Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, Ct. No. KA083672, Bruce F. Marrs, Judge.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Jeremy Michael Vindiola.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Wilson Omar Alfaro.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendants and appellants Jeremy Michael Vindiola and Wilson Omar Alfaro of first degree murder. (Pen. Code, § 187, subd. (a) .) The jury found true the allegations that defendants personally used and personally and intentionally discharged a firearm proximately causing death. (§ 12022.53, subds. (b), (c), & (d).) In a bifurcated proceeding, the trial court found true the allegations that Vindiola suffered a prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and two prior felony convictions for which he served a term in prison within the meaning of section 667.5, subdivision (b). The trial court sentenced Vindiola to 77 years to life in state prison and Alfaro to 50 years to life in state prison.
All further statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendants contend that the trial court erred in its jury instructions on accomplice testimony and aiding and abetting and in failing to instruct the jury on second degree murder on an implied malice theory as a lesser included offense to first degree murder. Defendants further contend that even if any of the claimed errors individually does not mandate reversal, the cumulative effect of such errors does. Defendants state that they join in each other’s arguments. We affirm the judgments.
BACKGROUND
About 11:15 p.m. on June 17, 2008, Daniel Espinoza was driving home from work. When Espinoza reached the corner of Grandview Avenue and Kenoak Drive in Covina, he turned onto Kenoak Drive. As Espinoza drove on Kenoak Drive, a dark Toyota sedan approached him. A white Nissan SUV closely followed the Toyota. The vehicles’ lights were off. Espinoza had to swerve to the right to avoid hitting the Toyota. As the vehicles passed Espinoza, their lights turned on. Espinoza was unable to see the driver of either vehicle. Espinoza had seen the Toyota in the neighborhood many times before parked in front of his apartment building. On those occasions, Vindiola was driving the Toyota. Espinoza also had seen the Nissan parked in front of his apartment building. On one or two of the occasions that Espinoza saw the Nissan parked in his neighborhood, Alfaro was the driver.
After the Toyota and Nissan passed him, Espinoza turned onto Vecino where he saw his stepson Eddie Galvan lying in the street. Galvan was bleeding and gasping for air. Galvan had been shot twice—once in the head and once in the buttocks. Galvan later died from the gunshot wound to his head.
Angela Hendrickson testified that she and Michael “Minor” Trejo lived in an apartment on Vecino Drive in Covina. Hendrickson knew Alfaro and Vindiola. At some point on June 17, 2008, Alfaro came to the apartment and spoke with Trejo for about five minutes before he and Trejo left. Thereafter, about 10:50 or 11:00 p.m., Hendrickson left her apartment and went to the staircase to smoke. From her position, Hendrickson saw Alfaro and Trejo at the bottom of the staircase talking, Chris or “Spooks” standing at the corner, and “Eddie” walking from behind the apartments. Eddie and Trejo met up and walked toward the corner where Spooks was standing. Hendrickson did not see anything in Eddie’s or Trejo’s hands as they walked toward the corner.
Witnesses’ references to “Chris” and “Spooks” appear to refer to Christopher Saucedo.
As Eddie and Trejo walked toward the corner, Alfaro stood next to Hendrickson’s van that was parked in front of her apartment building. Alfaro’s white SUV was parked across the street. Vindiola’s dark-colored Camry was parked in front of Alfaro’s SUV. When Eddie and Trejo were close to Spooks, Hendrickson saw Alfaro run to his SUV and Vindiola stand up next to his car, apparently from a crouching position. Hendrickson saw Alfaro and Vindiola point and fire guns in the direction of Eddie and Trejo. Alfaro fired four or five times and Vindiola fired once or twice. Eddie stumbled and fell to the ground. Trejo ran away. Alfaro got into his SUV and drove away. Vindiola and Spooks got into Vindiola’s car and drove away.
Maryann Sorchini lived in an apartment at the corner of Vecino Drive and Kenoak in Covina. About 11:15 p.m. on June 17, 2008, Sorchini arrived home from work and began to change her clothes as she waited for a friend to arrive. About that time, Sorchini looked out her bedroom window and saw a white SUV and a dark colored four door car driving north on Vecino. Sorchini had not seen the car before, but estimated that she had seen the SUV driving in the neighborhood on 10 prior occasions. The vehicles made a U-turn and stopped under Sorchini’s window. Sorchini resumed changing her clothes and lost sight of the vehicles. Less than five minutes later, Sorchini finished changing her clothes and went outside onto her balcony to look for her friend. While on her balcony, Sorchini saw the car parked on the street near a pole, but did not see the SUV.
From her balcony, Sorchini saw a young Hispanic man standing next to a street sign about 20 feet away. Sorchini remained on her balcony for about five or six minutes. At some point, Sorchini saw “Eddie” and “Minor” exit an apartment building catty-corner from her. Eddie and Minor were walking “a little fast”—not a run—as they walked in Sorchini’s direction. As Eddie and Minor approached, the man standing next to the street sign had his hand under his shirt near his waistband.
As Eddie and Minor were halfway across the street, Minor asked the “guy” in a loud, confrontational voice, “Do you fucking have something?” The man held out his hands and responded, “No, naah, I don’t have anything.” After Eddie and Minor joined the man at the street sign, Sorchini saw two or three men appear from the area where the dark car was parked. The men walked “really fast” toward Eddie, Minor, and the man at the street sign.
Sorchini became scared and started to run into her apartment when she saw some lights flash and heard six or seven gunshots. Once inside, Sorchini grabbed a telephone to call 911. Sorchini heard screeching tires and looked outside. Sorchini saw Eddie lying on the ground.
Celia Mendoza knew Alfaro and was friends with Vindiola. On June 17, 2008, Mendoza lived on Vecino Drive in Covina. On June 28, 2008, Mendoza spoke with City of Covina Police Department Detectives Robert Bobkiewicz and Tony Zavala after she had been arrested for driving without a license. Mendoza’s mother, Vindiola, and Christopher Saucedo were with Mendoza when she was arrested. In the interview, a recording of which was played for the jury, Mendoza stated that “that night” she saw “Omar, ” Omar’s girlfriend, “Jeremy, ” and “Spooks” arrive in a white Pathfinder and a dark car. Omar went upstairs to “call” “Minor.” Later, Mendoza looked out the window and saw Minor, “Eddie, ” and Omar. Spooks was across the street by a street on the corner. Mendoza heard “pow pow pow” and saw Omar and Jeremy point and shoot guns in the direction of Eddie and Minor. Mendoza estimated that she heard about seven gunshots. After the shooting, Omar and Jeremy returned to their vehicles and left.
Alfaro is the father of Becky Fung’s baby. On July 29, 2008, City of Covina Police Department Detective Michael Robinson and his partner interviewed Fung. Fung told the detectives that on June 17, 2008, she had driven to the area of Vecino and Kenoak with Alfaro because of something that had happened earlier in the day. There, Fung saw two people she recognized—Vindiola and Chris “Spooks” Saucedo. Fung told the detectives that Alfaro got out of the car and told her to stay in the vehicle. A short time later, Fung heard at least two gunshots and saw Alfaro approaching the car. Fung heard at least two more gunshots. Alfaro got into the car and they drove away.
Vindiola called Trejo as a defense witness. Trejo had been convicted of kidnapping and carjacking and was in custody for another charge. Trejo testified that he lived in an apartment in West Covina with his brother David “Turtle” Carmona and Carmona’s girlfriend “Angela.” On June 17, 2008, Trejo, Carmona, and Angela were selling narcotics out of the apartment. During the course of that day, Trejo had ingested ecstasy, methamphetamine, and P.C.P. Trejo was “good friends” with Alfaro, Vindiola, and Galvan. Just before midnight, Alfaro arrived at the apartment and complained about some methamphetamine that Trejo had sold to him earlier that night.
As Trejo and Alfaro argued about the quality of the methamphetamine Trejo had sold Alfaro, Trejo saw a person standing on the corner who did not appear to belong in the neighborhood. Trejo believed the person was “Spooks.” Trejo believed that Spooks was 14 or 15 years old. Spooks was Galvan’s enemy and, thus, was Trejo’s enemy. The day before, Galvan, Trejo, and another person had beaten up Spooks. Trejo testified that he was “tripping out” over Spooks’s presence. Trejo and Galvan had just beaten up Spooks, so Spooks standing in front of Trejo’s apartment building “like it’s no big thing made it very weird.”
Trejo told his brother that Spooks was outside and instructed his brother to call Galvan. Trejo went outside and watched Spooks. Alfaro remained inside. Galvan arrived about five minutes later, and Trejo informed him that Spooks was out front. Trejo and Galvan approached Spooks. Neither Trejo nor Galvan had a weapon. Trejo and Galvan asked Spooks if he had a gun. Galvan gestured with his hands in a manner used by gang members when they are going to “get into it.”
Galvan and “Omar” exchanged words. According to Trejo, Omar then looked at Galvan and said, “I’ll smoke your bitch ass... and let him have it.” Trejo heard gunshots and felt the “skin” of a bullet pass by his head. Trejo ducked and looked up to see Galvan turn and fall face first to the asphalt. Trejo heard another three shots. All four shots came from behind Trejo and Galvan. Trejo ran around the corner and into an alley. Trejo determined that he was not being chased and returned to Galvan. As he returned, Trejo saw Alfaro’s and Vindiola’s vehicles drive past him.
Trejo testified that the day before his testimony, he had spoken with the prosecutor and another person. The prosecutor asked Trejo to give him a “summary of what happened.” Trejo “made something up”—he told the prosecutor that he gave Galvan a pistol as they approached Spooks and that his brother retrieved the gun from Galvan after the shooting. Trejo testified that Galvan was not armed. Trejo explained that he lied to the prosecutor because he believed that the prosecutor would not make him testify if he appeared to be a liar. Trejo testified that subsequently he spoke with his attorney and learned that his statement to the prosecutor subjected him to prosecution for murder. Trejo was unaware of the consequences of his statement and would not have made the statement had he been aware. Trejo explained that he was testifying to “make things clear” and to clear his conscience. Trejo had “life” and had nothing to gain. Trejo admitted that he had told a number of different stories including one in which he stated that Alfaro had been in the street shooting. That story was not true. Trejo did not know who shot Galvan.
The parties stipulated that “District Attorney Investigator Gil Roldan and Deputy District Attorney Mr. Phan spoke with witness Michael Trejo in the lockup area of the Pomona courthouse on Tuesday, July 21, 2009; [¶] Mr. Trejo stated that he, Mr. Trejo, handed a.357 handgun to Mr. Edward Galvan at the time Trejo and Galvan were walking across the street towards Spooks; [¶] Mr. Trejo further stated that his brother, Turtle, picked up the gun after the shooting.”
DISCUSSION
I. Corroboration Of Accomplice Testimony
Defendants contend that the trial court erred in instructing the jury that Trejo was an accomplice as a matter of law whose testimony had to be corroborated. The trial court’s error was prejudicial, defendants argue, because there was no corroboration for Trejo’s statement to the prosecutor and the prosecutor’s investigator that he handed Galvan a handgun as they approached Spooks—the basis for defendants’ claims of self-defense and defense of others, or the basis for a finding of voluntary manslaughter on an unreasonable defense of another theory. We hold that any error in finding Trejo to be an accomplice and instructing the jury that accomplice testimony had to be corroborated was harmless.
A. Background
During a discussion of jury instructions, the prosecutor told the trial court that he had provided accomplice instructions in the event that Alfaro testified and placed Vindiola at the scene, thus making Vindiola an accomplice. The next day, the prosecutor informed the trial court that he and an investigator had spoken with Trejo in anticipation of calling Trejo as a witness. During the conversation, Trejo divulged information “in the nature of Brady material” that the prosecutor believed might subject Trejo to prosecution for Galvan’s murder on a provocative act theory.
Under Brady v. Maryland (1963) 373 U.S. 83, 87, the prosecution has a duty to disclose to the defense material, exculpatory evidence.
Trejo waived his right against self-incrimination and testified that he falsely told the prosecutor that he gave Galvan a gun and that his brother retrieved the gun from Galvan after the shooting. Trejo further testified that Galvan was not armed. At the conclusion of the defense case, the parties stipulated that Trejo told the prosecutor and the prosecutor’s investigator that he handed Galvan a gun as he and Galvan walked towards Spooks, and that his brother picked up the gun after the shooting.
B. The Accomplice Instructions
The trial court instructed the jury on accomplices with CALJIC Nos. 3.10, 3.11, 3.12, 3.13, 3.14, 3.16, 3.18, and 3.19. CALJIC No. 3.10 provides, “An accomplice is a person who is subject to prosecution for the identical offense charged in Counts [sic] 1 against the defendant on trial by reason of aiding and abetting or being a member of a criminal conspiracy.”
CALJIC No. 3.11 provides, “You cannot find a defendant guilty based upon the testimony of an accomplice or the testimony by a codefendant that incriminates the defendant unless that testimony is corroborated by other evidence which tends to connect the that [sic] defendant with the commission of the offense.
“Testimony of an accomplice or by a codefendant includes any out of court statement purportedly made by an accomplice or a codefendant received for the purpose of proving that what the accomplice or the codefendant stated out of court was true.”
CALJIC No. 3.12 provides, “To corroborate the testimony of an accomplice there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged.
“However, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged, or that it corroborate every fact to which the accomplice testifies.
“In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime.
“If there is no independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accomplice is not corroborated.
“If there is independent evidence which you believe, then the testimony of the accomplice is corroborated.”
CALJIC No. 3.14 provides, “The required corroboration of the testimony of an accomplice may not be supplied by the testimony of any or all of hisher [sic] accomplices, but must come from other evidence.”
CALJIC No. 3.16 provides, “If the crime of murder was committed by anyone, the witness Trejo was an accomplice as a matter of law and hisher [sic]testimony is subject to the rule requiring corroboration.”
CALJIC No. 3.18 provides, “To the extent that an accomplice or a codefendant gives testimony that tends to incriminate the a [sic] another defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case.”
CALJIC No. 3.19 provides, “You must determine whether the witness Trejo was an accomplice as I have defined that term.
“The defendant has the burden of proving by a preponderance of the evidence that Trejo was an accomplice in the crimes charged against the defendant.”
C. Application of Relevant Principles
Section 1111 provides that “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” Section 1111 defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” “An ‘accomplice’ is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime.” (People v. Jones (1967) 254 Cal.App.2d 200, 213; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158.) Claims of instructional error with respect to accomplice instructions are subject to the reasonable probability standard of harmless error under People v. Watson (1956) 46 Cal.2d 818, 836–837 (Watson). (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.)
Defendants contend that the evidence does not support a determination that Trejo was their accomplice in the shooting of Galvan. Respondent agrees, stating that “it does not appear that Trejo can be properly characterized as an accomplice of [defendants].” The trial court did not set forth the basis upon which it instructed the jury on accomplices. The evidence at trial suggested that defendants, aided by Spooks, lured Galvan and Trejo outside in order to kill them. No view of the evidence supports the theory that Trejo “knowingly, voluntarily, and with common intent with [defendants] unite[d] in the commission” of Galvan’s shooting. (People v. Jones, supra, 254 Cal.App.2d at p. 213; People v. Verlinde, supra, 100 Cal.App.4th at p. 1158.) Accordingly, there was no basis for, and the trial court erred in, instructing the jury on accomplices.
Even though the trial court erred in instructing on accomplices, the error was harmless for a number of reasons. First, Trejo’s statement that he handed Galvan a gun provided the basis for defendants’ self-defense and defense of another theories of justifiable homicide. With respect to those defenses, Trejo’s statement was exculpatory and not incriminating, and thus not subject to the corroboration requirement for incriminating testimony in CALJIC No. 3.11. We presume that the jury understood that CALJIC No. 3.11 applies to incriminating statements used to find a defendant guilty and not to exculpatory statements used in support of defenses and followed the instruction. (People v. Gray (2005) 37 Cal.4th 168, 231.)
Second, to the extent that Trejo’s out of court statement was incriminating because it provided a basis upon which the jury could find defendants guilty of voluntary manslaughter on the theory that they killed Galvan in the unreasonable belief in the need to defend Spooks against imminent peril to life or great bodily injury, no evidence was adduced at trial that either defendant saw a gun or believed that Spooks was in imminent peril. For the same reason, the notion that the recantation could be incriminating because it rejected the out of court statement that was exculpatory does not render the instruction prejudicial.
Third, no reasonable juror, based on the evidence, would have found defendants guilty of voluntary manslaughter and not first degree murder even if the trial court had not instructed the jury with CALJIC No. 3.11. Trejo recanted his statement to the prosecutor and prosecutor’s investigator that he handed a gun to Galvan. Hendrickson, Sorchini, and Mendoza witnessed all or part of Galvan’s shooting. None of those witnesses testified that Galvan or Trejo possessed a gun, and Hendrickson testified that she did not see anything in Galvan’s or Trejo’s hands as they approached Spooks. The evidence in support of a first degree murder conviction against defendants was strong. That evidence demonstrated that defendants and Spooks lured Galvan and Trejo outside in order to kill them. The evidence showed that Galvan, Trejo, and another person beat up Spooks—Galvan’s and Trejo’s enemy—the day before Galvan’s shooting. The night of the shooting, Spooks arrived at the scene with Alfaro and Vindiola. Spooks took up a position across the street from Trejo’s apartment building where Trejo could see Spooks from his apartment. While standing across from Trejo’s apartment building, Spooks manifested an attitude that his presence was “no big thing” despite the previous day’s beating. When Galvan and Trejo approached Spooks, Galvan and Alfaro exchanged words, Alfaro stating, “I’ll smoke your bitch ass”; Vindiola stood up next to his car, apparently from a crouching position; and Alfaro and Vindiola pointed and fired guns in the direction of Galvan and Trejo. Galvan fell to the ground, and Alfaro, Vindiola, and Spooks fled—Alfaro in his SUV and Vindiola and Spooks in Vindiola’s car. Because no reasonable juror would have found defendants guilty of voluntary manslaughter and not first degree murder even if the trial court had not instructed the jury with CALJIC No. 3.11, the trial court’s error was harmless. (People v. Whisenhunt, supra, 44 Cal.4th at p. 213.)
Based on the trial court’s error in instructing the jury on accomplices, Trejo’s testimony that he did not give Galvan a gun was subject to the corroboration rule for accomplice testimony.
II. CALJIC Nos. 3.00 And 17.00
Defendants contend that the trial court erred in instructing the jury with CALJIC No. 3.00 that “[e]ach principal, regardless of the extent or manner of participation is equally guilty.” This error was compounded, defendants contend, when the trial court failed to instruct the jury, sua sponte, with CALJIC No. 17.00 that it must decide each defendant’s guilt separately. Defendants forfeited any objection to CALJIC No. 3.00 by failing to object or to request appropriate clarifying or amplifying language in the trial court. Any error with respect to CALJIC No. 3.00 was harmless, and the trial court’s error in failing to instruct with CALJIC No. 17.00 was harmless.
A. Defendants’ CALJIC No. 3.00 Claim
1. Forfeiture
Defendants contend that we should review their contention with respect to CALJIC No. 3.00 even though no objection to the instruction was made in the trial court because the instruction affected their substantial rights within the meaning of section 1259. Defendants further contend that if they were obligated to object in the trial court, defense counsel were ineffective for having failed to do so.
Section 1259 provides, “Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
The trial court instructed the jury with CALJIC No. 3.00 that “Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit or attempt to commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission or attempted commission of the crime.”
In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163, the court considered whether a challenge to CALCRIM No. 400—the CALCRIM analogue to CALJIC No. 3.00—had been forfeited by the defendant’s failure to object to the instruction in the trial court. The court stated, “Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ [Citations.]” (People v. Samaniego, supra, 172 Cal.App.4th at p. 1163.) The court stated that because CALCRIM No. 400 is generally an accurate statement of law, though misleading in that case, the defendant was obligated to request modification or clarification and, having failed to do so, forfeited his challenge to the instruction. (Ibid.) Here, defendants failed to object to CALJIC No. 3.00 or to request appropriate clarifying or amplifying language. We do not believe “substantial rights of the defendant” were affected by a forfeiture. Accordingly, defendants have forfeited appellate review of their claim. (See ibid.)
CALCRIM No. 400 provides, in pertinent part, “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is [equally] guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.”
Defendants contend that if the failure to object to CALJIC No. 3.00 in the trial court forfeited review of their claim, then defense counsels’ failure constitutes ineffective assistance of counsel. “‘Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.]’” (People v. Foster (2003) 111 Cal.App.4th 379, 383.) “Generally, ... prejudice must be affirmatively proved. [Citations.] ‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) If the defendant fails to make a sufficient showing either of deficient performance or prejudice, the ineffective assistance claim fails. (People v. Foster, supra, 111 Cal.App.4th at p. 383.)
“When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.) “A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The record on appeal does not reveal the reason defense counsel failed to object to the challenged language in CALJIC No. 3.00 or to request that the instruction be modified. It may be that defense counsel did not object to the instruction or request that it be modified because they believed that the evidence demonstrated that Alfaro and Vindiola shared the same mental state. Under the circumstances, any claim of ineffective assistance with respect to the asserted deficiencies is better suited to a petition for writ of habeas corpus. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
Moreover, any such deficiency is nonprejudicial. (In re Fields (1990) 51 Cal.3d 1063, 1079 [a reviewing court need not determine “‘whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed’”] quoting Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Boyette (2002) 29 Cal.4th 381, 430-431 [“We reject defendant’s contention that his counsel were ineffective for failing to object, because even assuming counsel’s inaction was unreasonable, no prejudice resulted”].) Because, as we explain below, any error in instructing with CALJIC No. 3.00 was harmless, defendants were not prejudiced by the failure to object to CALJIC No. 3.00, and thus did not receive ineffective assistance of counsel. (In re Fields, supra, 51 Cal.3d at p. 1079; People v. Boyette, supra, 29 Cal.4th at pp. 430-431.)
2. Harmless Error
CALJIC No. 3.00 may have the potential to mislead the jury. In considering a challenge to CALCRIM No. 400, the court in People v. Samaniego, supra, 172 Cal.App.4th at pages 1164-1165 stated, “The Supreme Court reasoned that ‘when a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s own mens rea. If that person’s mens rea is more culpable than another’s, that person’s guilt may be greater even if the other might be deemed the actual perpetrator.’ ([People v.] McCoy [(2001)] 25 Cal.4th [1111, ] 1117, 1122, italics added.) ‘“[O]nce it is proved that ‘the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea.’”’ (Id. at p. 1118.) When the offense is a specific intent offense, ‘“the accomplice must ‘share the specific intent of the perpetrator’; this occurs when the accomplice ‘knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.’”’ (Ibid.) In the case of murder, the aider and abettor ‘must know and share the murderous intent of the actual perpetrator.’ (Ibid.) [¶] Though McCoy concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator, its reasoning leads inexorably to the further conclusion that an aider and abettor’s guilt may also be less than the perpetrator’s, if the aider and abettor has a less culpable mental state. (See People v. Woods (1992) 8 Cal.App.4th 1570, 1577 [11 Cal.Rptr.2d 231].) Consequently, CALCRIM No. 400’s direction that ‘[a] person is equally guilty of the crime [of which the perpetrator is guilty] whether he or she committed it personally or aided and abetted the perpetrator who committed it’ (CALCRIM No. 400, italics added), while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified.”
Even if the trial court erred in instructing the jury with CALJIC No. 3.00, however, any such error was harmless. We review instructional error with respect to CALJIC No. 3.00 using the harmless error test under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (See People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) Under that test, we find the error harmless if we determine beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Ibid.) As discussed above, the evidence adduced at trial in support of a first degree murder conviction against each defendant was strong and showed that defendants and Spooks lured Galvan and Trejo outside in order to kill them. There is no indication or suggestion that when defendants fired at Galvan and Trejo they harbored different mental states. Accordingly, even if the trial court had not instructed the jury with CALJIC No. 3.00, it is beyond a reasonable doubt that the jury would have convicted defendants of first degree murder. (See People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.)
B. Defendants’ CALJIC No. 17.00 Claim
CALJIC No. 17.00 provides, “You must decide separately whether each of the defendants is guilty or not guilty. If you cannot agree upon a verdict as to [both] [all] the defendants, but do agree upon a verdict as to any one [or more] of them, you must render a verdict as to the one [or more] as to whom you agree.” When more than one defendant is prosecuted in an action, a trial court has a sua sponte duty to instruct the jury with CALJIC No. 17.00. (People v. Mask (1986) 188 Cal.App.3d 450, 457.)
The failure to instruct with CALJIC No. 17.00 is harmless under either the Watson or the Chapman standard of prejudice when the evidence of guilt is strong and no evidence was used improperly against the defendant. (People v. Mask, supra, 188 Cal.App.3d at p. 457.) As discussed above, the evidence of defendants’ guilt of first degree murder was strong, and no evidence was used improperly against either defendant. Moreover, considering the instructions as a whole (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088), another instruction informed the jury of CALJIC No. 17.00’s mandate that it was to consider each defendant’s guilt separately. The trial court instructed the jury with CALJIC No. 2.11.5, in part, that “Your sole duty is to decide whether the People have proved the guilt of each defendant on trial.” (Italics added.) Accordingly, although the trial court failed to fulfill its sua sponte duty to instruct with CALJIC No. 17.00, the error was harmless.
III. Implied Malice Second Degree Murder
Defendants contend that substantial evidence supported an instruction on implied malice second degree murder (CALJIC No. 8.31) as a lesser included offense to first degree murder. The trial court’s failure to so instruct, sua sponte, defendants argue was error. We disagree.
A. Background
The trial court instructed the jury on deliberate and premeditated first degree murder and unpremeditated second degree murder with CALJIC Nos. 8.20 and 8.30, respectively. CALJIC No. 8.30 provided, “Murder of the second degree is also the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.”
During a discussion of jury instruction, the trial court asked the prosecutor if he contended that “3.31 applies, killing resulting from an unlawful act dangerous to life?” The prosecutor said he did not. CALJIC No. 8.31 would have instructed the jury that “Murder of the second degree is [also] the unlawful killing of a human being when: [¶] 1. The killing resulted from an intentional act [or by an intentional failure to act in a situation where a person is under a duty to act], [¶] 2. The natural consequences of the act [or the failure to act] are dangerous to human life, and [¶] 3. The act [or the failure to act] was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When the killing is the direct result of such an intentional act [or the intentional failure to act] it is not necessary to prove that the defendant intended that the act would result in the death of a human being.”
In context, it is clear that the trial court intended to refer to CALJIC No. 8.31 and not to CALJIC No. 3.31. CALJIC No. 3.31, which the trial court gave, concerns the concurrence of an act and specific intent.
B. Application of Relevant Principles
“The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.] That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citations.] To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 744-745.) The existence of any evidence, no matter how weak, will not give rise to a sua sponte duty to instruct on a lesser included offense. (People v. Taylor (2010) 48 Cal.4th 574, 623.)
“Second degree murder is a lesser included offense of first degree murder. [Citations.]” (People v. Blair, supra, 36 Cal.4th at p. 745.) “‘Second degree murder is the unlawful killing of a human being with malice, but without the additional elements... that would support a conviction of first degree murder. [Citations.]’ (People v. Hansen (1994) 9 Cal.4th 300, 307 [36 Cal.Rptr.2d 609, 885 P.2d 1022].) Malice may be express or implied. (People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666].) Malice will be implied ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [Citations.]’ (People v. Dellinger (1989) 49 Cal.3d 1212, 1215 [264 Cal.Rptr. 841, 783 P.2d 200]; see also People v. Knoller (2007) 41 Cal.4th 139, 152 [59 Cal.Rptr.3d 157, 158 P.3d 731] [reaffirming Dellinger’s articulation of the standard].)” (People v. Taylor, supra, 48 Cal.4th at pp. 623-624.)
In support of their contention that substantial evidence supported an instruction on implied malice second degree murder, defendants argue that there was no direct evidence of an intent to kill and offer two interpretations of the shooting that they argue support a finding of a conscious disregard for human life. Vindiola contends that the jury could have found that he acted in conscious disregard for human life because one of the bullets struck Galvan in the buttocks. In support of this argument, Alfaro argues that “even a shooting that results in someone being shot in the head, if not done at point blank range or by an expert marksman, such as in this case, could support a jury finding of either intent to kill or implied malice.” Alfaro argues that Galvan and/or Trejo could have been the intended target and, thus, the jury could have found that he acted in conscious disregard for the life of whomever the bullets struck. Contrary to defendants’ arguments, no reasonable juror could have concluded from the fact that Galvan was struck in the buttocks by one of the bullets and that Trejo was standing near Galvan when Galvan was shot that defendants committed implied malice second degree murder instead of deliberate and premeditated first degree murder. As set forth above, the evidence strongly demonstrates that defendants and Spooks lured Galvan and Trejo outside in order to kill them. Both fired their weapons at Galvan and Trejo. Because instructing the jury with CALJIC No. 8.31 was not supported by substantial evidence, the trial court had no sua sponte duty to so instruct. (People v. Blair, supra, 36 Cal.4th at pp. 744-745; People v. Taylor, supra, 48 Cal.4th at p. 623.)
IV. Cumulative Error
Defendants contend that even if any of the claimed instructional errors individually does not mandate reversal, the cumulative effect of such errors denied them their right to a fair trial. Because we reject or find harmless each of defendants’ contended errors, there is no cumulative prejudicial effect justifying reversal.
DISPOSITION
The judgments are affirmed.
We concur: ARMSTRONG, Acting P. J., KUMAR, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.