Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD193843, John M. Thompson, Judge.
BENKE, Acting P. J.
Following a jury trial, defendant Deshawn Dundre Broadnax was convicted of two counts of first degree murder (Pen. Code, §187, subd. (a); counts 1, 2); dissuading a witness from testifying (§136.1, subd. (c); count 3); and attempted witness intimidation (§137, subd. (b); count 4). The jury found Broadnax committed the crimes alleged in counts 1 through 4 for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The jury also found Broadnax was a principal in the murders and used a firearm causing death (§ 12022.53. subds. (d), (e)(1).) The jury found the following special circumstances existed: Broadnax was an active participant of a criminal street gang when he committed the murders (§ 190.2, subd. (a)(22)) and he committed more than one murder (§ 190.2, subd. (a)(3)).
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Broadnax raises a number of claims. First, he argues the court erred when it instructed the jury pursuant to CALCRIM No. 362 that it could consider falsehoods he told police about his whereabouts at the time of the murders as evidence of his consciousness of guilt. Second, he argues that, in light of posttrial evidence his principal accuser was an active gang member at the time of trial, an affiliation the witness attempted to diminish while testifying, the trial court should have granted his motion for a new trial. Third, he argues the evidence was insufficient to support a verdict for dissuading a witness.
For the reasons discussed below, we reject Broadnax's claims and affirm the judgment of conviction.
We view the evidence in the light most favorable to the judgment of conviction. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1427.)
A. Background
Broadnax is an active participant in the Lincoln Park Bloods Street Gang (Lincoln Park). Anthony Torian is also a Lincoln Park gang member. Torian was introduced to Broadnax in 2006 by another Lincoln Park gang member. Torian usually "hung out" with Broadnax every day.
At all relevant times, Torian was dating Kimberly Cyr. Broadnax, Torian and Cyr had "hung out" together on occasion.
Skyline is another street gang, and is a rival of Lincoln Park.
B. The Murders
On December 5, 2006, Ahmad Lewis, a Lincoln Park gang member, was murdered in Lincoln Park gang territory. Lewis was associated with Broadnax and Torian. On December 6, 2006, Broadnax and Torian drove to the Meadowbrook Apartments (Meadowbrook), a Skyline hangout, to shoot a member of the rival gang in retaliation for Lewis's death.
While Torian drove Broadnax to Meadowbrook in his car, Broadnax showed him a gun he had under his shirt. When they arrived, Torian parked on the west side of Deep Dell Road, near a liquor store.
Torian entered the liquor store and bought a pack of cigarettes. Torian exited the liquor store and saw Broadnax walking toward a cul-de-sac. Then Torian lost sight of Broadnax. Torian heard approximately eight rapid gunshots. Then Torian saw Broadnax run from the cul-de-sac toward Torian's car. Broadnax got in the passenger side of the car and Torian got in the driver's side. Then they drove away.
During the car ride, Broadnax told Torian he had approached two "dudes" in the cul-de-sac, asked them for a cigarette, and then shot one of them in the head and the other as he tried to run away.
In reporting on the shooting later in the evening, a local television station displayed a photograph of Torian captured on the liquor store's surveillance video.
C. Broadnax Dissuades a Witness, Cyr
In further media reporting on the shooting, Torian's picture was also published in a local newspaper. Torian showed Cyr his photograph in the newspaper and told her that he had not been involved in the shooting. Torian told Cyr they needed "to come up with a story" about going to the movies on December 6, 2006, and stopping at the liquor store on the way.
On December 16, 2006, Cyr attended a party in Mission Beach. During the party, Cyr approached Torian and Broadnax. Broadnax told Cyr to "stick to the story" in a firm voice. Cyr testified that she felt threatened.
On December 19, 2006, Cyr was interviewed by police investigators. Cyr repeated the alibi she and Torian had agreed they would provide police.
On December 20, 2006, Broadnax arrived at Cyr's home. Cyr joined Broadnax outside and observed two men standing beside her car. Broadnax told Cyr in a firm voice: "Remember what we told you. Stick to the story and don't do anything stupid. We know where you live." Cyr testified that she felt scared.
Later, Cyr gave a true account of events to the police. Following Cyr's cooperation with police, she received witness protection services.
D. Broadnax's False Statements to Police
During an initial interview, Broadnax told police he could not remember what he was doing on December 6, and that he had not been in Skyline territory since 2004. At a later interview, Broadnax told police that on December 6, 2006, he had been at home with his mother. Broadnax stated he had not been to Meadowbrook. Broadnax also stated the last time he saw Torian was in September of 2006, and denied ever attending parties and going to the beach with Cyr.
Following Broadnax's arrest, a detective told Broadnax his DNA had been found on a cigarette at the murder scene. Broadnax denied being in the area and again explained that he had been at home.
DISCUSSION
I
Jury Instruction Pursuant to CALCRIM No. 362
Broadnax argues the trial court erred when instructing the jury with CALCRIM No. 362. We reject this argument.
A. Procedural Background
Based on several false statements Broadnax made during interviews with police, the prosecutor requested the court instruct the jury pursuant to CALCRIM No. 362.
Defense counsel objected to the instruction, claiming it was only applicable when false statements are made for the purpose of self protection. Defense counsel argued Broadnax had made false statements in an effort to protect Torian. The court overruled the objection and instructed the jury pursuant to CALCRIM No. 362 as follows: "If the defendant made a false or misleading statements relating to the charged crime, knowing that the statement was false or intending to mislead, that conduct may show an awareness of guilt of the crime, and you may consider it in determining guilt. If you conclude that the defendant made such a statement, it's up for you to decide its meaning and importance. [¶] However, evidence that the defendant made such a statement cannot prove guilt by itself."
B. Waiver of the Right to Raise this Claim on Appeal
Although at trial defense counsel argued that CALCRIM No. 362 did not apply because Broadnax's false statements were made in an effort to protect Torian, on appeal, Broadnax argues use of CALCRIM No. 362 was improper because it permitted the jury to draw irrational presumptions of guilt. Broadnax has waived this claim because he did not object to the court's instruction on the same ground now urged on appeal. (People v. Seijas (2005) 36 Cal.4th 291, 301-302.) "Absent a timely and specific objection on the ground defendant now asserts on appeal, his contention is deemed waived. [Citations.]" (People v. Mitcham (1992) 1 Cal.4th 1027, 1044.) Thus the issue was not adequately preserved for review.
C. The Instruction Pursuant to CALCRIM No. 362 was Proper
Even if the issue had been preserved for review, reversal is not required because the instruction was proper.
An instruction on consciousness of guilt is properly given when evidence supports an inference that prior to trial, the defendant made false statements concerning the charged offense. (People v. Kelly (1992) 1 Cal.4th 495, 531.) Here, during a series of interviews, Broadnax in fact made false statements to police regarding his activities on December 6 and his relationship with Torian. Given Broadnax's false statements concerning the charged crime, the court properly instructed the jury on consciousness of guilt. (Ibid.)
Broadnax nonetheless argues CALCRIM No. 362 allowed the jury to draw a presumption of guilt as to the specific crime charged. The instruction makes no such presumption. The instruction states that while the jury may consider evidence tending to demonstrate an awareness of guilt of the crime, the instruction also expressly advises the jury such evidence is not sufficient in itself to prove guilt. Thus under the express terms of the instruction, evidence of awareness of guilt may only strengthen inferences of guilt that arise from other facts. Rather than creating any presumption of guilt, the instruction expressly limits how evidence of consciousness of guilt may be used.
In sum, although the issue on appeal was not adequately preserved for review, the court nonethelesss properly instructed the jury with CALCRIM No. 362.
II
Denial of the Motion for a New Trial
Broadnax argues the trial court abused its discretion when denying the motion for new trial. We reject this argument.
A. Procedural Background
Torian testified that before Broadnax's trial he had pled guilty to two counts of voluntary manslaughter and admitted the gang allegation and armed enhancements. Torian agreed to testify at Broadnax's trial in exchange for a sentence ranging from 13 years to 26 years 4 months. At trial, Torian testified that he was intimidated in jail, threatened by Broadnax in person and via letter, and afraid of retaliation in jail and in prison.
Following the conclusion of trial, Broadnax filed a motion for new trial based on a newly discovered letter Torian wrote to an inmate and Lincoln Park gang member at the Vista jail. Though the letter does not discuss the crime, throughout the letter Torian used gang terminology and language. Torian also signed the letter with his own Lincoln Park nickname, "Baby Ill." Broadnax argued that the letter, in contrast to how Torian portrayed himself at trial, demonstrates Torian's continuing gang involvement and his need to inflate his importance to another gang member.
Broadnax argued the letter was material and would have changed the outcome of the trial if defense counsel had been able to impeach Torian with the letter. However, the trial court concluded that because Torian "was beaten up badly by [defense counsel] throughout the cross-examination, " the letter "would have made no difference whatsoever." The court denied the motion for new trial.
B. Standard of Review
An order denying a motion for new trial is reviewed under an abuse of discretion standard. (People v. Delgado (1993) 5 Cal.4th 312, 328.) "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)
C. Governing Law-Section 1181
Under section 1181, subdivision (8), a trial court may grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial."
In ruling on a motion for new trial based on newly discovered evidence, the trial court considers (1) whether the evidence and not merely its materiality is newly discovered, (2) whether it is cumulative, (3) whether the evidence is such that it would render a different result probable on retrial, (4) whether the party could with reasonable diligence have discovered and produced it at trial, and (5) whether the evidence to be offered is the best evidence of the matter to be proved. (People v. Beeler (1995) 9 Cal.4th 953, 1004.) Further, as a general rule, " 'evidence which merely impeaches a witness is not significant enough to make a different result probable....' [Citation.]" (People v. Green (1982) 130 Cal.App.3d 1, 11.)
D. Analysis
Broadnax argues the letter was not cumulative and would have provided material proof of Torian's ongoing gang allegiance. However, on cross-examination Torian testified that that he had been identified by a witness as the shooter, that he had sold his car 48 hours after the shooting, and that he had crafted a false alibi with Cyr. Given Torian's testimony on cross-examination and the extensive evidence of Torian's gang involvement, we agree with the trial court: the letter is merely cumulative of other evidence in the trial which tended to impeach Torian.
In sum, the trial court did not abuse its discretion in denying Broadnax's motion for new trial.
III
Instructional Error on Dissuading Count
Broadnax argues the jury instruction as to count 3, dissuading a witness, improperly omitted an element of the offense. We agree the instruction given should have conformed more closely to the allegation set forth in the information. However, we find that the vice in the instruction given was that it was broader than the crime alleged and that on this record the overbreadth was harmless.
A. Procedural Background
Section 136.1, subdivision (a)(1), makes it a public offense to knowingly and maliciously prevent or dissuade "any witness or victim from attending or giving testimony at a trial, proceeding, or inquiry authorized by law." The offense is a felony when accompanied by "force or by an express or implied threat of force or violence." (§ 136.1, subdivision (c)(1).)
Alternatively, section 136.1, subdivision (b)(2), makes it a public offense to attempt to prevent or dissuade a witness from "[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof." Like the offense described in section 136.1, subdivision (a)(2), the offense described in section 136.1, subdivision (b)(2), is a felony when knowingly and maliciously accompanied by "force or by an express or implied threat of force or violence." (136.1, subd. (c)(1).)
The CALCRIM instruction for section 136.1, subdivision (a)(1), provides that a defendant is guilty if "[t]he defendant maliciously tried to prevent or discourage [a named witness] from attending or giving testimony at trial." (CALCRIM No. 2622 (1A).) The CALCRIM instruction for section 136.1, subdivision (b)(2), provides in pertinent part: "The defendant maliciously tried to prevent or discourage [a named witness] from cooperating or providing information so that a complaint or indictment could be sought and prosecuted, and from helping to prosecute that action." (CALCRIM No. 2622 (1C).)
Count 3 of the information alleged that Broadnax violated section 136.1, subdivision (c), by using force to dissuade a witness from testifying at a trial or hearing. However, notwithstanding the fact the information referred to a violation of section 136.l, subdivision (a)(1), the trial court instructed the jury with CALCRIM No. 2622 (1C), the instruction for violation of section 136.1, subdivision (b)(2), dissuading a witness from cooperating with prosecution of a crime.
The jury returned a verdict finding Broadnax "guilty of the crime of DISSUADING A WITNESS FROM TESTIFYING, in violation of Penal Code section 136.1(c), as charged in Count Three of the Indictment."
B. Harmless Beyond a Reasonable Doubt
Where a jury instruction omits an element of an offense, reversal is required unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824].) Here, we do not accept Broadnax's contention that an element of the offense charged was missing from the instruction the jury received. In the context of this case, Cyr's cooperation with prosecution of the murders would necessarily include any testimony Cyr might provide against Broadnax at trial. Thus in this case the instruction was erroneous not because it eliminated Cyr's potential testimony as a predicate for violation of the dissuading statute but because it also permitted conviction based on her nontestimonial cooperation with police. Nonetheless, we will apply the Chapman standard of review.
C. Discussion
Although the trial court should have instructed the jury with a version of CALCRIM No. 2622 (1C), any error was harmless beyond a reasonable doubt. Cyr not only cooperated with the police, she in fact testified at trial as to what Torian initially told her she should tell police and the manner in which Cyr attempted to prevent her from altering "the story." In light of the fact Cyr offered testimony against Broadmax at trial and in light of the fact the jury in fact found Broadmax guilty of dissuading a witness, had the jury been instructed with the narrower provisions of CALCRIM No. 2662 (1A), which instead of predicating a conviction on her broader "cooperation" with the prosecution of Broadnax, would have focused the jury's attention more narrowly on her potential testimony at trial, we have no doubt the jury would have nonetheless found Broadnax guilty of the dissuading alleged in count 3. On this record there is simply no question that Broadnax wanted to prevent Cyr from cooperating with the police and prosecution in any manner, including providing testimony against him at trial. Under these circumstances, any error in the broad manner in which the jury was instructed was harmless beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470, 506.)
IV
Sufficiency of the Evidence to Support Dissuading Count
Additionally, Broadnax argues the evidence was insufficient to support the verdict on count 3. We found ample evidence of Broadnax's guilt.
In reviewing a sufficiency of the evidence claim, the court must consider the whole record and determine whether the record contains substantial evidence of each of the essential elements of the offense. (People v. Johnson (1980) 26 Cal.3d 557, 577.) Substantial evidence to support a verdict is "evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Id. at p. 578.) For a judgment to be set aside for insufficiency of the evidence, it must clearly appear that upon no hypothesis is there sufficient substantial evidence to support a conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
In order to prove a violation of section 136.1, subdivision (c)(1), the prosecution must establish that the defendant had the specific intent to dissuade a witness from testifying. (People v. Young (2005) 34 Cal.4th 1149, 1211.)
Broadnax argues the evidence is insufficient to prove the first element of the offense, that the defendant knowingly and maliciously tried to prevent or discourage Cyr from attending or giving testimony at trial. In light of all the evidence, including Broadnax's repetitive warnings to "stick to the story, " his visit to Cyr's home, Cyr's testimony that she felt scared as result of the encounters, and Cyr's testimony that she participated in the witness protection program, a reasonable trier of fact could have found Broadnax guilty beyond a reasonable doubt.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: HUFFMAN, J.HALLER, J.