Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA049545. Kathleen Kennedy Powell, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Danny Aguilar was convicted by a jury of nine counts relating to the kidnapping, carjacking, robbery, torture, and shooting of Luis Porras. Defendant received a sentence of life without the possibility of parole on count 1 (kidnapping for reward or extortion), plus an additional 25 years to life under section 12022.53, subdivision (d) (personal use of a firearm resulting in great bodily injury). Defendant contends on appeal that: (1) the exclusion of expert witness testimony on eyewitness identification was an abuse of discretion; (2) the limitation on his cross-examination of the victim violated his constitutional right to present a defense and confront witnesses; (3) his convictions on counts 2 (carjacking) and 3 (kidnapping for carjacking) must be reversed for insufficient evidence that the car was forcibly removed from the victim’s immediate presence; (4) the court was required to instruct the jury sua sponte to give close scrutiny to the testimony of an accomplice, Andres Barreda, who received a favorable plea agreement; (5) the prosecutor committed prejudicial misconduct; (6) his trial counsel was ineffective; and (7) the cumulative effect of the errors warrants a reversal. We reject the contentions, modify the judgment, and affirm.
Defendant was convicted of: (1) kidnapping for reward or extortion (Pen. Code, § 209, subd. (a) (count 1)) (all further undesignated statutory references are to the Penal Code); (2) kidnapping for carjacking (§ 209.5, subd. (a) (count 2)); (3) carjacking (§ 215, subd. (a) (count 3)); (4) second degree robbery (§ 211 (count 4)); (5) assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1) (count 5)); (6) aggravated mayhem (§ 205 (count 6)); (7) torture (§ 206 (count 7)); (8) assault with a semiautomatic firearm (§ 245, subd. (b) (count 8)); and (9) dissuading a witness by force or threat (§ 136.1, subd. (c)(1) (count 9)).
In addition to the sentence on count 1, defendant received a consecutive midterm sentence of three years on count 9 (dissuading a witness by force or threat), plus an additional three years under section 12022.7, subdivision (a) (inflicting great bodily injury) and four years under section 12022.5, subdivision (a) (personal use of a firearm). The sentences on the remaining counts (life with the possibility of parole on counts 2, 6, and 7, and midterm sentences on counts 3, 4, 5, and 8) and enhancements were imposed and stayed under section 654. The section 12022, subdivision (a) allegation (principal armed with a firearm) was stricken as to all counts. Although the sentence for count 8 is set forth in the minute order, it is not reflected in the abstract of judgment. The abstract must be modified to record that sentence.
BACKGROUND
At about 8 p.m. on September 10, 2004, Barreda went to the market where he and the victim, Luis Porras, both worked. Barreda pointed a gun at Porras and ordered him into a car driven by Barreda’s brother, Michael Rosales. Barreda and Rosales took Porras to the home of Barreda’s cousin, Hector Rodriguez, where Porras previously had purchased drugs.
Rodriguez, who was angry that Porras had complained about a prior drug purchase, wanted to force Porras to trade his black 1985 Ford Mustang for Rodriguez’s motorcycle. After Porras was brought to Rodriguez’s house, Rodriguez slapped Porras on the face and demanded the key to the Mustang. When Porras replied that the key was at work, Rodriguez knocked Porras to the ground and searched him. Rodriguez found the key, which was hidden in Porras’s sock, and gave it to Barreda with instructions to retrieve the Mustang from the market.
Defendant, a member of Rodriguez’s tagging crew, arrived while Barreda and his brother were retrieving the Mustang. By the time Barreda and his brother returned with the Mustang, Porras had been stripped, handcuffed, gagged, and was being beaten by defendant with a baseball bat. Defendant threatened to kill Porras and harm his family unless he signed the Mustang over to Rodriguez. Defendant continued beating Porras until the bat broke, even though Porras repeatedly agreed to give Rodriguez the Mustang, which was now parked outside Rodriguez’s house.
After holding Porras captive for about two hours, defendant announced that he would drive Porras home and told Barreda that he could not go with them. Defendant and Barreda placed Porras in a white car belonging to Rodriguez. Defendant drove Porras to a deserted area. Porras, who had socks on his hands so as not to leave fingerprints, believed he was going to be killed. Defendant told Porras that this was how Rodriguez took vengeance on those who displeased him. Defendant ordered Porras to exit the car and start walking. As Porras complied, defendant shot him four times in the lower legs before driving away. Defendant returned the gun to Rodriguez’s house and told Barreda that he had shot Porras in the legs.
After being shot and left by defendant, Porras called 911 for help, but his cell phone battery died during the call. Porras then crawled to the road, where he flagged a passing motorist who summoned help.
Los Angeles Police Department Officers Jaime Balderas and Trevin Grant responded to the call at about 1:45 a.m. on September 11, 2004. The officers found Porras sitting on a curb, bleeding, and in pain. Paramedics had also arrived and were treating Porras for gunshot wounds, making it difficult for Balderas to question Porras for more than a few seconds at a time. During the initial two- to four-minute, fragmented interview, Officer Balderas pieced together that a former coworker named Andres (Barreda) had approached Porras at the market to discuss trading a motorcycle for Porras’s Mustang, but that Porras was no longer interested in the trade. At the time, Porras identified only two perpetrators, Barreda and Rodriguez, and told Officer Balderas that Barreda had driven him in the Mustang, first to a house and then to the location where Barreda had shot him.
Officer Grant photographed the blood splatter evidence and recovered four spent Makarov shell casings at the location where Porras was shot. The casings were later identified by a ballistics expert as having been cycled through the same Makarov pistol that was found during a subsequent search of Rodriguez’s house. Also recovered during the search of the house were the broken baseball bat and key to Porras’s Mustang, which was parked in front of the house next door to Rodriguez’s house.
After two surgeries, Porras was released from the hospital. Porras then told police that a third person (later identified as defendant) had driven him from the house in another car (not the Mustang) to the location where he was shot by the third person (not Barreda). On October 1, 2004, Porras was shown a photographic lineup or six pack that did not include defendant. Porras told police that the shooter was not in the six pack, but pointed out some individuals who resembled the shooter. On November 3, 2004, Porras was shown a six pack that contained defendant’s photograph. Porras selected defendant’s photograph and identified him as the person who had beaten and shot him on September 10.
At the preliminary hearing, Porras selected defendant from among the suspects present in the courtroom, including Barreda, Rosales, and Rodriguez, and positively identified defendant as the person who had beaten and shot him. At trial, Porras testified that he had “no doubt” that defendant was the person “who beat [him] with a bat and then took [him] out and shot [him] four times in the legs.”
Barreda corroborated Porras’s eyewitness identification of defendant. Although upon his arrest, Barreda initially had denied any knowledge of the crimes, he later changed his story and, before any plea agreement was discussed, admitted his involvement to the police. He also provided the names of his codefendants and described the details of the incident. At trial, Barreda’s testimony was consistent with Porras’s descriptions and identification of defendant as the person who had beaten and shot him.
The jury was informed that Barreda, who originally was charged with the same nine counts as defendant, had agreed to testify against defendant in return for pleading guilty to one felony count of carjacking, for which he would receive a nine-year prison sentence “instead of life without the possibility of parole.” Additionally, the jury was instructed that to the extent defendant was found guilty of the crimes charged, Barreda must be treated as an accomplice. The jury received the standard accomplice instruction that any testimony of an accomplice that implicates the defendant must be viewed with caution, and may only be used against the defendant if it is corroborated. (CALCRIM No. 335.) The jury was also instructed that in evaluating the credibility of a witness, it was to “consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony,” including but not limited to the witness’s bias or prejudice, personal interest in the case, prior inconsistent statements, admissions of untruthfulness, felony convictions, and any promises of immunity or leniency in exchange for his or her testimony. (CALCRIM No. 226.) Regarding the possible sentence that could have been imposed against Barreda in the absence of a plea agreement, the trial court informed the jury, at the prosecutor’s request, “that only one of the charges against [Barreda] carried” a sentence of life without the possibility of parole.
DISCUSSION
I. Exclusion of Expert Testimony on Eyewitness Identification
Near the close of the prosecution’s case-in-chief, defendant announced his intention to call Dr. Shomer as an expert witness on eyewitness identification. Defendant proposed to have Dr. Shomer explain “the suggestibility of six-packs, . . . the difference between certainty and reliability,” and how a person’s ability to identify a suspect is affected by stress, the presence of a firearm, and the length of time for observation.
The prosecutor successfully moved to exclude Dr. Shomer’s testimony. The prosecutor argued that under People v. McDonald (1984) 37 Cal.3d 351 (McDonald), People v. Plasencia (1985) 168 Cal.App.3d 546 (Plasencia), overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914, and Evidence Code section 352, the trial court possessed discretion to exclude Dr. Shomer’s testimony, given that Barreda’s corroborative pretrial statements and trial testimony provided an independent basis for establishing the reliability of Porras’s eyewitness identification. The prosecutor also contended that the factors to be discussed by Dr. Shomer were not matters unlikely to be known or understood by the jury and, therefore, did not require expert testimony. Additionally, the prosecutor pointed out that CALCRIM No. 315 would sufficiently instruct the jury on the factors to be considered in evaluating the reliability of eyewitness identification testimony.
CALCRIM No. 315, which was given in this case, states: “You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.
In McDonald, the Supreme Court stated that “the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court’s discretion; . . . ‘we do not intend to “open the gates” to a flood of expert evidence on the subject.’ [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court’s discretion in this matter. Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, . . . it will ordinarily be error to exclude that testimony.” (37 Cal.3d at p. 377, fn. omitted.) In People v. Jones (2003) 30 Cal.4th 1084 (Jones), the Supreme Court explained that under McDonald, the “[e]xclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.” (Id. at p. 1112.)
According to People v. Walker (1986) 185 Cal.App.3d 155, 162-163, the trial court’s discretion to exclude an expert witness under McDonald is based on Evidence Code section 352. Under that section, the trial court has broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. (People v. Dyer (1988) 45 Cal.3d 26, 73.) Once a trial court determines under McDonald that “the identification of the defendant is ‘substantially corroborated by evidence giving it independent reliability[,]’ . . . it has impliedly, if not expressly, determined that admission of such expert testimony will unnecessarily consume valuable court time. Thus section 352(a) is properly applied to exclude proffered expert eyewitness identification testimony where the trial court has determined the identification of the defendant has been substantially corroborated by evidence giving that identification independent reliability.” (People v. Walker, supra, 185 Cal.App.3d at pp. 162-163.)
In Plasencia, supra, 168 Cal.App.3d 546, the exclusion of eyewitness expert testimony under McDonald was upheld on appeal because the victim’s pretrial identifications of the defendant were substantially corroborated by the pretrial statements of the defendant’s fellow gang members. (Id. at pp. 554-555.) Defendant seeks to distinguish Plasencia, and argues that Barreda was not an adequate corroborating witness because he was impeached with his prior inconsistent statements and, as an accomplice, his incriminating testimony must be corroborated and viewed with caution. (§ 1111.)
Accomplices, however, are not automatically disqualified from providing corroborative statements or testimony under McDonald. Although the incriminating statements or testimony of an accomplice must be corroborated, the bar is not unreasonably high. The corroborative evidence necessary to support the incriminating testimony of an accomplice “‘“‘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.]” [Citation.]’ (People v. Zapien (1993) 4 Cal.4th 929, 982.) The evidence necessary to corroborate accomplice testimony need only be slight, such that it would be entitled to little consideration if standing alone. (People v. Sanders (1995) 11 Cal.4th 475, 534-535.) It is enough that the corroborative evidence tends to connect defendant with the crime in a way that may reasonably satisfy a jury that the accomplice is telling the truth. (Id. at p. 535.) Corroborative evidence may be entirely circumstantial. (People v. Hayes (1999) 21 Cal.4th 1211, 1271.)” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1163.)
In Jones, supra, 30 Cal.4th 1084, the Supreme Court deemed the corroboration provided by five witnesses to be sufficient under McDonald, even though three of the five witnesses were possible accomplices whose incriminating testimony would require corroboration to support a conviction, and all five witnesses “could be impeached by proof of bias or prior inconsistent statements.” (Id. at p. 1112.) Defendant argues that because Jones specifically mentioned the “cumulative corroborative effect” created by the five witnesses, the testimony in this case of only one accomplice, Barreda, was insufficient to corroborate the victim’s identification of defendant. (Ibid.) We do not read Jones so narrowly.
In Plasencia, supra, 168 Cal.App.3d 546,the pretrial statements of the defendant’s fellow gang members provided substantial corroboration under McDonald, even though the gang members later retracted their statements at trial and the victim, due to the passage of time, could no longer identify the defendant. In this case, the pretrial identifications of defendant were not subsequently retracted, and both Porras and Barreda were able to identify defendant at trial, making this an even stronger case than Plasencia in which to uphold the trial court’s exercise of discretion to exclude Dr. Shomer’s testimony. Although during Porras’s fragmented interview at the scene of the shooting, he initially identified Barreda as the shooter, a rational jury could infer that the discrepancy resulted solely from poor communication because Porras was in pain and simultaneously receiving treatment for his injuries.
Defendant’s reliance upon People v. Walker, supra, 185 Cal.App.3d 155, is misplaced. Walker involved three separate incidents of purse-snatch robberies and one attempted robbery. Although two of the incidents were observed by independent eyewitnesses, there was no direct evidence linking the defendant to each crime. Here, on the other hand, there was only one victim, Porras, who unequivocally identified defendant as the assailant with the bat and the gun. Barreda’s corroboration of Porras’s identification of defendant was substantial and gave it the independent reliability required by McDonald. Accordingly, defendant has failed to establish that the exclusion of Dr. Shomer’s testimony was improper.
In light of our determination that the expert testimony was not wrongfully excluded, we need not reach the issue of prejudice.
II. Limiting the Cross-Examination of Porras
During direct examination, Porras testified that he had used a false name, Juan Alfaro, to obtain a job at the market because he did not have legal papers in his own name. On cross-examination, defense counsel asked whether Porras had a “fake” driver’s license and Social Security number. After the trial court sustained the prosecutor’s relevance objections to these questions, defense counsel asked whether Porras had “fake legal documentation made so that [he] could have a job at Vallarta Market?” The trial court overruled the prosecutor’s relevance objection, stating, “I think he already told us that.” Porras then answered in the affirmative and testified that he had presented the false documentation to the market in order to obtain a job.
On appeal, defendant contends that by sustaining the relevance objections to the questions regarding a fake driver’s license and Social Security number, the trial court unfairly limited his cross-examination of Porras, and precluded him from presenting “evidence of Porras’s disregard for truthfulness in official matters by demonstrating the full details of his obtaining and using false identification.” He argues that the testimony was needed to counteract the prosecution’s efforts “to downplay [Porras’s] initial identification of Barreda as the shooter, as a mistake made while under the stress of injury.” Defendant asserts that because evidence relevant to the credibility of a witness constitutes relevant evidence (Evid. Code, § 210), and because relevant evidence generally is admissible (Cal. Const., art. I, § 28, subd. (d); Evid. Code, § 351), he was unfairly deprived of the right to present a defense and confront witnesses under the Sixth Amendment to the United States Constitution.
The contention lacks merit. Even assuming the excluded testimony was relevant to the credibility of a witness (Evid. Code, §§ 210, 351), a judgment may not be reversed for the erroneous exclusion of evidence unless there was a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 354.) Here, there was no miscarriage of justice. Had Porras testified to possessing a false driver’s license and Social Security card, it would have added little, if anything, to the jury’s evaluation of his credibility because the jury was aware that he had used false legal documents in another person’s name to obtain a job. The excluded evidence was at best cumulative and, under Evidence Code section 352, subject to exclusion for its relatively slight probative value. On this record, we are confident that no conceivable prejudice could have resulted from its exclusion under either People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1967) 386 U.S. 18, 24.
III. Carjacking and Kidnapping for Carjacking
“‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).) “Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole.” (§ 209.5, subd. (a).)
Defendant asserts that the evidence was insufficient to support the carjacking and kidnapping for carjacking convictions because there was no evidence that the Mustang, which was parked out of Porras’s sight during the beating and shooting, was forcibly taken from Porras’s immediate presence. The contention lacks merit.
According to the robbery statute, “[r]obbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211, italics added.) Although carjacking and robbery are distinct crimes, they are closely related and the courts have relied upon robbery cases as instructive with regard to the immediate presence element of carjacking because of their similar elements and statutory language. (People v. Lopez (2003) 31 Cal.4th 1051, 1059-1061.)
“Relying on robbery cases, appellate courts have taken a similarly expansive view of the ‘immediate presence’ requirement. In People v. Medina (1995) 39 Cal.App.4th 643, 649-650 , . . . the court approved a jury instruction defining the immediate presence requirement modeled after the definition applied to the robbery statute. Concluding that the Legislature ‘obviously had the robbery statute in mind when it enacted the carjacking statute,’ the Medina court cited the California Supreme Court’s discussion of the immediate presence requirement in People v. Hayes (1990) 52 Cal.3d 577 . . . . [Citation.] According to People v. Hayes, ‘“‘[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.’” [Citations.]’ [Citation.]” (People v. Coleman (2007) 146 Cal.App.4th 1363, 1370.)
Contrary to defendant’s position, appellate courts have found it unnecessary for the victim to be within eyesight of the stolen property in order to meet the immediate presence element of robbery. In People v. Webster (1991) 54 Cal.3d 411, for example, the immediate presence element was satisfied even though the victim was lured a quarter mile away from his car before he was killed and robbed of his car. (Id. at p. 441.) Similarly, in People v. Harris (1994) 9 Cal.4th 407, the immediate presence element was met even though the victim remained guarded in his car while items were taken from his office building located 35 feet away, and from his house around the corner.
In this case, after Porras was robbed of his car key, his Mustang was driven from the market and parked outside the house where he was being beaten. Defendant argues that the immediate presence element was not met because the Mustang was out of Porras’s sight and beyond Porras’s physical possession and control. A reasonable jury could infer, however, that when Porras was forcibly placed in the white car in order to be driven to a remote location and shot, Porras necessarily came within several yards of his Mustang, which was parked across the street. At that point, but for defendant’s use of force, Porras was not too far away to resist and retain possession of his Mustang. The evidence, therefore, amply supports the jury’s finding that the Mustang was so within Porras’s reach, inspection, observation, or control that he could have retained possession of the car had he not been overcome by violence or prevented by fear from doing so.
At oral argument, defendant asserted that the carjacking was completed when the car was taken from the market parking lot. At that time, he argued, Porras was not present. Defendant concluded that the taking was not in Porras’s immediate presence. However, the victim need not necessarily witness the initial taking of the vehicle in order to satisfy the carjacking statute. If, as here, he is prevented by force or fear from retaining possession of the vehicle once he becomes aware of the theft, the crime of carjacking has been committed. (See Miller v. Superior Court (2004) 115 Cal.App.4th 216, 224 [although the victim did not witness the original taking, the defendant’s use of force to retain the property after the victim confronted him was sufficient to constitute a robbery].)
IV. Instructional Error
Defendant contends that trial courts are obligated to instruct the jury, even in the absence of a request, to scrutinize the testimony of a witness who testifies against the defendant pursuant to a plea agreement. He argues that a special cautionary instruction should have been given on the court’s own motion because Barreda had testified pursuant to a plea agreement under which he would receive a nine-year sentence rather than the requisite sentence of life without the possibility of parole for count 1. (§ 209, subd. (a) [kidnapping for reward or extortion].) We disagree.
“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citations.]” (People v. St. Martin (1970) 1 Cal.3d 524, 531.)
“The question of prejudice must be tested in the light of article VI, section 13 of the California Constitution. (People v. Winston, 46 Cal.2d 151, 161 . . . .) If it is not reasonably probable that a result more favorable to defendants would have been reached if the court had given this instruction, then the error is not prejudicial or reversible error. (People v. Winston, supra, at p. 161 . . . .) ‘The circumstances of each case must determine whether the failure to give cautionary instructions on the court’s own motion constitutes prejudicial error.’ (People v. Sutton, supra, 231 Cal.App.2d 511, 516.)” (People v. Henderson (1967) 255 Cal.App.2d 513, 518.) The “‘failure must be evaluated in light of the totality of the circumstances—including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors—to determine whether the defendant received a constitutionally fair trial.’” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1403, fn. omitted.)
In this case, the jury received standard witness credibility and accomplice instructions. As previously mentioned, the trial court gave CALCRIM No. 315, which instructed the jury on the factors to be considered in evaluating eyewitness identification testimony. In addition, the trial court gave CALCRIM No. 226, which instructed the jury that in evaluating the credibility of a witness, it was to “consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony,” including but not limited to the witness’s bias or prejudice, personal interest in the case, prior inconsistent statements, admissions of untruthfulness, felony convictions, and any promises of immunity or leniency in exchange for his or her testimony. The trial court also gave CALCRIM No. 335, which instructed the jury that, to the extent defendant was found guilty of any of the charged offenses, Barreda was an accomplice to those crimes, and that any testimony of an accomplice tending to incriminate the defendant must be corroborated and viewed with caution.
Defendant argues that the standard instructions were insufficient to inform the jury that the testimony of a witness who testifies as part of a negotiated plea must be given great scrutiny. We are not persuaded. In our view, the instructions, viewed as a whole, coupled with defense counsel’s arguments that Barreda was an accomplice who had lied to protect himself and his family, adequately informed the jury that because Barreda was testifying for the prosecution under a favorable plea agreement, his testimony must be viewed with caution and given close scrutiny.
For the same reasons, even if we assume for the sake of discussion that the failure to give the special instruction was erroneous, any error was harmless. The evidence against defendant, particularly Porras’s testimony, was very strong. On this record, it is inconceivable that any prejudice could have resulted from the failure to give the special instruction, which would have been cumulative of the standard instructions on witness credibility and accomplice testimony.
Defendant also argues that the trial court erred in failing to give CALCRIM No. 336 on its own motion. CALCRIM No. 336 instructs the jury to view the testimony of an in-custody informant with caution and close scrutiny. The instruction is based on section 1127a, subdivision (a), which applies solely to the testimony of an in-custody informant that was “based upon statements made by the defendant while both the defendant and the informant [were] held within a correctional institution.” (§ 1127a, subd. (a).) As Barreda did not testify to any in-custody statements made by defendant, the instruction was inapplicable.
Because any possible error was harmless on this record, we conclude that defendant’s related claim of ineffective assistance of counsel lacks merit.
V. Prosecutorial Misconduct
Defendant contends that the prosecutor engaged in two instances of prejudicial misconduct by: (1) vouching for Barreda’s credibility; and (2) falsely telling the jury that, even without a plea agreement, Barreda was not at risk of a life imprisonment term because the trial court possesses discretion to impose a lesser sentence. The claims are meritless.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ (People v. Morales (2001) 25 Cal.4th 34, 44 . . . .) In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ (United States v. Agurs (1976) 427 U.S. 97, 108 [addressing prosecutorial duty of disclosure].) A prosecutor’s conduct ‘“that does not render a criminal trial fundamentally unfair”’ violates California law ‘“only if it involves ‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ (People v. Farnam (2002) 28 Cal.4th 107, 167.)” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 92.)
Turning to the two claims of misconduct, we note that defendant failed to object or seek an admonition below with respect to either instance. Accordingly, he forfeited these claims for purposes of this appeal. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 92, citing People v. Frye (1998) 18 Cal.4th 894, 970.) He contends, however, that his trial counsel’s failure to object constituted ineffective assistance. In any event, because we find there was no misconduct, defendant’s claim of ineffective assistance of counsel is meritless.
The first alleged instance of misconduct occurred during the prosecutor’s direct examination of Barreda regarding the plea agreement. The prosecutor elicited Barreda’s testimony that he had pled guilty to one count of felony carjacking and would receive a nine-year sentence. When the prosecutor asked whether Barreda had agreed to give “truthful testimony” in exchange for the plea agreement, the trial court sustained the objection that prosecutor was leading the witness. The prosecutor then asked, “What was the agreement with regard to your testimony here today,” to which Barreda replied, “Oh, to tell the truth.”
Defendant contends that “[w]hen the prosecutor twice elicited a guarantee of the truthfulness of Barreda’s testimony to follow, the prosecutor impermissibly vouched for the truthfulness of Barreda’s testimony.” Defendant points out that “[a] prosecutor may not express a personal opinion or belief in a defendant’s guilt ‘where there is substantial danger that jurors will interpret this as being based on information at the prosecutor’s command, other than evidence adduced at trial.’ (People v. Bain (1971) 5 Cal.3d 839, 848.)” (People v. Adcox (1988) 47 Cal.3d 207, 236.)
The contention is meritless. The prosecutor was entitled to have Barreda describe the terms of the plea agreement that required him to provide truthful testimony and, by doing so, the prosecutor did not personally vouch for the truthfulness of the testimony that followed, nor did the prosecutor state a personal opinion or belief in defendant’s guilt. (People v. Bonilla (2007) 41 Cal.4th 313, 337.) We see no reasonable likelihood that any juror would have misunderstood Barreda’s description of the plea agreement in the manner suggested by defendant. Moreover, “[t]he jury could not reasonably have understood [Barreda’s] plea agreement to relieve it of the duty to decide, in the course of reaching its verdict, whether [Barreda’s] testimony was truthful.” (People v. Fauber (1992) 2 Cal.4th 792, 823.)
The second alleged instance of misconduct occurred during the prosecutor’s rebuttal closing argument. Earlier, defense counsel had argued that Barreda was not a credible witness because he was testifying against defendant in exchange for leniency in his own criminal case. Defense counsel also argued that Barreda was only trying to save himself from a sentence of life without the possibility of parole, which “to a 22 year old is a lot of time.” In response to this argument, the prosecutor argued in rebuttal: “And I know counsel keeps saying life without the possibility of parole. There was judicial notice that was only as to one count. And we don’t know what he could have gotten, if he would have gotten more or less, but we know he got nine and it was less than what he was looking at. That doesn’t mean that’s what he would have gotten. I mean, it’s up to the judge what anybody gets. We know what he was looking at and he got less than what he was looking at.”
Defendant attacks the prosecutor’s rebuttal argument as a deliberate attempt to mislead the jury. According to defendant, the prosecutor falsely argued that because the trial court has discretion in sentencing matters, it was not certain that defendant would have received a life sentence in the absence of a plea agreement. Defendant argues that “the prosecutor had to know, or should have known, Barreda faced a sentence of life without the possibility of parole” under section 209 for kidnapping for reward or extortion.
We disagree that the prosecutor’s rebuttal argument was false or misleading. It was not improper for the prosecutor to point out that without the plea agreement, Barreda’s conviction and sentence would depend on the jury’s determination of the charges against him. As the Attorney General correctly noted, “only one of the nine charges that Barreda had originally faced carried a term of life without the possibility of parole. In the absence of a conviction on that particular charge (kidnapping for ransom), Barreda would have faced something less than life without the possibility of parole.” It was not inaccurate for the prosecutor to argue that “we don’t know what he could have gotten, if he would have gotten more or less” than life without the possibility of parole. Similarly, it was not erroneous or misleading for the prosecutor to argue that it is “up to the judge” to impose a sentence. We therefore see no reasonable likelihood that the jury misunderstood the prosecutor’s argument in the manner urged by defendant.
VI. Cumulative Error
For the reasons stated above, we reject defendant’s contention that the judgment must be reversed because of cumulative error.
VII. Additional Court Security Fees
The Attorney General argues that the $20 court security fee under section 1465.8, subdivision (a)(1), which was imposed as to only one count, should have been imposed as to each of the nine counts. We agree. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866; see also People v. Alford (2007) 42 Cal.4th 749, 758, fn. 6 [imposing the $20 court security fee under section 1465.8 as to each count is not so substantial as to be punitive].)
DISPOSITION
The judgment is modified to impose the section 1465.8 court security fee as to all nine counts as discussed in the body of this opinion and to include the sentence imposed for count 8. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation by the superior court clerk. As modified, the judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.
The jury also found true the following special allegations: (1) as to count 1, that the victim suffered bodily injury and was intentionally confined in a manner that exposed him to a substantial likelihood of death (§ 209, subd. (a)); (2) as to counts 1, 2, 3, 4, and 6, that defendant personally and intentionally discharged a firearm, resulting in great bodily injury (§ 12022.53, subd. (d)); (3) as to counts 1-4, 6-7, and 9, that a principal was armed with a firearm in the commission of the offenses (§ 12022, subd. (a)(1)); (4) as to counts 5, 7, 8, and 9, that defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)); and (6) as to counts 7 and 9, that defendant personally used a firearm (§ 1203.06, subd. (a)(1); 12022.5, subd. (a)(1)); and (7) as to count 8, that defendant personally used a firearm (§ 12022.5).
“In evaluating identification testimony, consider the following questions:“Did the witness know or have contact with the defendant before the event?
“How well could the witness see the perpetrator?“What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation?
“How closely was the witness paying attention?“Was the witness under stress when he or she made the observation?
“Did the witness give a description and how does that description compare to the defendant?“How much time passed between the event and the time when the witness identified the defendant?
“Was the witness asked to pick the perpetrator out of a group?“Did the witness ever fail to identify the defendant?
“Did the witness ever change his or her mind about the identification?“How certain was the witness when he or she made an identification?
“Are the witness and the defendant of different races?“Were there any other circumstances affecting the witness’s ability to make an accurate identification?
“Was the witness able to identify other participants in the crime?“Was the witness able to identify the defendant in a photographic or physical lineup?
“The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find that the defendant [is] not guilty.”