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder.” (Breverman, supra, 19 Cal.4th at p. 154.)1 Consequently, evidence indicating a defendant’s honest but unreasonable belief of the need to engage in self-defense or defense of another requires a jury instruction on voluntary manslaughter. (See ibid.)
The Breverman court declared that “‘[t]he obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.’” (Breverman, supra, 19 Cal.4th at pp. 154-155; People v. Golde (2008) 163 Cal.App.4th 101, 115.)
The elements of voluntary manslaughter based on imperfect defense of another are: (1) the defendant actually believed that someone else was in imminent danger of being killed or suffering great bodily injury and (2) the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; but (3) at least one of those beliefs was unreasonable. (CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense--Lesser Included Offense.) As the California Supreme Court has explained, “the doctrine of imperfect self-defense [requires] ‘[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.’” (People v. Rogers (2006) 39 Cal.4th 826, 883, quoting People v. Flannel (1979) 25 Cal.3d 668, 674, first brackets added.) In short, perfect defense of another requires both an actual and a reasonable belief in the need to defend another, while imperfect defense of another requires only an actual (and “honest”) belief.
As the use notes to the CALCRIM jury instructions on perfect self-defense and on imperfect self-defense (and, by extension, to defense of another), explain: “Most courts hold that an instruction on imperfect self-defense is required in every case in which a court instructs on perfect self-defense [as noted, the trial court here instructed on perfect self-defense].” (Judicial Council of Cal. Crim. Jury Instns. (2006-2007) Bench Notes to CALCRIM No. 571, p. 377, bolding omitted; see also, CALCRIM, supra, Related Issues to CALCRIM No. 505, p. 251.)
If substantial evidence indicates an “actual belief” for purposes of perfect defense of another, sufficient evidence of an actual belief exists to require instruction on voluntary manslaughter due to imperfect defense of another. (People v. De Leon (1992)10 Cal.App.4th 815, 824 [“If there was substantial evidence of imperfect self-defense not inconsistent with the defense theory of the case, the trial court had a sua sponte duty to give such an instruction”].) In short, an instruction on imperfect self-defense (or defense of another) is ordinarily required when a court instructs on perfect self-defense. (Ibid.)
In People v. Rodriguez (1997) 53 Cal.App.4th 1250, the Court of Appeal held that an imperfect self-defense instruction was not required when a defendant’s account of the crime allowed only for an acquittal based on justifiable homicide or first degree murder. (Id. at p. 1275; see also id. at pp. 1272-1274.) The defendant in Rodriguez claimed to have acted in perfect self-defense against a victim who had earlier attacked and slashed defendant’s face with a knife. (Id. at p. 1272.) The trial court instructed on murder, voluntary manslaughter based on heat of passion, and involuntary manslaughter. (Ibid.) The Court of Appeal rejected the argument that the trial court should also have instructed on voluntary manslaughter due to imperfect self-defense “because no request was made, and because it was not ‘“clearly demanded by the evidence.”’” (Ibid., quoting People v. Barton (1995) 12 Cal.4th 186, 197.) In contrast to Rodriguez, the evidence presented in this case did not constrain the jury to an “either/or” decision. As we shall explain, substantial evidence in this case warranted instruction on imperfect defense of another.
C
The Attorney General contends this case lacks substantial evidence of imperfect defense of another. Respondent argues: “Absent evidence that Ficarra was choking Stein, the evidence simply provides no basis for Bortis to have had an [actual] belief, reasonable or otherwise, that Ficarra was an imminent threat.” However, at the time the court had to decide on jury instructions, the jury had heard evidence that Ficarra was choking Stein.
The evidence of imperfect defense of another was “‘substantial enough to merit [a jury’s] consideration.’” (See Breverman, supra, 19 Cal.4th at p. 162.) Witnesses testified that Ficarra angrily got out of his vehicle to confront Stein, and that Ficarra had an extensive history of threats and violence when confronting neighbors, including Bortis. This evidence encompassed (1) Baker’s testimony that Ficarra was “pissed off” and that Ficarra’s car door opened quickly; (2) Bortis’s and Stein’s testimony about Ficarra’s driving toward Stein, about Ficarra’s death threats to Stein during this encounter, and about his car door flying open; and (3) the fact that the encounter was based on the long-boiling property dispute between Ficarra and Bortis/Stein. The extensive history of Ficarra’s threats and violence in confronting neighbors came from the neighbors themselves, a history Bortis was aware of concerning the Loomis neighbors and which he had experienced firsthand. And Stein and Bortis had both testified that Ficarra was choking Stein.
In sum, Bortis’s jury was presented with substantial evidence of imperfect defense of another. Since courts are truth-seeking institutions rather than gambling halls, the trial court had the duty to instruct sua sponte on imperfect defense of another. (People v. St. Martin (1970) 1 Cal.3d 524, 533.) Accordingly, we conclude the trial court erred in failing to instruct on voluntary manslaughter based on imperfect defense of another.
D
The question remains whether the failure to instruct on voluntary manslaughter was prejudicial. (Breverman, supra, 19 Cal.4th at p. 165.) “[S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (Ibid., citing Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) In other words, we must affirm unless this court, “‘after an examination of the entire cause, including the evidence, ’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.) Here, our vantage point is different from that of the trial court when it instructed the jury. Now, we have the benefit of the jury’s verdicts. When we factor in the verdict against Stein, we conclude the trial court’s failure to instruct on voluntary manslaughter premised on imperfect defense of another was harmless.
The same jury that convicted Bortis of first degree murder also convicted Stein of being accessory after the fact to the same murder. In convicting Stein, the jury had to credit one of the two theories of her culpability advanced by the prosecution. The prosecutor argued that Stein was an accessory because she had (1) hidden the murder weapon in the laundry room of Bortis’s house after the shooting, and (2) fabricated the story about being strangled by Ficarra immediately before Bortis fired the fatal shots.
It is doubtful that the jury convicted Stein on the theory that she hid the murder weapon. In response to the deputy’s inquiry about the location of the handgun used to shoot Ficarra, Stein immediately responded: “I’ll show you.” Without delay, Stein led Deputy Sinclair to the rear of Bortis’s nearby house. True, Stein did not allow the deputy to enter. However, Deputy Sinclair reached a “compromise” with Stein. Deputy Sinclair explained the compromise was “[t]hat I would remain where I was and she would retrieve the weapon.” Consistent with this compromise, Stein proceeded directly to the laundry room and retrieved the murder weapon. Stein did not attempt to mislead the deputy about the murder weapon’s use in the shooting or its location.
However, Stein did fabricate the strangling story. The forensic evidence indicated that the lack of blood on her person and absence of injury due to the 11 rounds fired by Bortis at Ficarra – who allegedly had his hands around her neck – seriously undermined her strangling story. When questioned at the scene of the shooting, Stein continuously rubbed her neck but displayed no bruising. Fingernail scrapings from Ficarra were negative for any of Stein’s DNA; and Stein’s necklace, earrings, and glasses were all intact. Bruising on Stein’s neck appeared the day after the shooting. At oral argument in this case, Stein’s counsel confirmed: “The accessory conviction was based on Stein’s strangling story.” We agree.
Having decided that Stein conjured up the strangling story, the jury undoubtedly also concluded that Bortis was complicit with it. The recorded conversation placed from jail confirmed that Stein and Bortis worked together to synchronize their stories about the shooting. The likely conclusion that Bortis shared in the fabrication of the choking defense would have required rejection of the defense’s theory that Bortis had an “actual” or “honest” belief that Stein needed to be saved from Ficarra’s clutches. (See People v. Rogers, supra, 39 Cal.4th at p. 883.) Given the jury’s probable conclusion that defendants had concocted the strangling story, the jury would not have found Bortis to have committed voluntary manslaughter based on his honest but unreasonable belief in the need to defend Stein. The probable rejection of Bortis’s claim to an honest belief in the need to defend Stein renders harmless the trial court’s failure to instruct sua sponte on imperfect defense of another.
Accordingly, the instructional error was nonprejudicial.
II
Motion to Suppress Evidence of the Guns Found in the House
In addition to murder, Bortis was convicted of possessing eight illegal firearms. In addition to evidence of the illegal weapons, the trial court admitted, without limitation, evidence of some 50 other guns seized from Bortis’s house.
Bortis contends the warrantless entry of his home leading to the discovery of the guns cannot be excused as a protective sweep. He thus urges us to conclude that the trial court erred in failing to grant his motion to suppress this evidence. We reject the argument.
A
The deputies who initially discovered the guns inside Bortis’s house testified that they entered the residence to conduct a protective sweep. Deputies James Hudson and Scott Dow, arrived on the shooting scene immediately after the officers who first responded, Deputies Woo and Sinclair. The scene was chaotic. Many people were present. The shooting victim was lying fairly close to Bortis’s house, which had windows overlooking the scene.
Before they swept Bortis’s house, Deputies Hudson and Dow knew that Stein had retrieved the gun from inside Bortis’s home that was acknowledged to be the shooting weapon. They also knew that Stein had physically blocked Deputy Sinclair’s attempt to enter the house when Stein went to retrieve the gun. This latter fact, said Hudson, “raised [his] suspicion.” Hudson and Dow had no information concerning whether any other person lurked inside the house.
B
The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures. This amendment permits a quick and limited search of a house (i.e., a warrantless protective sweep) when someone is arrested just outside the house and the searching officer has a fact-based reasonable suspicion that the area to be swept harbors a dangerous person. (Maryland v. Buie (1990) 494 U.S. 325, 327, 334-336 [108 L.Ed.2d 276, 281, 286-287]; People v. Celis (2004) 33 Cal.4th 667, 678-679 (Celis).) In reviewing a ruling on a motion to suppress, we defer to the trial court’s supported factual findings, but we independently apply the requisite legal standard to the facts presented. (Celis, supra, 33 Cal.4th at p. 679.)
Like the trial court, we find Deputies Hudson’s and Dow’s search justified as a protective sweep. At the time of the sweep, a victim lay dead of gunshot wounds in the street in front of Bortis’s house. A substantial amount of firepower had been deployed. What Stein identified as the weapon used to shoot Ficarra had been retrieved from the house.
The house’s location and windows rendered vulnerable the deputies and other emergency personnel on the scene, and the officers were obligated to remain near the residence as medical personnel and investigators carried out their duties. The person who retrieved the gun from the house refused to let an officer into the house, attempting to shut the door on the officer when he tried to enter.
We recognize that a “mere refusal” to consent to a search, “without more, ” does not give rise to a reasonable suspicion or probable cause to conduct it, because a person obviously does not have to surrender rights to secure them. (Florida v. Bostick (1991) 501 U.S. 429, 437 [115 L.Ed.2d 389, 400]; United States v. Fuentes (9th Cir. 1997) 105 F.3d 487, 490.) But here there was more than “mere” refusal. There was a person who admitted being involved in the shooting and obtained the gun used in the barrage from the house, while adamantly refusing to let an officer accompany her into the same house.
The facts here can be contrasted with those in People v. Celis, supra, 33 Cal.4th 667, which fell short of a reasonable suspicion. In Celis, the defendant had been stopped by a detective at gunpoint as he rolled a large truck tire into the alley behind his house and toward a waiting pickup truck. The defendant was handcuffed and made to sit down as officers walked through his house to determine if danger lurked within. (Celis, supra, 33 Cal.4th at p. 672.) The officers did not have any information as to whether anyone was inside the home. There was no indication that either the defendant or the driver of the truck was armed. Moreover, until the defendant later consented to a search of the truck tire, the officers were unaware that the tire had been cut open and then resealed to conceal cocaine. (Id. at pp. 679-680.)
Here, the officers knew that at least one gun was in the house. They were ready targets for anyone shooting from the windows above. The deputies acted reasonably in conducting a protective sweep of the house. The trial court did not err in denying Bortis’s motion to suppress.
III
Failure to Give A Jury Instruction to Preclude Reliance on the Firearms as Propensity Evidence
In addition to murder, Bortis was charged with illegal possession of two machine guns, four assault rifles, and armor-piercing ammunition. At trial, the prosecution introduced evidence of Bortis’s extensive collection of guns and ammunition, comprising about 50 firearms in addition to his illegal weapons. The court admitted the evidence without limitation.
Bortis contends the trial court erred in refusing to instruct the jury as follows: “The only gun which is relevant evidence to the murder charge is the gun which was actually used by Gary Bortis to shoot Lawrence Ficarra. You are instructed not to consider any of the other guns possessed by [defendant] Bortis as evidence against him in the murder charge.” We reject the contention.
A
Bortis relies on People v. Riser (1956) 47 Cal.2d 566 (Riser) [overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649] to contend the firearm evidence was not relevant to proving he committed premeditated murder. In Riser, the California Supreme Court held that “[w]hen the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant’s possession some time after the crime that could have been the weapons employed.” (Id. at p. 577.) However, the Riser court also admonished: “When the prosecution relies... on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons.” (Ibid.) Bortis emphasizes this cautionary language in assigning error to the trial court’s failure to preclude the jury from considering evidence of guns other than the murder weapon itself on the question of whether he murdered Ficarra.
In People v. Smith (2003) 30 Cal.4th 581, the California Supreme Court clarified its holding in Riser to explain that weapons not directly used in the commission of the charged crime nonetheless may constitute relevant evidence. The defendant in Smith challenged the admission of a gun and ammunition belonging to him but which did not match the description of the murder weapon. (Id. at p. 613.) Relying on Riser, defendant contended that the admission into evidence constituted error. (Ibid.) The high court rejected the argument, explaining that the “evidence did not merely show that defendant was the sort of person who carries deadly weapons, but it was relevant to his state of mind when he shot [the victim].” (Ibid.) The defense claimed defendant intended to employ a gun only to intimidate but not to shoot the victim. (Ibid.) However, the evidence showed defendant “possessed another small, easily concealed but unloaded gun and no ammunition” suitable for the same purpose. (Id. at pp. 613-614.) Although not employed in the shooting, the unloaded gun was relevant because “[a]n unloaded gun fully serves to intimidate; a loaded gun is necessary only to actually shoot. Thus, although the ammunition and derringer were not used in the killing, ‘[t]heir circumstantial relevancy... seems clear, ’ and they were, accordingly, properly admitted.” (Ibid., quoting People v. Lane (1961) 56 Cal.2d 773, 785.)
Similarly, in People v. Jablonski (2006) 37 Cal.4th 774, at page 822, the Supreme Court held that homemade handcuffs and a stun gun recovered from the defendant’s vehicle, but not used during the murder, were relevant in proving premeditation. As the Jablonski court explained, “premeditation was a disputed fact and evidence that defendant carried devices to the crime scene that could have been used to restrain or immobilize the victims was relevant to premeditation.” (Id. at p. 821.) Accordingly, the high court held that these items’ relevance did not compel their exclusion from evidence. (Id. at pp. 822-823.)
In this case, the prosecution argued that the loaded guns kept by Bortis throughout his house tended to prove premeditation because they showed Bortis was obsessed with winning the boundary contest and confrontations with Ficarra. During closing arguments, the prosecution stated: “Motive, planning and the manner of killing. How does the manner suggest deliberation and careful reasoning of consequences against and knowledge of the consequences? This he – what the firing of those 11 shots demonstrates is the intensity of Bortis’s desire to see [] Ficarra die, and that that’s the significance of those 11 shots. He had been--he had been feeding this motive of his. It was a contest of wills. He did not want to see the property developed, and he was obsessed with using fire power to make sure that he would win this test of wills. He had loaded guns everywhere, not just the small of his back.”
As evidence of motive and premeditation, the guns were relevant to the charge of murder. (See People v. Prince (2007) 40 Cal.4th 1179, 1249-1250 [evidence of defendant’s obsession with knives relevant to the question of premeditation].)
B
Even if the trial court had erred in failing to give Bortis’s requested limiting instruction, the error would have been harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.) It is not probable that Bortis’s proposed limiting instruction would have yielded a result more favorable to him. Bortis testified that he told Mendocino that he carried a gun whenever he was outside his house in case he ran into Ficarra. That Bortis might have had additional firearms at his disposal inside the house added little to the evidence that he carried a handgun with 11 live rounds for the express purpose of being armed during any run-in with Ficarra. Accordingly, any error in the trial court’s refusal to give the requested limiting instruction was harmless.
IV
CALCRIM No. 224
The trial court instructed Bortis’s jury with CALCRIM No. 224 as follows:
“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
Bortis recognizes that CALCRIM No. 224 correctly instructs on circumstantial evidence when it cautions the jury that such evidence must prove guilt beyond a reasonable doubt. However, Bortis contends the instruction is deficient because it fails to direct the same caution to direct evidence. Bortis reasons the jury might have convicted him only on the direct evidence provided by percipient witness Tracy Baker – testimony that Bortis asserts to have been insufficient to establish guilt beyond a reasonable doubt.
In so arguing, Bortis acknowledges this court’s rejection of challenges to CALCRIM No. 224 in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson), as well as the same result reached by the Fifth District in People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra). Bortis urges us to depart from these decisions because (1) their discussion of direct evidence conflicts with the California Supreme Court’s prior decision in People v. Vann (1974) 12 Cal.3d 220 (Vann), and (2) the discussion of CALCRIM No. 224’s application to direct evidence constituted nothing more than dicta in Anderson and Ibarra. We reject Bortis’s contentions.
In an argument virtually indistinguishable from Bortis’s, the defendant in Anderson contended “because this instruction is limited to circumstantial evidence and sets forth basic reasonable doubt and burden of proof principles, it gives the false impression these principles apply only to circumstantial evidence, not direct evidence.” (Anderson, supra, 152 Cal.App.4th at p. 931.)
This court rejected the argument, explaining that “CALCRIM No. 224 does not set out basic reasonable doubt and burden of proof principles; these are described elsewhere. Although the instruction reiterates that each fact necessary for conviction must be proved beyond a reasonable doubt, the obvious purpose of the instruction is to limit the use of circumstantial evidence in establishing such proof. It cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant's guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant’s guilt.
“The same limitation does not apply to direct evidence. Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence.” (Anderson, supra, 152 Cal.App.4th at p. 931.)
In Ibarra, the Court of Appeal similarly came to the conclusion that defendant in that case wrongly assumed “that circumstantial evidence and direct evidence are similarly situated, but that is not so. Circumstantial evidence involves a two-step process-first, the parties present evidence and, second, the jury decides which reasonable inference or inferences, if any, to draw from the evidence-but direct evidence stands on its own. So as to direct evidence no need ever arises to decide if an opposing inference suggests innocence.” (Ibarra, supra, 156 Cal.App.4th at p. 1187, citing Anderson, supra, 152 Cal.App.4th at p. 931.)
Regardless of whether the pertinent portions of Anderson and Ibarra constituted dicta or not, we find the reasoning to be sound and adopt it here.
We further conclude that neither Anderson nor Ibarra runs afoul of the California Supreme Court’s conclusion in Vann that “that the trial court prejudicially erred when it failed to instruct the jury on the prosecution's burden to prove guilt beyond a reasonable doubt.” (Vann, supra, 12 Cal.3d 220, 222-223.) In contrast to Vann, in which the jury received no instruction defining the prosecution’s burden to prove guilt beyond a reasonable doubt, the jury in Anderson, and this case did receive such instruction. (Compare Vann, supra, at pp. 222-223, 227-228 with Anderson, supra, 152 Cal.App.4th at p. 931; Ibarra, supra, 156 Cal.App.4th at p. 1185.)
The fundamental flaw in Bortis’s argument lies in overlooking CALCRIM No. 220, 1 with which the trial court properly instructed the jury to acquit unless the prosecution proved Bortis’s guilt beyond a reasonable doubt. “[C]hallenged instructions ‘“may not be judged in artificial isolation, ” but must be considered in the context of the instructions as a whole and the trial record.’” (People v. Tuggles (2009) 179 Cal.App.4th 339, 365, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72-73 [116 L.Ed.2d 385].) Viewed as a whole, the jury instructions precluded the jury from convicting Bortis on the basis of direct evidence if it failed to establish his guilt beyond a reasonable doubt.
Accordingly, the trial court did not err in instructing the jury with CALCRIM No. 224.
V
Recesses
Bortis contends the trial court denied him a fair trial by twice ordering 10-day recesses during trial. We are not persuaded.
A
On February 5, 2007, the trial court informed counsel that a shortage of courtrooms would require a recess every other week. The prosecutor and counsel for Stein reluctantly accepted the proposed schedule. The court then inquired of Bortis’s counsel as follows:
“THE COURT: Mr. Tochterman?
“[Defendant Bortis’s counsel]: I think I need to make an objection for the record, although I would also say
“THE COURT: If you’re going to object, I’ll send the case back to trial assignment. I don’t want to go through a four or five week trial and have someone at the end object we went every other week and that wasn’t the system they were going to agree to so
“[Defendant Bortis’s counsel]: Well, if that’s the indication, then I won’t make the objection, however
“THE COURT: You feel free to make your objection. I don’t want to preclude you from making an objection. I just want you to see what will happen as a result of that objection.
“[Defendant Bortis’s counsel]: That’s why I’m not going to make it.
“THE COURT: I invite you to make it if you want. That’s the reality of what is going to have to happen. I don’t want to put this case in jeopardy because there’s an objection to going every other week.
“[Defendant Bortis’s counsel]: It’s more for the record. If that’s
“THE COURT: The record is here now so tell me if there’s going to be an objection to that process.
“[Defendant Stein’s counsel]: May I have a minute?
“THE COURT: Certainly.
“(Conference between counsel.)
“[Defendant Bortis’s counsel]: I’ll not make the objection.”
Thereafter, trial commenced and proceeded until February 23, 2007. A recess was taken until March 5, 2007, and another recess occurred between March 8 and March 19, 2007.
B
As the recounted colloquy shows, Bortis’s counsel elected not to object to the planned trial recesses. His express election to not object precludes him from raising the issue for the first time on appeal. (People v. Bolden (2002) 29 Cal.4th 515, 561 [holding that because of defendant’s failure to object to suspension of jury deliberations, the claim was not preserved for appellate review]; People v. Ochoa (2001) 26 Cal.4th 398, 440 [defendant’s failure to object to mid-trial recess precluded the error from being raised on appeal].)
Bortis argues that he should be excused from his decision not to object because he was wrongly forced to choose between his rights to a continuous trial and a speedy trial. However, nothing in the record shows that trial counsel’s concern related to a speedy trial rather than some other tactical decision. Moreover, the record fails to support Bortis’s assertion that many months of delay in commencement of trial would have occurred if he had objected to the trial schedule.
In any event, Bortis fails to demonstrate prejudice. As the Attorney General points out, the first recess encompassed only five trial days. The second recess involved the jury’s absence from the courtroom from March 7 to March 19, 2007. However, during that time, the court and counsel for the parties met on March 8 and 14 to discuss admission of exhibits and to work on the jury instructions.
The record does not indicate that the recesses unfairly favored the prosecution or hindered defendants from fully presenting their cases. Although Bortis complains that one of the delays occurred “in the middle of the defense case” and that the other took place after the prosecution’s rebuttal was completed, timing by itself does not establish that his right to a fair trial was denied. The record contains no indication that the prosecution obtained additional evidence to bolster its case or that Bortis was deprived of any evidence favorable to his defense. In short, even assuming the issue has not been forfeited for failure to object, the two trial recesses were harmless.
Stein’s Appeal
VI
Sufficiency of the Evidence for Conviction of Accessory After the Fact to Murder
Stein contends insufficient evidence proved she “actually knew, at the time she acted to protect [Bortis] from the consequences of his shooting Ficarra, that what [Bortis] had done constituted murder.” (Italics added.) We disagree.
Under Stein’s theory, to be convicted of accessory to murder, the accessory had to know that a murder had been committed. This is not the law. A felonious killing suffices, so long as the jury, as was the case here, is instructed fully on the elements of the charged offense – accessory to a felony (which here happened to be murder, with murder instructions given); the evidence is sufficient of a felonious killing; and the record does not suggest any confusion on the jury’s part. (See People v. Magee (2003) 107 Cal.App.4th 188, 191-193; People v. Shields (1990) 222 Cal.App.3d 1, 4-5.) To adopt Stein’s position would make an accessory conviction hinge on the technical legal label affixed to the underlying conviction, rather than on what the accessory actually did in helping a person who committed an indisputably serious crime (a felony) to avoid arrest, trial, conviction or punishment. (See § 32 [defining accessory to felony].) We reject such a rule.
As we explained in part I-D, ample evidence supported the rejection of Stein’s choking story. Her attempts to mislead investigators to exculpate Bortis supported her conviction of section 32 for being an accessory after the fact. The evidence was not insufficient.
VII
Denial of Stein’s Request for Probation
Stein next contends the trial court erred in denying her probation based on a fact, i.e., murder, that is an element of the offense for which she was convicted. We reject the argument.
A
In denying Stein’s request to be placed on probation, the trial court explained: “[A]fter much consideration about the facts of this case and the fact that we are not talking about accessory to a second degree burglary or accessory to a drug charge or accessory to a car theft. We are talking about accessory to if not the most serious, one of the most serious crimes described in the Penal Code”; and “It’s the magnitude of the crime, that is accessory to a crime that is the most serious of the crimes that we know [i.e., murder].” The trial court added that Stein concocted the choking story and initially hid the weapon.
B
Section 32 defines an “accessory” to a crime as a “person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.” Thus, conviction for being an accessory requires: “(1) someone other than the accused, the principal to the crime, must have committed a specific, completed felony; (2) the accused must have harbored, concealed or aided the principal; (3) the element of scienter must be present in this, that the accused must have had knowledge that the principal has committed a felony, or has been charged or convicted thereof; (4) the element of specific intent must have been present, namely, that the accused must have harbored, concealed or aided with the intent that the principal may avoid or escape from arrest, trial, conviction or punishment.” (People v. Duty (1969) 269 Cal.App.2d 97, 100-101, quoting People v. Hardin (1962) 207 Cal.App.2d 336, 341.)
Murder is not an elementof her offense of being an accessory after the fact. (§ 32; see also People v. Parrott (1986) 179 Cal.App.3d 1119, 1122, 1124-1125 [there, the court erroneously used an element of the offense to deny probation – i.e., the victim was vulnerable because he was a minor; the offense was “selling marijuana to a minor” [Health & Saf. Code, § 11361].) Instead, Stein’s accessory acts in tendering a deliberately misleading story about the shooting were all that was required for her conviction. (People v. Duty (1969) 269 Cal.App.2d 97, 100-101.) The court was not foreclosed from considering the seriousness of the murder a factor in denying her probation. (Cal. Rules of Court, rule 4.421(a)(1); People v. Garcia (1989) 209 Cal.App.3d 790, 794.) Accordingly, the trial court did not abuse its discretion in denying Stein probation.
VIII
Section 4019 Custody Credits
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem Stein to have raised the issue of whether amendments to section 4019 (effective January 25, 2010) apply retroactively to her pending appeal and entitle her to additional presentence credits. The amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) Stein is not excluded from the additional accrual of credit. (§ 4019, subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Stein, having served four days of presentence custody, is entitled to four days of conduct credits.
Bortis, having been convicted of murder (§ 187), is ineligible for the increased custody credits provided by section 4019. (§§ 4019, subd. (c)(2) [excepting defendants convicted of serious felonies], 1192.7, subd. (c)(1) [including murder among serious felonies].)
DISPOSITION
As to defendant Bortis the judgment is affirmed.
Defendant Stein’s judgment is modified to reflect that she is entitled to a total of eight days of presentence custody credits, consisting of four days of actual custody credit plus four days of conduct credit. As modified, defendant Stein’s judgment is affirmed. The trial court is directed to amend the abstract of judgment for Stein to reflect this modification and to forward a certified copy of Stein’s amended abstract to the Department of Corrections and Rehabilitation.
I concur: NICHOLSON, J.
BUTZ, J., Concurring and Dissenting.
I concur in parts I-A, I-B, I-C, II, IV, V, VI, VII and VIII of the majority opinion.
I respectfully dissent from the majority’s affirmance of defendant Gary Allen Bortis’s murder conviction. I part company with the majority opinion of my colleagues in two respects: first, on their pivotal conclusion that the trial court erred harmlessly in failing to instruct on voluntary manslaughter based on imperfect defense of another (maj. opn., pt. I-D); and, second, on their subsidiary point that the evidence of Bortis’s gun collection was relevant evidence of his motive and premeditation, and that, in any event, any error was harmless in the trial court’s refusal to give the defense-requested limiting instruction that the only gun relevant to the murder charge was the gun used to shoot the victim (maj. opn., pt. III).
As for the trial court’s failure to instruct on voluntary manslaughter based on imperfect defense of another, I simply cannot agree that this failure, a failure to instruct on Bortis’s only viable defense to murder a lesser included offense at that, and one substantially supported in the record was harmless. The only issue in Bortis’s homicide case was his state of mind concerning the shooting. The trial court failed to instruct fully on this issue, and the jury, unremarkably, convicted Bortis of murder rather than set him free based on the complete defense of justifiable homicide involving perfect defense of another.
As the majority correctly notes, our standard of reversible error is whether a review of the entire record establishes a reasonable probability that this failure to instruct adversely affected Bortis’s outcome. (People v. Breverman (1998) 19 Cal.4th 142, 165 (Breverman); People v. Watson (1956) 46 Cal.2d 818, 836.) As our state Supreme Court has made clear, “a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.) That standard is certainly met here.
The majority disagrees, reasoning that given “the jury’s probable conclusion that defendants [Bortis and Maryanne Stein] had concocted the strangling story, the jury would not have found Bortis to have committed voluntary manslaughter based on his honest but unreasonable belief in the need to defend Stein.” (Maj. opn., ante, at p. 28; see id., at pp. 26-28.)
There are two flaws in my colleagues’ reasoning.
The first one is their heavy reliance on the confusing term “honest belief” rather than on the more precise term, “actual belief.” (In re Christian S. (1994) 7 Cal.4th 768, 773 [although some imperfect defense cases refer “to an ‘honest belief’... the more precise term [is] ‘actual belief’ because it avoids the confusing suggestion inherent in the phrase ‘honest belief’ that a person could have a ‘dishonest belief’”].)
Of much greater importance, though, is the second flaw. The choking evidence from Bortis and Stein supported a claim of perfect defense of another that is, the complete defense of justifiable homicide. But there was substantial evidence of voluntary manslaughter based on imperfect defense of another without evidence that Lawrence Ficarra had choked Stein: Ficarra’s angry exit from his car and confrontation with Stein and his history of threatening behavior.
The evidence of Ficarra angrily getting out of his car and confronting Stein came from: (1) witness Tracy Baker’s testimony that Ficarra was “pissed off” and that Ficarra’s car door opened quickly; (2) Bortis’s and Stein’s testimony about Ficarra’s driving toward Stein, about Ficarra’s death threats to Stein during this encounter, and about his car door flying open; and (3) the fact that the encounter was based on the long-boiling property dispute between Ficarra and Bortis/Stein. The extensive history of Ficarra’s threats and violence in confronting neighbors came from the neighbors themselves, and Bortis was aware of and had experienced firsthand the history concerning the Loomis neighbors.
Based on this evidence of Ficarra’s angry exit and confrontation with Stein and his history of aggressive confrontations with neighbors and with Bortis, the jury reasonably could have concluded that Bortis actually believed in the necessity to defend Stein against imminent bodily danger from Ficarra. But the jury could also have accepted, based on the physical evidence and/or not believing that part of Bortis’s and Stein’s testimony about the choking, that no choking actually occurred; and concluded that Bortis’s belief that death or great bodily injury was imminent or his belief that deadly force was necessary, was unreasonable. The jury reasonably could parse Bortis’s and Stein’s testimony in this way, reasoning that, given the existence of some evidence of defense of another, Bortis’s defense strategy was simply to shoot for the grand prize of the complete defense of justifiable homicide based on perfect defense of another. (Furthermore, this defense strategy of a complete defense initially sprang from the prosecution’s opening statement, later disavowed, that Ficarra was killed, cold-blooded execution-style, while sitting inside his car.) The trial court’s error here, however, foreclosed the jury from considering the honorable mention prize of the incomplete defense of voluntary manslaughter based on imperfect defense of another.
This parsing of the evidence parallels that in People v. Ceja (1994) 26 Cal.App.4th 78 (Ceja), overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92, a murder case where the court found prejudicial a failure to instruct on the lesser included offense of voluntary manslaughter based on imperfect defense of another. As Ceja concluded: “While defendant testified that the victim pulled a gun from his waistband and that defendant saw the barrel of the victim’s gun before defendant shot the victim, no gun was found at the scene and prosecution witnesses testified that the victim did not have a gun.... The jury was entitled to accept portions of a witness’s testimony and to disbelieve other portions [citation] and might well have concluded that defendant was mistaken about the victim being armed but also have concluded that defendant [actually] but unreasonably believed his life was in danger, making the killing... voluntary... manslaughter.” (Ceja, at p. 86.)
Furthermore, no less an authority than our state Supreme Court has stated that “‘“it is reversible error to refuse a manslaughter instruction in a case where murder is charged, and the evidence would warrant a conviction of manslaughter.”’”1 (Ceja, supra, 26 Cal.App.4th at p. 86, italics added, quoting People v. Edwards (1985) 39 Cal.3d 107, 116.)
That brings me to my second bone of contention with my colleagues: their subsidiary point that the evidence of Bortis’s extensive gun collection was relevant evidence of his motive and premeditation; and, in any event, the defense-requested limiting instruction on this evidence was harmlessly refused. (Maj. opn., ante, at pp. 32-35.)
The gun evidence admitted at Bortis’s trial comprised the homicide weapon, the eight illegal weapons, plus Bortis’s gun collection comprising some 50 other guns (many of them loaded; but Bortis has no criminal history regarding any of them). This extensive gun collection evidence showed nothing more than the prohibited inference that Bortis was the sort of person who possesses deadly weapons. (People v. Smith (2003) 30 Cal.4th 581, 613 (Smith); People v. Riser (1956) 47 Cal.2d 566, 577.) This evidence, pardon the expression, was simply overkill.
I reach this conclusion, ironically, by looking at the very cases cited by the majority on this issue: Smith, supra, 30 Cal.4th 581, People v. Jablonski (2006) 37 Cal.4th 774 (Jablonski), and People v. Prince (2007) 40 Cal.4th 1179 (Prince). In each of these three cases, the “other” weapons admitted into evidence (i.e., weapons not directly used in the charged offenses) were very few in number: one gun and some unrelated ammunition in Smith (30 Cal.4th at p. 613); a set of homemade handcuffs and a stun gun in Jablonski (37 Cal.4th at pp. 821-822); and four knives in Prince (40 Cal.4th at p. 1247). By contrast, the trial court here admitted, without limitation, some 50 “other” guns.
More significantly, in each of these three cases, the “other” weapons admitted were connected to the charges by evidence or by evidentiary inference: in Smith, the defendant’s claim that he intended only to intimidate, not shoot, was belied by his possession of the other gun an unloaded derringer (Smith, supra, 30 Cal.4th at pp. 613-614); in Jablonski, the defendant apparently carried the handcuffs and the stun gun to the crime scene (Jablonski, supra, 37 Cal.4th at p. 821); and in Prince, the use of knives was an integral part of the defendant’s sexually perverted method of assault (Prince, supra, 40 Cal.4th at p. 1250). The same cannot be said here. All we have is the prosecutor’s bald assertion in closing argument that, “It was a contest of wills [between Bortis and Ficarra].... [Bortis] was obsessed with using fire power to make sure that he would win this test of wills. He had loaded guns everywhere, not just [in] the small of his back.”
In conclusion, because the trial court failed to instruct on the supported lesser included offense of voluntary manslaughter based on imperfect defense of another, Bortis’s homicide case was presented to the jury from opening statement through closing argument as simply one of murder versus justifiable homicide. But there was substantial evidence in between these two extremes that the jury could have believed: again, voluntary manslaughter based on imperfect defense of another. Since courts are truth-seeking institutions rather than gambling halls, the jurors had to have this theory to consider. (People v. St. Martin (1970) 1 Cal.3d 524, 533.) They did not. And a miscarriage of justice resulted; a miscarriage only exacerbated by the arsenal of irrelevant, prejudicial evidence comprising Bortis’s gun collection. I would reverse Bortis’s murder conviction and remand for a new trial.