Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR549235.
Sepulveda, J.
Defendant was convicted of first degree murder, arson, and other crimes after he shot and killed a woman from whom he had previously purchased pain medication, and then set fire to her home, killing her two dogs. Two people who were with defendant on the night of the murder testified against him at trial. Defendant argues that the trial court erred by not instructing the jury that it was required to determine whether one of the witnesses was an accomplice and, if so, that her testimony required corroboration and must be viewed with caution. We disagree and affirm.
I.
Factual and Procedural Background
This case involves a burglary, robbery, and arson in Sonoma County that resulted in the murder of April Denton (the victim) and a house fire that killed her two dogs in the late night/early morning of January 21 and 22, 2006. The victim lived on Mountain View Avenue in a rural area of Sonoma County near Santa Rosa. She had started taking pain pills after she suffered a back injury in the early 1990s, and she continued to take them for several years. As of late 2003 or early 2004, she was prescribed each month around 300 pills containing morphine.
The victim was unable to work after her back injury. To supplement her income, she occasionally sold her pain medication to two or three people, including defendant, who was introduced to the victim by the her son, a friend of defendant’s. Defendant, who owned multiple handguns and rifles, would go to the victim’s house to purchase the medication.
Defendant started taking pain medication in 1992 after he suffered a shoulder injury, and he became addicted to pain medication in 2004, around the time he got divorced. Defendant later told his girlfriend (Angela Willson) that he eventually consumed up to 20 to 30 pills at a time. Willson testified that in September 2005, defendant “disappeared at his house for two weeks while he was detoxing off of his addiction issues.” He then began attending Narcotics Anonymous meetings, and, although it appeared to Willson that he had relapses, defendant represented to Willson that he was no longer taking pills and was “clean” as of January 2006.
Johanna Persi testified that in January 2006 (when she was 17), she lived at a property she called the “the Funny Farm” on Tolay Creek Road in Sonoma (hereafter referred to as Tolay Creek). The property apparently included multiple buildings, and almost everyone who lived there at the time used drugs. Persi herself was using methamphetamine and marijuana two to three times each day. Steven King also lived at Tolay Creek, and he and Persi became friends, shared a bed together, and saw each other almost every day while they lived there together. Persi used methamphetamine with King, who sometimes provided the drug to her.
King and Persi both testified about events on the night of the murder. King testified that defendant was a friend of his. Persi testified that she had not previously met defendant before the night of the murder. That evening, defendant called King at his home at Tolay Creek and asked where he could get “some pills.” King checked with people he lived with but could not locate anyone who had pills, and he told defendant so when defendant called back later. Defendant then asked King to accompany him to Santa Rosa and help him drive his truck if necessary. He explained to King that he did not want his vehicle seen in front of the house where he was going to get pills, because it was close to where Willson (his girlfriend) lived, and she might get mad if she knew he was going to get pills. King did not know the victim, and he had not previously been to her house. King agreed to drive defendant to Santa Rosa in defendant’s truck.
When defendant arrived at Tolay Creek, he made a brief phone call, but King could not hear what he was saying. King got Persi, and the three of them left to go to Santa Rosa. When asked at trial why King wanted Persi to accompany them, King testified, “Just because. So she wouldn’t have to sit there at the house too. It’s kind of boring just sitting there.” At the time the three left Tolay Creek, King did not believe that he was going to be helping defendant commit a crime, or that they were going to steal pills. Persi testified that she did not know where they were going or what they planned to do, but she went along “[t]o keep Steve company” at his request.
With Persi riding in the back seat, defendant drove to defendant’s home in Sonoma, where they stopped and defendant and King siphoned gasoline out of a truck near defendant’s home and put the gas in defendant’s truck while Persi stayed in defendant’s vehicle. Defendant than continued to drive to Mountain View Avenue in Santa Rosa, using back roads and not the freeway. Persi testified that defendant drove to defendant’s “friend’s house” in Santa Rosa, but she did not know why they were going there.
At some point they stopped on a road in Santa Rosa near the victim’s house, defendant got out of the vehicle, and King got into the driver’s seat. King testified that defendant told King and Persi that he would “ ‘[b]e back in like a half hour or so.’ ” He started to walk toward Santa Rosa Avenue, but King could not see which particular house he was walking toward. It was King’s understanding that defendant “was going to buy some pills from one of his friends.” Defendant never named the friend, and King did not ask because “it’s not my business.” Persi’s understanding was that defendant was “going to go and see his friend.”
King drove around the area, stopped at one point less than a mile from where defendant had been dropped off, and smoked methamphetamine with Persi. After 15 or 20 minutes, King drove back toward Mountain View Avenue, then saw a police car conducting a traffic stop near where he had left defendant. King testified that he figured that defendant was in trouble because he had illegal pills with him, and he was concerned that he himself might get in trouble with the police because he was driving with a methamphetamine pipe in his possession. Persi testified that although defendant had not told her that he had planned to do something unlawful, she also was concerned that defendant “got in trouble.” Because King did not see defendant, and because he did not want to stop if defendant was in trouble, King drove home without defendant.
The prosecution’s theory of the case was that defendant robbed and killed the victim during this time. An autopsy of the victim later revealed that she was shot once in the neck, that she had received blunt force injury to her head in two places (consistent with being hit in the head with a heavy object), that she was probably asleep when she was shot, and that she died before the fire that was later set in her home. A search of the victim’s purse revealed $91.34 in cash, but no envelope containing $1,500 in cash (the amount the victim had in her purse when she was dining with her daughter earlier in the evening).
A Rohnert Park police officer later testified that he conducted a traffic stop unrelated to this case in the area shortly after midnight on January 22. The stop lasted about 17 minutes.
When King and Persi returned to Tolay Creek, King parked defendant’s truck and searched through it out of curiosity, and he ended up taking a large knife from the truck and a handful of rubber gloves. Defendant later called King and told him that he needed to be picked up, but did not specify a location. Defendant called back a short time later and asked to be picked up at a gas station, and King agreed. After King spoke to defendant, he told Persi that defendant had not been arrested and that they had to return and pick him up; Persi agreed to accompany King to pick up defendant. King testified that he asked Persi to accompany him “[b]ecause there’s no stereo in the car and it’s no fun driving by yourself, ” and for no other reason.
King drove the two of them back toward Santa Rosa in defendant’s truck. After stopping to buy cigarettes and a soda at one location, they arrived at a gas station near the victim’s house, where King had agreed to meet defendant. King saw defendant at the back of a building; defendant appeared to be in a good mood, and he was not mad that King had not picked him up where they had previously agreed.
King proceeded to pump gas into defendant’s truck, while Persi remained in the vehicle. King testified that defendant called him to the front of the vehicle and said, “ ‘Look, I just killed somebody and I need help cleaning it up.’ ” Defendant said “that he shot the person and cut their throat.” King testified that defendant’s statement was “kind of like just a mind-blowing experience. You don’t really know what to do.” Defendant later told King that he had taken six morphine pills from the person he had killed. King also saw blood on defendant’s pants. Persi testified that she heard defendant “saying something about his pants, ” and she saw that there was a small amount of what might have been blood on defendant’s lower leg.
Defendant drove King and Persi back toward the victim’s house. According to King, defendant said “that he needed to torch the place, burn it....” King testified that “I still was having a hard time finding, you know, what to say. Basically I pretty much agreed with him and went along with whatever he said.” Persi testified that she was “[s]ort of” unclear why they were driving toward the victim’s house, but for “some reason” she “kind of thought what was happening.”
Defendant drove to a location near Mountain View Avenue, and King offered to siphon gasoline for him there. King testified that he offered to siphon the gas because “I’m pretty good at it. And it was easier if I did it real quick because I wanted to get out of that situation as quickly as possible.” King siphoned the gasoline into two water bottles, while Persi waited in the back seat of defendant’s truck.
The three then drove back to Mountain View Avenue. At one point, defendant asked “what he should do with the dogs.” According to King, Persi said, “ ‘Let them go, ’ ” and King agreed. Persi testified that she heard King and defendant discussing animals, and that defendant was asking King about dogs and “if he should let them go or not.”
When they arrived at Mountain View Avenue, defendant got out of the vehicle, and headed in the same direction he had gone the previous time they had been on the road, this time carrying a water bottle filled with gasoline. King testified that he “[p]retty much... knew what was going to happen.” King drove toward Santa Rosa Avenue, then stopped at a church where he and Persi waited for five or ten minutes, then returned to Mountain View Avenue to pick up defendant, who was waiting where he had been dropped off. Defendant asked to get in the driver’s seat, but he did not say anything about what he had done. King testified that he did not see or hear anything associated with a fire before the three left the area.
People who lived in the area testified that on the morning of January 22, they saw smoke and flames coming from the victim’s bedroom, and they called 911. The victim’s two dogs died in the fire, one of smoke inhalation and the other of unspecified fire-related injuries. A Windsor Fire Protection District battalion chief/fire marshal, who investigated the fire and later testified as an expert in the area of fire investigations, concluded that the fire began in several locations inside the house, and that it was deliberately set using gasoline.
Defendant drove King and Persi back to Sonoma. King noticed that defendant had a small pill bottle. Defendant gave King some pills that King planned to sell to others. Defendant did not discuss what he had done, and instead was “joking about his girlfriend and other situations in life, ” according to King.
The three arrived back at Tolay Creek in the early morning. Persi “pinky promised” defendant not to say anything about that night. Persi testified that at that point, “I wasn’t—wasn’t sure what actually happened yet until I talked to Steve King that night or morning.” Persi went inside her friend’s house, and defendant handed King a plastic grocery store bag containing a gun and a bloody knife and told King to “go throw them in the water.” King threw the items into San Pablo Bay (which is adjacent to Tolay Creek) while defendant changed his clothes and burned the clothes and shoes he had been wearing, along with a pillow. Defendant told King that he had used the pillow to muffle the sound when he shot the victim.
In October 2006, King was taken into custody in connection with an unrelated matter, and he spoke with police regarding this case. King also showed police where he had thrown the items of which defendant had asked him to dispose. Police later searched the Bay and found a.32 caliber loaded handgun and a “flip knife.”
Defendant left Tolay Creek shortly thereafter. Persi testified that she spoke about the events of the night with King shortly after defendant left, and most of what she knew about the victim’s murder was communicated to her by King. Persi also testified that she never witnessed anyone shoot the victim.
A local newspaper carried a front-page story about the victim’s death. A man who described himself at trial as someone who had a father/daughter relationship with Persi but who was not her biological father testified that Persi and King showed him the article and told him that “they were there.” Persi seemed scared, and she told him that she and King “were at this place where this had happened, that they had been asked to take an individual to a house in Santa Rosa to get some—to borrow some money to buy drugs with.” Persi also told him that they had driven to Santa Rosa, returned to Tolay Creek when they saw police activity, then returned to Santa Rosa to pick up defendant after receiving a phone call. Persi told him that “they had gone back to Santa Rosa to pick this person up and on the way back from where—from Santa Rosa, they were told of an incident that had happened inside of the house, and they had made some kind of promise between all parties involved to not tell anybody.” Persi also stated that she had not gone inside the victim’s home, and that she “was just going along for the ride” with King. Persi’s father figure testified that Persi was “a very nice person” who could be easily manipulated.
Police searched defendant’s truck a few days after the murder and found a newspaper featuring the front-page story about the victim’s and her pets’ deaths in the fire. Police also found 11.32-caliber unexpended bullets, water bottles (two of which smelled of gasoline inside), two empty prescription pill bottles, five lighters, rubber gloves, and a shoulder holster for a handgun.
Defendant and King were charged by information with murder and other crimes. King pleaded guilty to arson (Pen. Code, § 451, subd. (b)) and being an accessory after the fact (§ 32), in exchange for being sentenced to eight years in prison and providing truthful testimony.
All statutory references are to the Penal Code.
Defendant thereafter was charged by amended information with murder (§ 187, subd. (a)—count 1), with the special circumstances that it was committed during a robbery and a burglary (§ 190.2, subd. (a)(17)), and an enhancement for personally discharging a firearm (§ 12022.53, subds. (b)-(d)); robbery (§ 211—count 2), with an enhancement for personally discharging a firearm (§ 12022.53, subds. (b)-(d)); residential burglary (§ 459—count 3), with allegations that he personally used a firearm and committed great bodily injury (§ 12022.5, subd. (a)); arson of an inhabited structure (§ 451, subd. (b)—count 4); and two felony counts of maliciously killing an animal (§ 597, subd. (c)—counts 5 & 6).
Defendant testified on his own behalf at trial and denied killing the victim or being present when she was killed. He acknowledged that the victim’s son (a good friend of his) introduced him to the victim in the spring of 2005, and that he obtained pain medication from the victim about once or twice a month. Defendant testified that on January 21, 2006, King told him that he wanted to buy “some pills, ” and defendant told him that he would “introduce him to somebody.” Defendant drove to Tolay Creek to pick up King so they could drive to Santa Rosa. When he arrived, defendant met Persi; he had not expected her to join them. The three drove to the victim’s house, and defendant introduced the victim to King after telling the victim that King was looking for pills. King purchased pills from the victim while Persi waited in defendant’s truck outside. Defendant and King left the victim’s house around midnight, defendant drove King and Persi back to Tolay Creek, and then he dropped them off and drove home. Defendant testified that after he learned about the victim’s death, he suspected that King “might have done something, ” but he did not know for sure because he had not been present. Defense counsel hypothesized during her closing argument to the jury that King and Persi returned to the victim’s house in the early morning hours without defendant and robbed and murdered the victim on their own.
The jury was instructed at the People’s request, pursuant to CALCRIM No. 334, that if jurors determined that King was an accomplice, his testimony must be corroborated and that his testimony should be viewed with caution. Defendant did not object to the instruction, and defense counsel apparently did not request a similar instruction regarding Persi. The jury similarly was instructed at the People’s request, pursuant to CALCRIM No. 707, that if jurors determined that King was an accomplice to defendant’s commission of murder in the commission of a felony (burglary or robbery), his testimony must be corroborated, and that his testimony should be viewed with caution. Again, defendant did not object to the instruction, and there is no indication that he requested a similar instruction regarding Persi.
A jury convicted defendant of first degree murder and all other charged crimes and found true the special circumstances and enhancements. The trial court sentenced defendant to life without parole on count 1, plus a consecutive 25 years to life for the firearm enhancement on that same count, plus a consecutive eight years and eight months (the upper term of eight years on count 4 and one third the midterm of eight months on count 5). The trial court imposed a concurrent term of three years on count 6, and it stayed sentence on the other counts and enhancements. This timely appeal followed.
II.
Discussion
Defendant’s sole argument on appeal is that the trial court erred in not instructing the jury sua sponte to consider whether Persi was an accomplice whose testimony must be corroborated. 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.” The statute further provides: “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.” (§ 1111.) “In order to be an accomplice, the witness must be chargeable with the crime as a principal (§ 31) and not merely as an accessory after the fact (§§ 32, 33). [Citation.] An aider and abettor is chargeable as a principal, but his liability as such depends on whether he promotes, encourages, or assists the perpetrator and shares the perpetrator’s criminal purpose. [Citation.] It is not sufficient that he merely gives assistance with knowledge of the perpetrator’s criminal purpose. [Citations.]” (People v. Sully (1991) 53 Cal.3d 1195, 1227, original italics.)
The trial court has a sua sponte duty to instruct the jury to evaluate whether a witness was an accomplice if the trial evidence and testimony create a triable issue of fact on the issue, and it must instruct the jury that the witness was an accomplice as a matter of law if the evidence establishes that fact. (People v. Zapien (1993) 4 Cal.4th 929, 982; People v. Snyder (2003) 112 Cal.App.4th 1200, 1219.) “In either case, the trial court also must instruct the jury, sua sponte, ‘(1) that the testimony of the accomplice witness is to be viewed with distrust [citations], and (2) that the defendant cannot be convicted on the basis of the accomplice’s testimony unless it is corroborated....’ [Citation.]” (Zapien at p. 982.)
“ ‘ “The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence ‘may be slight and entitled to little consideration when standing alone. [Citations.]’ ” ’ [Citations.] ‘ “Corroborating evidence ‘must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citation.]” ’ [Citations.] In this regard, ‘the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.]’ [Citation.] ‘ “Corroborating evidence is sufficient if it substantiates enough of the accomplice’s testimony to establish his credibility [citation omitted].” ’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.)
As set forth above, and consistent with these legal principles, the jury was asked to determine whether King was an accomplice and was instructed that his testimony must be corroborated and viewed with caution if it was determined that he was an accomplice. (CALCRIM Nos. 334, 707.) Defendant now argues, for the first time on appeal, that the jury also should have been given an accomplice instruction with respect to Persi’s involvement. He claims that he was prejudiced by the error, because if both King and Persi were found to be accomplices, their testimonies could not be used against defendant without corroboration, and (as the jury was instructed), “[t]he evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice.” (CALCRIM No. 334; see also People v. Rodrigues, supra, 8 Cal.4th at p. 1132.)
In a related argument, defendant claims that King was an accomplice as a matter of law and that the trial court erred in failing to so instruct the jury, pursuant to CALCRIM No. 335. He claims, however, that “because any reasonable jury would have found that King was an accomplice, such instructional error may have been harmless.” Indeed, the jury was specifically instructed, pursuant to CALCRIM No. 301 (Single Witness’s Testimony), that “[e]xcept for the testimony of Steven King, which requires supporting evidence, the testimony of only one witness can prove any fact.” (Italics added.) It was therefore clear to the jury that it could not convict defendant based on King’s testimony alone.
The evidence in this case was insufficient to establish a triable issue whether Persi was an accomplice. (People v. Snyder, supra, 112 Cal.App.4th at p. 1219.) It was defendant’s burden to establish by a preponderance of the evidence that she was an accomplice whose testimony required corroboration. (People v. Williams (1997) 16 Cal.4th 153, 247.) In order to prove that Persi was an accomplice whose testimony required corroboration, defendant was required to show that Persi “was chargeable as a principal—not merely as an accessory [after the fact]—with having committed the identical offense charged against defendant himself.” (Snyder at pp. 1219-1220, original italics.) There was no evidence whatsoever that Persi was the actual perpetrator of any crime. There also was little to suggest that she was an aider and abettor. At most, there was some evidence that Persi was aware of, but not that she shared, defendant’s criminal purpose, and there was no evidence that she promoted, encouraged, or assisted defendant in committing his crimes. (Cf. People v. Sully, supra, 53 Cal.3d at p. 1227; Snyder at p. 1220.)
Defendant acknowledges that Persi was not prosecuted in connection with the case, but he hypothesizes that she “got lucky, ” “perhaps because she was a minor.” Defendant goes so far as to speculate that the reason the prosecution chose not to charge Persi was “probably” because it “would have been in big trouble if Persi’s testimony could not be used to corroborate King.” Defendant points to nothing in the record to support this assertion, and we are aware of no support for this theory.
As for the first trip to the victim’s house (when defendant is believed to have killed the victim), defendant contends that Persi knew that King and defendant were “going to obtain pills, either by buying them or by stealing them, ” and that this was sufficient evidence that Persi “knowingly aided and abetted Appellant in a robbery or burglary, ” thereby making her liable under the felony murder rule and the natural and probable consequences doctrine. To the contrary, both King and Persi testified that King asked Persi to accompany him to keep him company, and for no other purpose. Persi explained that although she believed defendant was driving to a “friend’s house” in Santa Rosa, she did not know why they were going there. Persi remained in the back seat during the trip, and there was no evidence presented that she assisted in any way. Although it is true that Persi testified that she was concerned that defendant “got in trouble” after she saw police cars near where King was supposed to pick up defendant, defendant points to no evidence that Persi was aware before they dropped off defendant that he planned to engage in criminal activity. King testified that he believed defendant was going to buy (as opposed to steal) pills, and even defendant testified that the purpose of the trip to the victim’s house was for King to buy (not steal) pills, and that Persi waited in the truck during the transaction.
As for the second trip to the victim’s house (when the victim was apparently already dead and when defendant set fire to her house with her two dogs trapped inside), defendant claims that “Persi rode willingly with King and Appellant to April’s house a second time, and... Persi gave them aid, and assistance, and comfort, knowing that Appellant had gasoline, and knowing that Appellant intended to burn the house, and knowing that Appellant intended to kill everyone in it, including the dogs.” There is conflicting evidence over whether Persi knew during the second trip that defendant intended to commit arson. King testified that he and defendant were outside the truck, and Persi remained inside the vehicle, when defendant told King that he had killed someone and needed “ ‘help cleaning it up.’ ” Defendant, King, and Persi apparently were all in the truck when defendant said that “he needed to torch the place, burn it, ” according to King. Persi testified that she was “[s]ort of” unclear why they were driving toward the victim’s house, but for “some reason” she “kind of thought what was happening, ” and both King and Persi testified that defendant discussed whether to let animals go during the drive. However, there is no evidence that Persi shared defendant’s criminal intent, or assisted him in any way. She remained in the back seat of the truck while King siphoned gasoline, and she apparently told defendant that he should let the animals in the victim’s house go. As the jury was instructed, “a person is not an accomplice just because he is present at the scene of a crime, even if he knows that a crime is being committed and does nothing to stop it.” (CALCRIM No. 334, italics added.)
In short, the trial court was under no obligation to give an accomplice instruction as to Persi. Because we reject defendant’s argument on the merits, we need not consider his alternative argument that his trial attorney provided ineffective assistance of counsel if she was required to request the instruction to preserve the objection for appellate review.
III.
Disposition
The judgment is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.