Opinion
E071002
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN COREY BROYLES, et al. Defendants and Appellants.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant John Corey Broyles. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant Carmen Nicole Worthy. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. FWV17003995 & FWV17003997) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed. Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant John Corey Broyles. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant Carmen Nicole Worthy. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendants and appellants, John Corey Broyles and Carmen Nicole Worthy, of first degree murder for killing Worthy's cousin, Timothy Morris, 17 years earlier. (Pen. Code, § 187, subd. (a).) Worthy raises four claims of error on appeal: (1) the trial court prejudicially erred by incorrectly stating the law in response to the jury's question; (2) the trial court erroneously denied defendants' motion to dismiss due to the 17 year delay in the prosecution; (3) defense counsel ineffectively moved to dismiss; and (4) the trial court impermissibly imposed fines and court assessments without a determination of defendants' ability to pay in violation of her due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Broyles joins in Worthy's second, third, and fourth contentions, and also asserts the trial court erroneously denied his request for a jury instruction that testimony by a percipient witness to the murder had to be corroborated because that witness was an accomplice.
Unless otherwise noted, all further statutory references are to the Penal Code.
We agree that the trial court incorrectly stated the law when responding to the jury's question but find that the error was harmless. We reject defendants' remaining contentions and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2000, Worthy was living with her cousin, Timothy Morris. Worthy called Morris's mother (Worthy's aunt) and complained that Morris was "cutting the weed" and had not been "bringing what he's supposed to be bringing." Worthy sounded "[a]gitated" and "aggressive." Worthy's aunt thought the call was "very unusual" because she had not heard from Worthy "in a long time." Worthy's aunt "cut [the conversation] real short" because she did not like Worthy's "attitude and her way of talking" and told Worthy that she would talk to Morris.
Around the same time, C.D., who was 15 years old at the time, overheard Worthy say to Broyles something to the effect that she knew someone with "some money coming in" and that she "wanted him dead" and "wanted somebody to do it."
Sometime in the next few days, Broyles left Worthy's apartment with Morris. Later that evening, Broyles entered Worthy's apartment and said he "did it." Worthy responded, "'Are you for real?'" "'Oh, my God.'"
Worthy, C.D., and Broyles went outside to Morris's car. Broyles opened the trunk, and Morris was inside. Broyles said he shot Morris in the head using a shampoo bottle as a silencer. Broyles and Worthy's boyfriend also "had to beat [Morris] up to put him in the trunk" because "he didn't die right off the bat." Morris then made a "loud snoring noise," so Broyles told Worthy to go get knives. Worthy returned with two knives and handed one to Broyles. Broyles stabbed Morris several times, including once in the neck like he was trying to "cut off [Morris's] air circulation." C.D. saw Worthy "thrusting" the knife at Morris, but he was not sure whether she stabbed Morris. Morris stopped making noises. Worthy and Broyles then discussed "what they were going to do with the body and how they were . . . going to do it."
Broyles, his brother, and C.D. drove to the mountains to dispose of Morris's body. Broyles parked the car on a dirt road. C.D. tried to help Broyles lift Morris's body from the trunk, but they could not lift it. Broyles and his brother successfully lifted Morris's body from the trunk and threw it down a hill. Broyles asked C.D. to hit Morris's teeth out with a hammer, but C.D. refused. Broyles poured gas on the body and set it on fire. They then left the scene.
Over 17 years later, in October 2017, the People charged Broyles and Worthy with Morris's murder. (§ 187, subd. (a).) The People alleged Broyles committed the offense with a firearm. (§ 12022.53, subd. (c).) A jury convicted Broyles and Worthy as charged and also found true the firearm allegation.
The trial court sentenced defendants to 25 years to life for Morris's murder. Broyles also was sentenced to a determinate term of 20 years for the firearm enhancement. Without objection, the trial court also imposed on both defendants a $40 court operations assessment (§ 1465.8), a $30 court facilities funding assessment (Gov. Code, § 70373), and a $1,000 restitution fine (§ 1202.4).
Defendants timely appealed.
III.
DISCUSSION
A. The Trial Court's Response to Jury Question No. 4
The jury began deliberating around 2:30 p.m. on May 24, 2018, and ended for the day at 4:00 p.m. The jury deliberated for two hours on May 25, 2018, and two more hours on May 29, 2018. On May 30, 2018, the jurors began their deliberations at 10:00 a.m. At some time between 2:26 p.m., and 3:35 p.m., the jury asked for Jury Question No. 4, which read: If the jury determined that defendant Broyles is found guilty of first degree murder and defendant Worthy is determined to have aided & abetted per CALCRIM No. 401, is defendant Worthy then guilty of first degree murder? At 3:35 p.m., the trial court responded: "If the [p]rosecution proves beyond a reasonable doubt the four elements defined in Calcrim 401 that [d]efendant Worthy aided and abetted the commission of the crime of first degree murder then according to Calcrim 400 she is guilty of the crime of first degree murder. Please review both Calcrim 400 and 401." Twelve minutes later, the jury informed the court that it had reached a verdict.
Worthy claims the trial court's answer to Jury Question No. 4 constitutes prejudicial error. She contends the trial court misstated the law and, in doing so, instructed the jury that it could convict her of first degree murder based on Broyles's mental state without finding that she acted with the requisite mental state. Reviewing Worthy's contention de novo, we agree the trial court's answer to Jury Question No. was erroneous. (People v. Posey (2004) 32 Cal.4th 193, 218.)
We reject the People's contention that Worthy forfeited this argument. We conclude defense counsel's objection was sufficient to preserve the issue for appeal. Counsel objected to the trial court's response to Jury Question #4, and argued the trial court should have only referred the jury to the applicable instructions. Regardless, we may review a claim of instructional error when, as here, a defendant's substantial rights are affected. (§ 1259; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 432 [challenge to similar jury instruction not forfeited under section 1259 even though defendants did not object to instruction in trial court].) Finally, we exercise our discretion to address the issue on the merits because Worthy raises it on the grounds of ineffective assistance of counsel. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310 ["We also confront the issue to avert any claim of inadequate assistance of counsel."].)
"During jury deliberations 'when the jury "desire[s] to be informed on any point of law arising in the case . . . the information required must be given [by the trial court]."' [Citations.] 'However, "[w]here the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information."' [Citation.] Although the trial court need not always elaborate on the standard instructions, the trial court nevertheless has 'a "'mandatory duty' to clear up any instructional confusion expressed by the jury." [Citation.]' This means that a trial court's response to a jury question can be erroneous even if it does not technically misstate the law." (People v. Fleming (2018) 27 Cal.App.5th 754, 766.) As given to the jury, CALCRIM No. 401 stated in relevant part: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. . . ."
CALCRIM No. 400, as given to the jury, read in full: "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 guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."
CALCRIM Nos. 400 and 401 do not mention the differences between first and second degree murder, and neither explains the corresponding mental state required for each offense. Nor does either instruction explain that the jury had to evaluate an aider and abettor's mental state separately from that of a perpetrator. But when "a conviction is based on . . . 'direct' aiding and abetting, the degree of the murder will be dependent on the defendant's own personal mental state, and may be either greater or lesser than the degree of the murder committed by the perpetrator. [Citations.]" (Ortega v. Superior Court (2019) 40 Cal.App.5th 290, fn. 4 (Sept. 24, 2019). "[W]hen 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." (People v. McCoy (2001) 25 Cal.4th 1111, 1122, italics added.)
Because "an aider and abettor's mens rea is personal . . . it may be different than the direct perpetrator's: 'guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state' [citation]; an aider and abettor's 'mental state is her [or his] own; she [or he] is liable for her [or his] mens rea, not the other person's.'" (People v. Nero (2010) 181 Cal.App.4th 504, 514 (Nero).) Thus, an aider and abettor may be convicted of second degree murder while the direct perpetrator is convicted of first degree murder (or vice versa). (People v. McCoy, supra, at p. 1119; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164.)
Two cases Worthy relies on heavily—and which the People do not cite in their respondent's brief—illustrate that the trial court's answer to Jury Question No. 4 was erroneous. (See People v. Nero, supra, 181 Cal.App.4th 504; People v. Loza (2012) 207 Cal.App.4th 332 (Loza).) In Nero, a second degree murder case, the jury asked if it could find an aider and abettor guilty of a greater or lesser offense than the direct perpetrator. (People v. Nero, supra, at p. 517.) The trial court responded by re-reading an instruction that stated, "'Each principal, regardless of the extent or manner of participation, is equally guilty.'" (Id. at p. 519.) The trial court also "told the jurors that an aider and abettor 'can bear no greater responsibility as far as the degree.'" (Id. at p. 520.) The Nero court found the trial court committed prejudicial error because it precluded the jury from finding an aider and abettor guilty of a lesser offense than the perpetrator. (Ibid.) By simply re-reading the "equally guilty" jury instruction, the trial court erroneously instructed the jury that the aider and abettor necessarily was guilty of the greater offense of second degree murder if the jury found the perpetrator was guilty of that offense. (Id. at pp. 517-518.)
In Loza, also a murder case, "the jury specifically inquired whether it was required to, or should, consider the state of mind of an aider and abettor, and asked a question that indicated that the jury believed [the aider and abettor] may have been less culpable than the direct perpetrator." (Loza, supra, 207 Cal.App.4th at p. 352.) Specifically, the jury asked, "'Concerning aiding + abetting does the state of mind of the aider and abettor need/should be considered? If the person aids and abets because they are worried about an attack from the perp[e]trator does tha[t] make a difference when considering the degrees of murder[?]'" (Id. at p. 349.) By responding with only, "'"You must apply the evidence to the law as you have been instructed,"'" (id. at p. 349.) the trial court failed to properly instruct the jury, because the jury's question demonstrated that it "did not understand that the prosecution had to prove [the defendant's] intent as an aider and abettor." (Id. at p. 355.)
Although the jury's confusion was not as apparent as in Nero or Loza, the jury's deliberations and questions suggested that it was uncertain about Worthy's liability. On its first day of deliberations, the jury asked "to review the entire testimony of [C.D.]" and the testimony of another witness "regarding transportation to the crime scene." On May 29, 2018, the jury's third partial day of deliberations, the jury asked to "[r]eview the testimony of [C.D.] that mentions Carmen Worthy." The next day, around 11:30 a.m., the jury asked, "[i]f the jury agrees that defendant Broyles and defendant Worthy were members of [a] conspiracy . . . and defendant Broyles is found guilty by the jury of first degree murder, is it then concluded that defendant Worthy is also guilty of first degree murder?" The trial court answered the question a few hours later, around 2:30 p.m. At 3:35 p.m., the trial court answered Jury Question No. 4.
The record is silent as to when the jury asked Jury Question No. 4.
The jury's questions and the length of their deliberations indicate that "the jury did not find this to be an easy case." (People v. Fuentes (1986) 183 Cal.App.3d 444, 456; People v. Cardenas (1982) 31 Cal.3d 897, 907 [jury deliberations of almost six hours indicates "the issue of guilt is not 'open and shut'"].) The jurors' third and fourth questions also suggest that they had made up their minds about Broyles's guilt, but were uncertain about Worthy's liability. Twelve minutes after the trial court suggested to the jury that it had to find Worthy guilty of first degree murder if it found Broyles guilty of that crime and that she aided and abetted him in committing it, regardless of her own mental state, the jury reached its verdict. We conclude the trial court's answer to Jury Question No. 4 was instructional error.
The People contend the trial court did not err because "the trial court redirected the jury to the appropriate instructions, which correctly stated the law." We disagree. As noted above, the trial court's answer to Jury Question No. 4 was incomplete because it made no reference to Worthy's mental state, the various degrees of murder, or the related instructions (e.g., CALCRIM No. 520). And even if the jury instructions correctly stated the law, the trial court's answer was insufficient here. The jury's questions show that it did not fully understand the instructions, so the trial court had an obligation to clarify the instructions in order to clear up the jury's apparent confusion. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) Although CALCRIM Nos. 400 and 401 generally provide an accurate statement of the law, the trial court's answer to Jury Question No. 4 redirecting the jury to those instructions was misleading in that it did not provide a complete statement of the applicable law, and did not point the jury to all of the instructions necessary to determine whether Worthy was guilty of first degree murder.
Even if the trial court erroneously instructed the jury such that it believed it could find Worthy guilty of first degree murder without finding that she acted with deliberation, any resulting error is harmless beyond a reasonable doubt. (People v. Chapman (1967) 386 U.S. 18.) "[W]e do not have to determine if the verdicts reflect that the jury actually determined that both defendants deliberated and premeditated the attempted murder. Rather, we may review the entire record to determine whether it is clear beyond a reasonable doubt that a rational jury would have made the necessary findings of premeditation and deliberation absent the [instructional] error." (People v. Concha (2010) 182 Cal.App.4th 1072, 1089.) Thus, "our task in analyzing the prejudice from the instructional error is whether any rational fact finder could have come to the opposite conclusion." (People v. Mil (2012) 53 Cal.4th 400, 418; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 666 (Gonzalez); Nero, supra, 181 Cal.App.4th at p. 627.)
We reject Worthy's assertion that we must reverse "unless there is a basis in the record to find that the verdict was based on a valid ground" under People v. Chiu (2014) 59 Cal.4th 155, 167. That standard applies only if the jury was instructed on multiple theories of liability, one of which is inherently invalid. (See id. at p. 162.) In Chiu, for instance, the jury was instructed with the natural and probable consequences doctrine, which the court held cannot support a first degree murder conviction under any circumstances. (Ibid.) The court therefore held the instructional error warranted reversal unless the People could prove that the jury convicted the defendant on another, valid theory of liability for first degree murder. (Id. at pp. 167-168.) Regardless, Chiu did not state "a standard different, and higher, than Chapman's reasonable doubt standard." (People v. Aledamat (2019) 8 Cal.5th 1, 12.) Chiu was "only a specific application of the more general reasonable doubt test." (Ibid.)
In Loza and Nero, the trial courts' instructional errors were prejudicial. In Loza, "virtually all" of the evidence against the defendant was "circumstantial and speculative." (Loza, supra, 207 Cal.App.4th at p. 356.) The evidence the defendant "aided and abetted premeditated murder was fairly weak," and the jury expressed concern that the aider and abettor may have acted out of fear. (Ibid.) The jury asked the trial court "'[i]f the person aids and abets because they are worried about an attack from the perp[e]trator does tha[t] make a difference when considering the degrees of murder[?]'" (Id. at p. 332.) This question thus suggested that it was "consider[ing] a verdict other than first degree murder." (Id. at p. 356.) In other words, it was clear that "the jury did not understand that the prosecution had to prove [the defendant's] intent as an aider and abettor." (Id. at p. 355, italics omitted.)
In Nero, "the evidence was in dispute." (Nero, supra, 181 Cal.App.4th at p. 519.) It was unclear who owned the murder weapon and defendant's "involvement was also disputed." (Ibid.) The record contained evidence that the defendant "may have acted based on a sudden quarrel or heat of passion and provocation." (Ibid.) The defendant testified that the victim called her a "'bull dyke'" and a "'bitch'" while making "crude hand gestures," and threatened and hit the defendant. (Ibid.) More importantly, the jury expressly asked whether an aider and abettor could "'bear less responsibility'" than the perpetrator and therefore be guilty of lesser offense than the perpetrator." (Ibid.) It was "therefore clear that the jury was considering whether to impose a lesser degree or offense on the aider and abettor." (Ibid.) The trial courts' answers to the juries' questions in Nero and Loza, however, foreclosed the juries' ability to render verdicts for lesser offenses that they were explicitly considering.
The record in this case stands in stark contrast to the facts of Nero and Loza. Unlike the juries in those cases, the jury here did not unambiguously indicate that it was considering convicting Worthy of a lesser offense. The jury did not, like the jury in Nero, expressly ask the trial court whether it could convict her of a lesser offense as an aider and abettor while convicting the perpetrator (Broyles) of a greater offense. The jurors here did not ask the trial court, as did the jury in Loza, whether they could consider the mental state of the aider and abettor.
And, unlike the evidence in Nero and Loza, here, "[t]he evidence was such that beyond a reasonable doubt a rational jury would have found that [Worthy] deliberated and premeditated" before committing the murder of Morris. (People v. Concha, supra, 182 Cal.App.4th at p. 1089.) In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the California Supreme Court "identified three categories of evidence relevant to determining premeditation and deliberation: (1) events before the murder that indicate planning; (2) a motive to kill; and (3) a manner of killing that reflects a preconceived design to kill." (Gonzalez, supra, 54 Cal.4th at p. 663.) The Anderson factors are "'descriptive, not normative' . . . are not all required . . . nor are they exclusive in describing the evidence that will support a finding of premeditation and deliberation." (Gonzalez, supra, at p. 663.)
In Gonzalez, "[d]efendant Perla Isabel Gonzalez (Perla) recruited her brother and her boyfriend to assault Roberto Canas-Fuentes (Canas). After Canas fended off a knife attack and gained the upper hand in the fight, Perla handed the boyfriend a loaded rifle. Canas wrested the rifle away and shot the boyfriend dead. The jury convicted Perla of the attempted premeditated and deliberate murder of Canas . . . ." (Gonzalez, supra, 54 Cal.4th at p. 649.) The Gonzalez court held the trial court's instructions to the jury impermissibly informed the jury that it could find Perla "acted with premeditation and deliberation if either the defendant or an accomplice harbored that mental state." (Id. at p. 661.)
The error was harmless, however, because the jury could conclude Perla acted with premeditation and deliberation because there was evidence that "satisfie[d] all three Anderson factors." (Gonzalez, supra, 54 Cal.4th at p. 664.) The events leading up to the attack showed that Perla planned to attack Canas with a deadly weapon "when he was especially vulnerable." (Ibid.) Perla had a motive to kill Canas due to his conflict with her brother. (Ibid.) And Perla "deliberately escalated the violence of the encounter by handing her accomplice a loaded, cocked rifle" during the attack. (Ibid.) The court concluded this evidence established beyond a reasonable doubt that "a rational jury would have found Perla premeditated and deliberated the attempted murder of Canas." (Ibid.)
The Anderson factors are satisfied in this case because the evidence includes evidence of planning, motive, and a manner of killing that reflects a preconceived design to kill. Days before Morris's murder, Worthy called Morris's aunt, sounding "agitated" and "aggressive," and accused Morris of "cutting" marijuana and "not bringing what he[ was] supposed to bring" (i.e., stealing marijuana). This evidence shows that Worthy had a motive to kill Morris. (People v. Kovacich (2011) 201 Cal.App.4th 863, 893 ["evidence showing 'quarrels, antagonism or enmity between an accused and the victim of a violent offense is proof of motive to commit the offense'").
Around the same time, C.D. heard Worthy tell Broyles that she "wanted [someone] dead" and "wanted somebody to do it." Two or three days later, Broyles showed up to Worthy's apartment and said he "did it," indicating that Worthy would know what he meant and that he had done what she wanted. Her soliciting Broyles's help to kill Morris is "activity directed toward, and explicable as intended to result in, [Morris's] killing." (Anderson, supra, 70 Cal.2d at p. 26.) Worthy "was clearly the driving force" behind Morris's murder because "[s]he was the one with the motive and hostility" toward him. (Gonzalez, supra, 54 Cal.4th at p. 665.)
When Broyles showed Worthy Morris's body in the trunk of his car, they realized Morris was not dead, so Worthy went into her apartment, grabbed two knives, gave one to Broyles, and then Broyles stabbed Morris, who died shortly thereafter. This evidence is further proof that Worthy deliberately solicited Morris's death. (See People v. Bolin (1998) 18 Cal.4th 297, 332 [shooting another round at an injured victim in fetal position to ensure his death showed deliberation]; People v. Perez (1992) 2 Cal.4th 1117, 1126 [planning activity shown when defendant obtained a knife from the kitchen of the victim's home]; People v. Thomas (1992) 2 Cal.4th 489, 517 [planning activity shown when defendant returned to his car to get a rifle before committing murders].)
Our review of the record confirms that it would have been "'virtually impossible'" for Worthy to have acted "'without at least a brief period of deliberation and premeditation.'" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 847.) Worthy solicited Broyles to kill someone two to three days before Broyles attempted to do so. After he came into Worthy's apartment and said he "did it," Broyles showed her Morris's body in the trunk of a car. When they realized Morris was not dead, Worthy then aided Broyles in completing the murder by going inside, getting knives, giving one to Broyles, and "thrusting" a knife at Morris as he lay dying in the trunk of a car and while Broyles stabbed him several times. The cause of Morris's death was determined to be a gunshot wound to the head with multiple stab wounds to the head and neck as contributing factors.
We conclude this evidence established beyond a reasonable doubt that a rational jury would have found that Worthy aided and abetted Broyles in the murder of Morris willfully, deliberately, and with premeditation. (Gonzalez, supra, 54 Cal.4th at p. 664.) "[I]t is highly unlikely that a rational jury would have concluded that [Broyles] alone acted with deliberate deadly intent, and convicted [Worthy] of first degree murder based on [Broyles's] state of mind." (Id. at p. 665.) The record would not permit a rational jury to find that Worthy was guilty as an aider and abettor, but only of a lesser offense than Broyles. The only reasonable inference from the record is that Worthy intended to kill Morris or, at a minimum, that she intended to help Broyles kill him. We therefore reject Worthy's contention that her conviction for first degree murder must be reversed.
B. The Delay in Prosecution
Defendants assert their convictions should be reversed because of the 17 year delay between the offense and their prosecution. We conclude the trial court did not err in denying defendants' requests to dismiss the charges for prejudicial delay.
Before trial, defendants moved to dismiss because of the unspecified "fading memories of . . . witnesses." The trial court denied the motions, finding that defendants' "conclusionary statement" that witnesses' memories had faded was unsubstantiated and did not "establish actual prejudice." The trial court explained that, even though the People did not have to justify the delay given defendants' failure to establish prejudice from the delay, "the delay, at best, was an investigatory delay and nothing more."
At the close of the People's case-in-chief, defendants renewed their motions to dismiss. Defendants argued the destruction of Morris's car prevented defendants from comparing it with pictures of the tire marks at the scene of the crime.
The trial court rejected defendants' argument because a detective testified that the tire prints did not match Morris's car, and there was no contemporaneous investigation into whether Morris's car made the tire prints found at the scene. The trial court found that the evidence "actually assist[ed] the [d]efense" because defendants could "argue to the jury that was not the motor vehicle up at the scene of the crime because none of that was investigated at the time, that it could be a poorly [sic] investigation at that time. That they should have at that time looked at the motor vehicle tires and compared them to photographs at the scene, and they did not." Defense counsel then argued in closing, "[H]ere's the most important part. [The detective] looked at the tire tracks and he looked at the tires on the car and he said they weren't a match. . . . That car wasn't in Lytle Creek. Those tires do not match." Citing the detective's testimony, defense counsel further argued that the tire tracks at the crime scene were made by a motorcycle, not Morris's car.
"We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay . . . and defer to any underlying factual findings if substantial evidence supports them." (People v. Cowan (2010) 50 Cal.4th 401, 431.) "Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay." (People v. Catlin (2001) 26 Cal.4th 81, 107.) "[T]he more reasonable the delay, the more prejudice the defense would have to show to require dismissal." (Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853, 858 (Ibarra).) "To avoid murder charges due to delay, the defendant must affirmatively show prejudice." (People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Whether a delay is prejudicial is a factual question that we review for substantial evidence. (People v. Alexander (2010) 49 Cal.4th 846, 874.)
We conclude the trial court did not abuse its discretion in denying defendants' motion to dismiss based on Morris's car's tires being "lost evidence." In light of the testimony at trial, the tires were not necessary for defendants' defense, and the fact that they were not introduced into evidence may have benefitted defendants. Further, even if the tires had been introduced into evidence, it is entirely speculative that they could have been matched to the photographs of the prints at the scene. As another detective explained, the prints "were not of a high quality that could be identified most likely to a tire because the detail had been washed out that would be related to the individualized characteristics." The lack of physical evidence matching the tire prints to Morris's car therefore seems to have benefited defendants, and did not harm them.
The record is unclear whether Morris's car was lost or if defense counsel just failed to locate it. A crime scene specialist testified that the car was still in the sheriff's impound lot, and the trial court stated it had not "been given information that the vehicle is no longer accessible."
Similarly, the trial court found that defense counsel failed to substantiate their conclusory statements that the delay caused by the "fading memories of . . . witnesses" prejudiced defendants. Relying on People v. Hill (1984) 37 Cal.3d 491, 494-499 and Ibarra, supra, 162 Cal.App.3d at p. 858, defendants contend C.D.'s "mixed and impeached" testimony, caused by the delay, was prejudicial.
First, we do not believe Hill or Ibarra is controlling because they conflict with subsequent California Supreme Court cases that unambiguously hold that a defendant must show actual prejudice, not just the possibility of prejudice. (See People v. Cordova (2015) 62 Cal.4th 104, 120; People v. Abel (2012) 53 Cal.4th 891, 909; People v. Alexander, supra, 49 Cal.4th at p. 875; People v. Nelson, supra, 43 Cal.4th at pp. 1250-1251.) Regardless, neither decision helps defendants on the merits.
In Hill, the defendant's main defense was mistaken identification. (People v. Hill, supra, 37 Cal.3d at p. 498.) Three eye witnesses had originally identified the defendant as the perpetrator, but by the preliminary hearing they could only make tentative identifications due to memory loss, and their memories of the underlying events were generally too vague and uncertain to allow adequate cross-examination about who they believed attacked them. (Ibid.) The trial court's finding of prejudice in the prosecution's delay was upheld because the victims' memories of the events may have been sharper had they testified sooner. (Id. at pp. 498-499.)
In Ibarra, the defendant submitted a declaration in support of his motion to dismiss in which he stated that he did not recall the events that led to his arrest and prosecution. (Ibarra, supra, 162 Cal.App.3d at p. 856.) The court held that the trial court erred by denying the motion without balancing whether "the claimed prejudiced against any reason offered for the delay." (Id. at p. 858.) The court did not assess whether the alleged prejudice was sufficient to warrant dismissal. (Ibid.)
Here, unlike in Hill and Ibarra, there is no evidence that C.D. could not recall the core facts of the crime he witnessed. Although his credibility was at times questionable, issues of credibility are exclusively within the province of the jury. (Pen. Code, § 1127 [". . . [I]n all cases that the jurors are the exclusive judges of . . . the credibility of the witnesses."].) The jury was entitled to weigh his credibility and decide whether his testimony was reliable. Defendants have failed to show that his purportedly "faded memory" prejudiced them.
Even if defendants established prejudice from the delay between the crime and their prosecution, the delay was justified. The People did not arrest Worthy or Broyles or file charges against them because the People believed they did not have sufficient evidence without C.D.'s testimony about the crime, which he did not provide until 2017. The People therefore justified the 17-year delay in prosecuting defendants. (See People v. Cowan, supra, 50 Cal.4th at p. 435 ["The prosecution was justified in waiting until it had evidence connecting defendant to the crime scene before arresting him and charging him with murder."]; People v. Nelson, supra, 43 Cal.4th at p. 1256 ["In this case, the justification for the delay was strong. The delay was investigative delay, nothing else."].) Accordingly, we conclude the trial court did not abuse its discretion in denying defendants' motion to dismiss.
C. Ineffective Assistance of Counsel
Defendants argue counsel was ineffective for failing to provide a sufficient offer of proof in support of their pre-trial motion to dismiss. Joined by Broyles, Worthy asserts "[a]ll counsel had to do" was offer specific examples of C.D.'s faded memory and the trial court likely would have granted defendants' motion to dismiss. We disagree.
To prevail on an ineffective assistance of counsel (IAC) claim, the defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; accord, People v. Johnson (2015) 60 Cal.4th 966, 979-980; see People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1148.) A "'"reasonable probability"'" is a probability sufficient to undermine confidence in the outcome of the proceeding. (People v. Mbaabu, supra, at p. 1149, citing Strickland v. Washington, supra, at p. 697.) The defendant bears the burden of demonstrating by a preponderance of the evidence that defense counsel's performance was deficient and it resulted in prejudice. (People v. Centeno (2014) 60 Cal.4th 659, 674.) If we can determine an IAC claim on the ground of lack of prejudice, we need not decide whether defense counsel's performance was deficient. (People v. Mbaabu, supra, at p. 1149, citing Strickland v. Washington, supra, at p. 697.)
Although the trial court denied defendants' motion to dismiss for failing to offer any evidence to support their contention that unspecified witnesses' memories had faded, in denying the motion, the trial court also observed that "the delay, at best, was an investigatory delay and nothing more." This suggests that, even if trial counsel had provided evidence of C.D.'s faded memory, the trial court nonetheless would have denied defendants' motion to dismiss because the delay in prosecution was a justified investigatory delay. (See People v. Nelson, supra, 43 Cal.4th at p. 1256 ["In this case, the justification for the delay was strong. The delay was investigative delay, nothing else."].)
Further, as the People correctly observe, defendants do not "explain how [C.D.'s] memory lapses were material or how they prejudiced appellants." Although C.D. could not recall some specifics of the underlying events, his testimony shows that he was able to recall the critical facts of Morris's murder and the circumstances surrounding it. (See People v. Abel, supra, 53 Cal.4th at p. 909 [no prejudice in delay despite witnesses' ability to recall certain specifics where witnesses testified about central facts of offense].) There is likewise no evidence that C.D.'s recollection and memory of any material fact would have been better had defendants been prosecuted earlier. (See ibid. [no prejudice when "defendant made no showing that [the witness's] recall would have been more specific had she been contacted earlier"].) Because defendants' motion to dismiss in all likelihood would have been denied even if defense counsel proffered evidence of C.D.'s memory lapses, we conclude defense counsel's performance was not deficient. Defendants' IAC claim therefore fails on the merits.
D. Accomplice Testimony
Broyles asserts the trial court erred by refusing to instruct the jury that C.D. was an accomplice to the crime and, accordingly, his testimony had to be corroborated. We conclude the trial court did not err.
"'[W]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,' including the need for corroboration. [Citations.]" (People v. Tobias (2001) 25 Cal.4th 327, 331.) Corroboration is necessary "to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives." (People v. Davis (2005) 36 Cal.4th 510, 547.) "Whether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.)
The undisputed evidence shows that C.D. was not an accomplice as a matter of law. He did not assist Broyles or Worthy in killing Morris in any way. The only time C.D. touched Morris was during an unsuccessful attempt to remove his body from the trunk. "'Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.'" (People v. Pettie (2017) 16 Cal.App.5th 23, 57.) The trial court properly found that C.D. was, if anything, an accessory after the fact—not an accomplice.
E. Fines and Fees
Relying on Dueñas, defendants contend the trial court violated their constitutional rights to due process by imposing a $1,000 state restitution fine (§ 1202.4, subd. (b)(1)) and $70 in assessments, consisting of a $40 court operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373), without first assessing their ability to pay the fine and assessments. The People argue defendants forfeited their objections to the fines and assessments by not objecting to them in the trial court and, regardless, defendants failed to establish that they cannot pay them. We agree defendants forfeited any objection to the restitution fine, but disagree they forfeited their objection to the assessments. We agree with the People, however, that any error that resulted from the trial court's failure to consider defendants' ability to pay the fine and assessments was harmless.
As for the $1,000 restitution fine, defendants forfeited their argument that the trial court impermissibly imposed it. "Even before Dueñas, section 1202.4 permitted the court to consider [a defendant's] inability to pay. [Citation.] The statute mandates that the court impose a restitution fine 'unless it finds compelling and extraordinary reasons for not doing so,' and '[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason.' (§ 1202.4, subd. (c), italics added.) However, the court may consider the defendant's inability to pay "'in increasing the amount of the restitution fine in excess of the minimum fine'" of $300. (People v. Taylor (2019) 43 Cal.App.5th 390, 399.)
Here, defendants did not object or request an ability to pay hearing, even though the court could have considered the issue under the restitution statute. "Consequently, [defendants] forfeited the objection that the court failed to consider [their] ability to pay the restitution fine." (People v. Taylor, supra, 43 Cal.App.5th at pp. 399-400.)
As to the $70 in assessments, because the trial court did not determine whether defendant could pay them, "[u]nder Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless." (People v. Taylor, supra, 43 Cal.App.5th at p. 401.) The People argue defendant forfeited his Dueñas argument and, in any event, the trial court constitutionally imposed the assessments without determining defendants' ability to pay them. We need not address these contentions because we agree with the People that the error, if any, was harmless. We will find Dueñas error harmless if the record shows the defendant cannot prove he or she will be unable to pay the fines, fees, or assessments. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
In determining defendants' ability to pay the fines and fee, the trial court could consider defendants' future earning capacity, including the ability to earn prison wages. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. Hennessey, supra, 37 Cal.App.4th at p. 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay].)
""[E]very able-bodied" prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner's assignment to a paid position "is a privilege" that depends on "available funding, job performance, seniority and conduct." (Cal. Code Regs., tit. 15, § 3040, subd. (k); accord People v. Rodriguez (2019) 34 Cal.App.5th 641, 649.) Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of [defendant's] wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)." (People v. Taylor, supra, 43 Cal.App.5th at p. 402.)
Nothing in the record suggests defendants will not be able to work while in prison. Given that the restitution fine is $1,000 and the assessments total $70, defendants "will have sufficient time to earn these amounts during [their] sentence[s], even assuming [they] earn[] nothing more than the minimum." (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) At $12 a month, the minimum defendants can earn in prison, defendants will have earned $1,070 in seven years, six months in to their decades-long sentences. Even if the $1,000 "restitution fine is outstanding, [defendants] will have at least $5.40 per month available to settle [$70] in fees." (People v. Taylor, supra, 43 Cal.App.5th at p. 402.) On this record, any Dueñas error was harmless beyond a reasonable doubt. (People v. Johnson (2019) 35 Cal.App.5th 134, 139 ["The idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable."]; Jones, supra, 36 Cal.App.5th at p. 1035 [finding Dueñas error harmless because defendant sentenced to six-year term would have ability to pay $300 restitution fine and $70 in assessments from prison wages].)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.