Opinion
D050592
10-2-2008
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN NATHANIEL CORTEZ et al., Defendants and Appellants. D049716
Not to be Published
I.
INTRODUCTION
A jury found Adrian Nathaniel Cortez and Jahaziel Fausto guilty of conspiracy to commit assault with a deadly weapon or with force likely to produce great bodily injury (Pen. Code, §§ 182, subd. (a)(1), 245, subd. (a)(1) (count 1)) and first-degree murder (§ 187, subd. (a) (count 2)). With respect to count 1, the jury found that each defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). With respect to count 2, the jury found that that each defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), each defendant was a principal in the offense, and at least one principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1), each defendant was a principal in the offense, and at least one principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1), and each defendant was a principal in the offense and at least one principal personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivisions (d) and (e)(1). In addition, with respect to count 2, the jury found that Fausto personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
Cortez waived his right to a jury trial on two prior conviction allegations and admitted that he had suffered a prison prior (§§ 667.5, subd. (b), 668) and a strike prior (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced Cortez to a total term of 76 years to life in prison and sentenced Fausto to a total term of 50 years to life in prison.
On appeal, Cortez claims that there is insufficient corroboration of the testimony of two accomplices presented at trial to support his convictions. Cortez also claims that the trial court erred in instructing the jury not to consider why the accomplices were in custody. Fausto claims that the trial court erred in precluding a potential defense witness from testifying on the ground that the witness refused to submit to full cross-examination, invoking her privilege against self-incrimination. In a related claim, Fausto maintains that the prosecutor violated Faustos constitutional right to present witnesses on his own behalf by improperly causing the witness to invoke her privilege against self-incrimination, leading the trial court to refuse to allow the witness to testify. Fausto also claims that the trial court erred in modifying a jury instruction that Fausto requested concerning imperfect self-defense. Both defendants also raise numerous claims pertaining to their sentences.
We reverse the judgment as to the defendants sentences on count 1, vacate the defendants sentences, and remand the matter for resentencing. We affirm the judgment in all other respects.
II.
FACTUAL BACKGROUND
A. The Peoples evidence
1. The murder
On October 16, 2004, Ignacio Manzo (Ignacio) was at a park in Chula Vista along with several friends and his brother, victim Arturo Manzo (Arturo). Arturo was a member of the Otay gang. At some point during the day, Arturo went to a nearby restaurant. Around the same time that Arturo was walking back from the restaurant to rejoin the group in the park, Fausto approached. Fausto began asking the people in the group, "`Where are you from? " Moments later, as Arturo approached the group, Fausto asked Arturo the same question. Arturo responded by saying, "`Otay." Fausto then began shooting at Arturo with a gun. Ignacio ran for cover. Shortly thereafter, Ignacio saw Fausto leave the scene in a waiting car.
Ignacio agreed with the prosecutor that he understood this question to be "a reference to a gang."
Arturo died as a result of the gunshot wounds he received. An autopsy revealed three gunshot wounds, two in Arturos torso, and one in his arm. Police found a total of five shell casings from a .32-caliber gun within 15 feet of Arturos body.
2. Accomplice testimony
Varrio Chula Vista (VCV) gang members Raymond Pacheco and William Parra testified at trial. Pacheco testified that in October 2004, he was a VCV gang member as were Cortez, whom he knew as "Trusty," and Fausto, whom he knew as "Bullet." Cortez was the leader of the VCV gang. Pacheco stated that in the Fall of 2004, a member of the Otay gang—a rival gang to VCV—shot VCV gang member Benjamin "Rocky" Moreno. On October 16, 2004, several VCV gang members held a meeting at which this shooting was discussed. Cortez, Pacheco, Parra, Fausto, and Jacob Sowder were among the VCV gang members who attended the meeting. At the meeting, Cortez asked whether anyone would be willing to shoot an Otay gang member in retaliation for the shooting of Moreno, and Fausto and Sowder volunteered to do so. Parra agreed to drive. Cortez gave Fausto a gun. As the meeting disbanded, Fausto asked Pacheco if he wanted to go along with Fausto to the shooting. Pacheco responded in the affirmative.
Pacheco testified that he, Parra, Fausto, and Sowder left the meeting and got into Parras car. Parra drove the group around looking for Otay gang members. When they saw several people standing around in a park, Parra parked the car. Pacheco saw Fausto get out of the car and approach the people who were standing in the park. Fausto spoke briefly to the people in the park. Pacheco then saw Fausto fire a gun at Arturo. Arturo fell to the ground, and Fausto fired more shots at Arturo while he was on the ground. Fausto ran back to Parras car. Once in the car, Fausto said that he got "the guy from Otay."
Parra testified that on October 16, 2004 Cortez asked for volunteers to retaliate against the Otay gang for shooting Moreno. Parra stated that Cortez gave Fausto a gun, and that Fausto shot Arturo. Parra stated that he accompanied Cortez to Alec Pojass house a few days after Arturo was shot. Cortez sold Pojas a gun that was similar in appearance to the gun that Parra had seen Cortez give to Fausto on the night Arturo was killed.
3. Gang evidence
Sergeant Eric Thunberg of the Chula Vista Police Department testified as an expert on criminal street gangs. Sergeant Thunberg explained various aspects of gang culture, including the notion that gang members are expected to assist the gang in retaliating against anyone who shows disrespect for the gang. Sergeant Thunberg described the history of the VCV gang, noting that it was first documented as a gang in the 1970s. The Otay gang is a rival gang to the VCV gang. Sergeant Thunberg opined that the charged offenses were committed for the benefit of the VCV gang, to retaliate against Otay for its shooting of a VCV gang member.
B. The defense
Fausto testified at trial. He admitted that he was a VCV gang member and that he had shot Arturo. Fausto denied that there had been a meeting of VCV gang members on October 16, 2004 at which Cortez requested that VCV members retaliate against the Otay gang. Fausto claimed that on the evening in question, he had been planning to attend a party he had learned about from his friend, Karina Lopez. Parra drove Fausto, Pacheco and Sowder around, looking for the party. Fausto saw a group of people in the park and got out of the car to see if anyone in the group knew the location of the party. Fausto testified that Arturo came toward him in an aggressive manner while shouting Arturos gangs name. Fausto stated that he shot Arturo because he believed Arturo was about to physically attack him.
Cortezs sister and brother-in-law testified that Cortez was living in Murietta, 60 miles north of Chula Vista, in the weeks preceding and following the killing. Cortezs sister testified that Cortez attended a family barbeque and babysat for a neighbor in Murietta on the day and evening of the killing.
C. Rebuttal
The People presented evidence that on September 15, 2004 a Chula Vista police officer stopped a car that he suspected had been involved in a different shooting incident. The car was registered to Moreno. Cortez and Moreno were in the car. During that contact with police, Cortez fled the scene.
III.
DISCUSSION
A. Cortezs claims
1. There is sufficient corroboration of the accomplice testimony presented at trial to support Cortezs convictions
Cortez claims that there is insufficient corroboration of the accomplice testimony that the prosecution presented at trial to support his convictions for conspiracy to commit assault with a deadly weapon or force likely to produce great bodily injury (§§ 182, subd. (a)(1), 245, subd. (a)(1)) (count 1) and first degree murder (§ 187, subd. (a)) (count 2).
a. Standard of review and governing law
Section 1111 provides:
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
"An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
"To corroborate the testimony of an accomplice, the prosecution must present `independent evidence, that is, evidence that `tends to connect the defendant with the crime charged without aid or assistance from the accomplices testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] `"[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citation.] [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 1024.) "`Corroborating evidence . . . may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citation.]" (People v. Williams (2008) 43 Cal.4th 584, 636.) Thus, corroborating evidence need not itself constitute "substantial evidence" (People v. Johnson (1980) 26 Cal.3d 557, 578) of the defendants commission of the offense. (E.g., People v. Abilez (2007) 41 Cal.4th 472, 505 (Abilez).)
On appeal, "`The trier of facts determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. [Citations.]" (Abilez, supra, 41 Cal.4th at p. 505.)
b. The accomplice testimony
Pacheco and Parra testified at trial as described in Part II.B., ante. The trial court instructed the jury that Pacheco and Parra were both accomplices to the offenses charged in counts 1 and 2.
c. The corroborating evidence
The People presented considerable evidence that VCV gang member Fausto killed Arturo in retaliation for the Otay gangs shooting of Moreno. Ignacio testified that he witnessed Fausto shoot Arturo. Sergeant Thunberg testified that on October 9, 2004, VCV gang member Moreno had been shot. Thunberg stated that this shooting, as well as "several other . . . shootings" had led him to conclude that there was an active conflict between the Otay gang and the VCV gang around the time Arturo was killed. Thunberg noted that Fausto was a documented member of the VCV gang. Sergeant Thunberg testified that the shooting death of Arturo was "definitely a gang-related crime, specifically in retaliation for a rival gang having shot one of its own members."
The People also presented evidence that Cortez was a member of the VCV gang. Pojas testified that he knew Cortez by the nickname "Trusty." Pojas agreed with the prosecutor that "a lot of VCV gang members" had been to Pojass house, including Trusty. Pojass room contained gang graffiti, including the name "Trusty" created by a VCV gang member. Cortez had a tattoo on the back of his head that said "Chula Vista" and one on his chin that said "CV." Sergeant Thunberg testified that members of the VCV gang often have tattoos identifying themselves as members of the gang. The People also introduced in evidence a jailhouse note that Cortez wrote on or about June 8, 2005 signed "Trusty. VCV GLS." Sergeant Thunberg testified that the "Grand Locos" were a "clique" within the VCV gang, and that members of that clique often used the abbreviation "VCV GLS" to refer to themselves.
Evidence that the shooting of Arturo was a retaliatory killing committed by a VCV gang member and that Cortez was a VCV gang member, although not by itself sufficient evidence of Cortezs guilt, corroborated accomplice testimony implicating Cortez in counts 1 and 2. (People v. Vu (2006) 143 Cal.App.4th 1009, 1022 [evidence that defendant was gang member, that the motive for the killing was retaliation for a rival gangs killing of defendants fellow gang member, and that the prosecutions gang expert testified that the crime was committed at the direction and for the benefit of a criminal street gang, was among the evidence corroborating accomplice testimony]; People v. Szeto (1981) 29 Cal.3d 20, 28 [accomplices testimony was "corroborated by independent evidence that defendant had a motive to aid the killers in escaping punishment, namely, to assist fellow [gang members] in gaining revenge upon [rival gangs] for the earlier slaying of [fellow gang member"]; accord People v. Hernandez (2004) 33 Cal.4th 1040, 1049 ["Evidence of the defendants gang affiliation—including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime"].)
In addition to the gang evidence linking Cortez to the charged crimes, the People presented evidence connecting Cortez to the murder weapon. Pojas testified that Cortez sold him a firearm a little less than a month after Arturo was killed. The People presented ballistics evidence that suggested that the firearm Cortez sold to Pojas was used to kill Arturo. Cortezs possession of the weapon after the killing constitutes evidence connecting him to the charged offenses. (See People v. McFarland (1971) 17 Cal.App.3d 807, 823, disapproved on another ground by Donald L. v. Superior Court (1972) 7 Cal.3d 592, 598 [evidence that defendant was present when accomplice attempted to sell murder weapon after murder corroborated second accomplices testimony that defendant participated in robbery/murder, stating, "possession of part of the loot and the murder weapon is proper and sufficient corroboration [citation] involving an association near the time of the offense [citation]"]; accord People v. Horning (2004) 34 Cal.4th 871, 901 [evidence that police found parts of murder weapon on defendants property after the murder constituted evidence tending to demonstrate that defendant was the killer].) Further, Sergeant Thunberg testified that Cortez "told [Pojas] to lie about the gun if [Pojas] was caught with it because it was the gun that Bullet [Fausto] from VCV had used to shoot Shrek [Arturo]. . . ." Evidence that Cortez knew that Fausto had used the weapon to shoot Arturo and that Cortez urged Pojas to lie to the police regarding this information increased the corroborating effect of the evidence as to both counts 1 and 2.
Arturo was killed on October 16, 2004. Police discovered the firearm at Pojass residence on November 10, 2004. Pojas testified that Cortez had sold him the firearm earlier that day.
The People presented evidence that Arturos gang moniker was "Shrek" and that Faustos was "Bullet" or "Little Bullet."
Finally, a June 8, 2005 jailhouse note written by Cortez constitutes evidence corroborating Cortezs consciousness of guilt evidence. Cortez wrote the note while he was incarcerated after having been arrested in this case. Cortez intended that the note be passed to fellow VCV gang member Mark Cabuzuela. In the note, Cortez wrote, "[I]F THE COPS GO ASK YOU ANY [QUESTIONS] TO [sic] SAY I WAS GONE OUT OF TOWN AND YOU DONT KNOW NOTHING[.] JUST KEEP YOUR MOUTH SHUT . . . . MUCH LOVE AND STAY CEE VEED UP FROM THE FEET UP! STAY STRONG TRUSTY VCVGLS."
This portion of the note was redacted at trial.
Sergeant Thunberg testified that members of the VCV gang often used the letters "C" and "V" in referring to the VCV gang.
Pojas testified that Cabuzuela had come to Pojass house along with Cortez on the day Cortez sold the gun to Pojas. The jury could have reasonably determined that in instructing Cabuzuela to keep his "mouth shut" and urging Cabuzuela to tell the police that Cabuzuela did not "know nothing," Cortez evinced a consciousness of guilt in that he was encouraging Cabuzuela to impede the investigation into Arturos killing. (See People v. Hunt (1982) 133 Cal.App.3d 543, 560 ["letters [authored by defendant] were probative in that by urging his fiancee to give false testimony they showed defendants consciousness of guilt"].) The letter constituted proper corroborating evidence of Cortezs consciousness of guilt for the offenses charged in counts 1 and 2. (See People v. Avila (2006) 38 Cal.4th 491, 563 [evidence of a defendants consciousness of guilt may properly be considered as corroborative of an accomplices testimony].)
In sum, the record contains more than "slight" evidence (People v. Richardson, supra, 43 Cal.4th at p. 1024) tending to corroborate Parras and Pachecos testimony connecting Cortez to the offenses charged in counts 1 and 2. We conclude that there is sufficient corroboration of the accomplice testimony presented at trial to support Cortezs convictions on both counts.
2. The trial court did not err in instructing the jury, pursuant to CALCRIM No. 337, regarding the fact that Parra and Pacheco were in custody
Cortez claims that the trial court erred in instructing the jury, pursuant to CALCRIM No. 337, regarding the fact that witnesses Parra and Pacheco were in custody at the time of the trial. Cortez claims that under the circumstances of this case, CALCRIM No. 337 conflicted with another jury instruction that directed the jury to view incriminating accomplice testimony with caution.
We review Cortezs claim de novo. (See People v. Posey (2004) 32 Cal.4th 193, 218 ["The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law"].)
a. Factual and procedural background
The trial court instructed the jury pursuant to a modified version of CALCRIM No. 337 as follows:
"When William Parra and Raymond Pacheco testified, they were in custody. Do not speculate about the reason. The fact that a witness is in custody does not, by itself, make a witness more or less believable. Evaluate the witnesss testimony according to the instructions that I have given you."
The trial court also instructed the jury pursuant to a modified version of CALCRIM No. 335 in relevant part as follows:
"Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence."
The trial court provided the jury with additional instructions regarding how to evaluate a witnesss testimony. For example, the court instructed the jury pursuant to a modified version of CALCRIM No. 316 as follows:
"If you find that a witness has been convicted of a felony, you may consider that fact in evaluating the credibility of the witnesss testimony. The fact of a conviction does not necessarily destroy or impair a witnesss credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.
"If you find that a witness has committed a crime or other misconduct, you may consider that fact in evaluating the credibility of the witnesss testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witnesss credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
b. Governing law
"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]" (People v. Bragg (2008) 161 Cal.App.4th 1385, 1395-1396.) "An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words." (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.)
c. Application
Cortez cites no authority, and we are aware of none, that indicates that the trial court should not instruct with CALCRIM No. 337 in cases in which accomplice witnesses testify. CALCRIM No. 337 informs the jury that the mere fact that a witness is in custody "does not by itself make a witness more or less believable." (Italics added.) CALCRIM No. 337 thus expressly limits its application to the jurys consideration of the custodial status of a witness. Further, CALCRIM No. 337 instructs the jury to apply the other jury instructions that the court provides in evaluating a witnesss testimony. Under these circumstances, there is no reasonable possibility that the jury understood CALCRIM No. 337 to prevent or restrict it from applying CALCRIM No. 335, which instructed the jury to treat Parra and Pachecos incriminating accomplice testimony with caution.
Cortez maintains that People v. Carrera (1989) 49 Cal.3d 291 (Carrera) and People v. Williams (1988) 45 Cal.3d 1268 (Williams), disapproved on another ground by People v. Guiuan (1998) 18 Cal.4th 558, support his claim. We disagree. The instruction at issue in Williams provided, "There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial. [¶] You must not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted." (Williams, supra, 45 Cal.3d at p. 1313.) The Williams and Carrera courts stated that a trial court should not give this instruction in cases in which the potential perpetrator is a witness for either the prosecution or defense. (Williams, supra, 45 Cal.3d at p. 1313; Carrera, supra, 49 Cal.3d at p. 312.)
Carrera involved a version of CALJIC No. 2.11.5. nearly identical to that at issue in Williams. (Carrera, supra, 49 Cal.3d at p. 312, fn. 12.)
A reasonable juror could interpret a prohibition on considering why a potential perpetrator is not being prosecuted as conflicting with an instruction to view an accomplices testimony with caution. For example, a juror might reasonably view an accomplices testimony with distrust on the ground that the accomplice was allowed to plead guilty to a lesser charge, but understand CALJIC No. 2.11.5 to preclude such consideration. (Carrera, supra, 49 Cal.3d at pp. 312-313 ["jury might have understood [CALJIC No. 2.11.5] to preclude it from considering whether [grant of immunity] gave [witness] a strong incentive to testify favorably to the prosecution"].) We see no similar potential for conflict with respect to CALCRIM No. 337 in cases involving testifying accomplices, particularly in light of the restrictive language employed in CALCRIM No. 337, discussed above.
Accordingly, we conclude that the trial court did not err in instructing the jury pursuant to CALCRIM No. 337.
B. Faustos claims
Cortez joins in Faustos claims, to the extent that he would benefit thereby. We afford such review whenever applicable.
1. The trial court did not err in precluding a potential defense witness from testifying on the ground that the witness refused to submit to full cross-examination, invoking her privilege against self-incrimination; the prosecutor did not improperly cause the witness to invoke the privilege
Fausto claims that the trial court erred in precluding a potential defense witness, Karina Lopez, from testifying, on the ground that Lopez refused to submit to full cross-examination by virtue of her invocation of her privilege against self-incrimination. We review independently whether the trial court properly determined that Lopez could validly invoke the privilege against self-incrimination. (See People v. Seijas (2005) 36 Cal.4th 291, 304 (Seijas).) We apply the abuse of discretion standard of review in determining whether the trial court erred in precluding Lopez from testifying on the ground that she indicated a refusal to respond to the proffered cross-examination. (See People v. Price (1991) 1 Cal.4th 324, 421 (Price), superseded by statute on another ground as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165 [trial court did not "exceed its discretion" in precluding witness from testifying where witnesss unwillingness to answer certain questions on cross-examination "would impair effective cross-examination"].)
In a related claim, Fausto contends that that the prosecutor improperly caused Lopez to invoke the privilege against self-incrimination, thereby frustrating Faustos constitutional right to present witnesses on his behalf. We assume for purposes of this decision that the de novo standard of review applies to this claim. (Seijas, supra, 36 Cal.4th at p. 304 [stating independent review standard of review "`comports with this courts usual practice for review of mixed question determinations affecting constitutional rights, " quoting People v. Cromer (2001) 24 Cal.4th 889, 901].)
a. Factual and procedural background
During the trial, outside the presence of the jury, Faustos counsel indicated that he intended to call Lopez as a witness. Faustos counsel stated that the prosecutor had informed him that Lopez had been a witness in a separate murder trial, and that she had "changed her story between what she told the police during [an] interview and what she ultimately said in the witness box." Faustos counsel requested the courts assistance in "having Ms. Lopez counseled before she is called to testify." The trial court indicated that it would appoint counsel for Lopez.
Later that afternoon, outside the presence of the jury, Lopezs counsel informed the court that Lopez was willing to testify about the events in this case. Lopezs counsel stated that, in his opinion, Lopez had no privilege against self-incrimination with respect to the events at issue. However, Lopezs counsel stated that the prosecutor had informed him that the prosecutor intended to ask Lopez, "`Isnt it true that you committed perjury in this previous case? " Lopezs counsel stated that he believed Lopez had a Fifth Amendment right not to answer that question. The court indicated that it agreed with counsel.
The trial court then conferred with the parties regarding how to proceed. The court referred to several relevant appellate cases and summarized the issue as follows:
"Even though [Lopez] has no privilege as to this case, issues about her credibility are an issue whenever a witness testifies. So if she gave false testimony in some earlier case, that would be relevant as to whether or not the jury would believe her in this case. [¶] . . . [¶] And the question becomes if that testimony about her false testimony in the other case would incriminate her, whether she has a Fifth Amendment right, she does [ sic ]. [¶] The question then becomes since we know that ahead of time, how do we treat that? Do we allow her to assert the Fifth in front of the jury and then tell the jury that they can consider that in deciding the credibility of this witness; or do we say, when we get to that part, if she refuses to answer, then strike the rest of her testimony?"
Cortezs counsel suggested that the court allow Lopez to testify, and then allow the prosecutor to impeach her by presenting additional witnesses to testify regarding her testimony in the prior murder case. The court rejected this suggestion, noting that it would necessitate "a trial within a trial." The court discussed several related issues with counsel, including whether the court should instruct the jury regarding Lopezs unavailability and whether the court would allow Lopez to answer some questions, but not others. At the conclusion of this discussion, the court indicated that it would review the relevant case law and revisit the issue the following day.
Later that same day, the court had another discussion with counsel during which the court further described case law relevant to the issue of Lopezs anticipated invocation of her Fifth Amendment rights. The court stated that it was "wrestling with . . . how to deal with the defendants right to present a defense when the defense knows that . . . as to a matter of impeachment, the witness is going to assert the Fifth . . . ."
The following day, outside the presence of the jury, Faustos counsel clarified that Lopez would corroborate Faustos testimony that he was en route to a party on the night of the killing. The prosecutor stated that he intended to ask Lopez whether, in the previous case, she had given statements to the police naming the defendant in that case as the shooter, but then testified at the trial in that case that the defendant was not the shooter, despite being shown a videotape of her prior statement to the police.
The court had additional discussions with the prosecutor, Lopezs counsel, and Faustos counsel regarding the exact nature of the prosecutors proposed cross-examination of Lopez, and whether the prosecutors questions would give rise to a valid invocation of Lopezs privilege against self-incrimination. During this discussion, the court stated that the prosecutor would not be allowed to ask, "Isnt it true that when you were placed under . . . oath before, you lied as to who the shooter was?" The court reasoned that this question was unnecessary to effectively impeach Lopez, and would clearly require Lopez to assert her privilege against self-incrimination in front of the jury. The court decided that the safest way to proceed in light of these concerns would be to hold a pretestimonial hearing, outside the presence of the jury, at which the prosecutor could conduct the proposed cross-examination.
At the hearing, the prosecutor asked Lopez whether she remembered being involved in the prior case. Lopez stated that she refused to answer "any questions that you have that is [sic] not involved with this court case." The court asked Lopezs counsel, "Whether she was involved in that case is not a matter of which she has a Fifth Amendment privilege, is it?" Lopezs counsel responded, "Probably not. I have instructed her not to answer any questions about the [prior] testimony. That is why she answered the way she did. But whether she was . . . involved in it, I would agree I dont think is privileged." The court instructed Lopez to answer the prosecutors question, and Lopez responded, "Yes, I was."
The prosecutor proceeded to ask Lopez whether she had been present at the scene of the murder in the prior case, whether she had given police a statement regarding that murder, and numerous other questions regarding Lopezs statement to the police, including whether Lopez had identified the shooter to police. Lopez refused to answer any of these questions, asserting her Fifth Amendment right not to incriminate herself.
The prosecutor asked Lopez whether she remembered attending the previous trial, being asked questions about the murder at issue in that case, and having taken an oath prior to testifying. Lopez responded in the affirmative to all of the prosecutors questions. The prosecutor asked Lopez whether, during the previous trial, she had denied that the defendant in that case was the shooter, and denied that she had seen the defendant with a gun. The prosecutor also asked Lopez whether, during the previous trial, "she [d]enied [her] statements that [the defendant] said that he was going to shoot the victim." The prosecutor asked Lopez whether she denied having made a statement to the police, and whether she remembered that the videotape of her statement was played at the trial. Lopez refused to answer any of these questions, again asserting her constitutional right not to incriminate herself.
After the close of questioning, the court stated, "Based upon the witnesss refusal to answer the questions which would be used to impeach her credibility in this trial, under People v. Apodaca [(1993)] 16 Cal.App.4th 1706 [(Apodaca)], I am of the view that this witness should not be allowed to testify."
Faustos counsel stated that he opposed the courts proposed ruling, arguing that Apodaca was distinguishable because in Apodaca, "everything arose . . . out of the same case," while in this case, Lopez was not "in jeopardy for anything to do with this case" The court responded:
"Sure she is. She could be prosecuted for perjury in this case if she is lying. And that is going to be the argument that the DA is going to make: If she lied in the first case, she lied in this case, and she is nothing more than a person that goes around lying for gang members. [¶] And her testimony is material because the defendants testimony that he went this way and that way because he was on the conversation [sic] with her, if the jury believes that, and that is why this witness is being called to support his claim that that is what happened, then it is material to the case, making it very well an act of perjury."
Faustos counsel argued that since Lopez was "already in jeopardy of that sort of prosecution as a result of the testimony that shes already given, then really there is no jeopardy here in answering the questions that the prosecutor asked her." In responding to this argument, the court noted that the prosecutor had asked Lopez whether she was present at the shooting at issue in the previous case. The court continued:
"So the answer to that question, she has asserted her privilege. Lets say, for example, that she wasnt there, she told the cops that she was, then she got on the witness stand and said she was. And as it[] turned out, she wasnt, wouldnt the answer to that question incriminate her? She not only gave false information to the police officer who investigated the case, she then got on the witness stand and under oath told another lie."
b. The trial court did not err in concluding that Lopez validly invoked her right not to incriminate herself
The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." (See also Cal. Const., art. I, § 15 ["Persons may not . . . be compelled in a criminal cause to be a witness against themselves"].)
In Seijas, supra, 36 Cal.4th at page 304, the California Supreme Court outlined the case law interpreting these provisions:
"It is a bedrock principle of American (and California) law, embedded in various state and federal constitutional and statutory provisions, that witnesses may not be compelled to incriminate themselves. In an oft-cited case, the high court stated that this privilege `must be accorded liberal construction in favor of the right it was intended to secure. (Hoffman v. United States (1951) 341 U.S. 479, 486.) A witness may assert the privilege who has `reasonable cause to apprehend danger from a direct answer. (Ibid.; [citation].) However, `The witness is not exonerated from answering merely because he declares that in doing so he would incriminate him—his say-so does not of itself establish the hazard of incrimination. (Hoffman v. United States, supra, at p. 486.) The court may require the witness `to answer if "it clearly appears to the court that he is mistaken." (Ibid.) To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. (Id. at pp. 486-487.) To deny an assertion of the privilege, `the judge must be perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate." (Malloy v. Hogan (1964) 378 U.S. 1, 12, quoting Hoffman v. United States, supra, at p. 488.)"
"Consistent with these principles, our Evidence Code provides that when a witness grounds a refusal to testify on the privilege against self-incrimination, a trial court may compel the witness to answer only if it `clearly appears to the court that the proposed testimony `cannot possibly have a tendency to incriminate the person claiming the privilege. (Evid. Code, § 404.)" (People v. Cudjo (1993) 6 Cal.4th 585, 617 (Cudjo).)
In People v. Maxwell (1979) 94 Cal.App.3d 562, 570-571 (Maxwell), the court considered whether a witness validly invoked the privilege against self-incrimination on the ground that her proposed testimony could expose her to a charge of perjury. In Maxwell, Russell, a witness, testified at a preliminary hearing regarding the defendants commission of a crime. (Id. at pp. 565-566.) At trial, the defendant called Russell as a witness. The defendant asked Russell whether she had told the police the truth in a statement contained in the police report regarding the incident, whether Russells preliminary hearing testimony had been truthful, and whether the defendant had in fact committed the charged offense. (Id. at p. 567.) Russell refused to answer all of the questions on the ground that the answers might incriminate her. (Ibid.) The Maxwell court concluded that the trial court properly sustained the witnesss claim of privilege on the ground that she faced "possible exposure to charges of perjury and also because her testimony as to some matters would `conflict with her previous testimony at the preliminary hearing." (Id. at p. 571.) The court reasoned, "A witness who has testified in a prior proceeding is entitled to invoke this privilege and refuse to answer questions which might expose the witness to a prosecution for perjury by furnishing a link in the chain of evidence tending to establish guilt of that offense. [Citations.]" (Id. at pp. 570-571; see also Cudjo, supra, 6 Cal.4th at p. 617 ["because [the witness] had testified at the preliminary hearing, he could properly invoke the privilege to avoid exposing himself to a charge of perjury in that proceeding," citing Maxwell].)
In his offer of proof in this case, the prosecutor indicated that Lopez initially told the police who were investigating the murder in the previous case that she had seen the defendant in that case commit the shooting, but that at the trial in that case, Lopez testified that she had not seen the defendant commit the shooting. During the pretestimonial hearing in this case, the prosecutor asked Lopez questions regarding the events of the previous case, including whether she had witnessed the shooting at issue in that case. As the trial court recognized, the answer to this question could potentially incriminate Lopez with respect to her actions in the previous case, either by providing evidence that she provided a false statement to the police (Seijas, supra, 36 Cal.4th at p. 306 [witness validly invoked privilege against self-incrimination out of fear that testimony could establish that he lied to police about murder]), or by providing evidence that she had committed perjury (Maxwell, supra, 94 Cal.App.3d at pp. 570-571). The same analysis applies with respect to the other questions the prosecutor asked Lopez about the shooting at issue in the previous case.
Fausto acknowledges in his reply brief that if Lopez were required to respond to the prosecutors questions, "she could be accused of making a statement inconsistent with either her police interview or her testimony and therefore be subject to perjury accusations," but argues that the prosecutor had "no right to impeach Lopez with any of the facts related to the [prior] shooting." Fausto maintains that the prosecutor had the right only to "establish historical facts that were already included in the trial record of the prior case — the facts that she gave two different statements." Fausto cites no authority, and we are aware of none, that supports the proposition that the trial court erred in failing to limit the prosecutors proposed cross-examination in the narrow fashion he suggests.
Fausto cites People v. DeSantis (1992) 2 Cal.4th 1198, 1226 (DeSantis) and People v. Quartermain (1997) 16 Cal.4th 600, 623 (Quartermain) as supporting the argument that the prosecutors proposed cross-examination was "unnecessary to show the jurors that [Lopez] had credibility problems." However, neither case supports this proposition. In DeSantis, the Supreme Court concluded that a trial court had not abused its discretion under Evidence Code section 352 in precluding a defendant from impeaching a witness, Gary Masse, with the witnesss alleged untruthfulness in a prior case. (DeSantis, supra, 2 Cal.4th at p. 1226.) However, the basis of the Supreme Courts holding was that the trial court could have concluded that the evidence lacked significant probative value since there was little evidence that Masse had actually lied in the prior proceeding. The DeSantis court broadly stated, "Had Masse indeed committed perjury in the [prior] proceeding, the evidence of that misdeed might have significantly buttressed defendants case." (Ibid., italics added.)
In Quartermain, the Supreme Court considered whether a trial court erred in precluding a defendant from cross-examining a witness, David Younge, about whether Younge had previously bribed judges in separate criminal proceedings. (Quartermain, supra, 16 Cal.4th at p. 623.) The Supreme Court concluded that the trial court had not violated the defendants constitutional right to confront adverse witnesses. (Id. at p. 624.) However, the basis of the Supreme Courts holding was not that the proposed cross-examination was irrelevant or improper. Rather, the Quartermain court concluded that because Younges credibility had already been extensively impeached, the proposed cross-examination would not have caused the jury to "have received a significantly different impression of [his] credibility," as is required to establish a violation of the defendants right to confrontation. (Id. at p. 624.) Indeed, the Quartermain court took it as undisputed that "judicial bribery reflects on a witnesss veracity" (id. at p. 623), and concluded that the trial court had abused its discretion under Evidence Code section 352 in precluding the proposed cross-examination on the ground that it would have been too time consuming. (Quartermain, supra, 16 Cal.4th at p. 624.)
If Lopez had testified, the prosecutors proposed examination concerning her statement to police and her testimony in the previous case would have been relevant to her credibility. Responding to these questions could have exposed Lopez to a perjury charge, or a charge of making a false statement to police. Accordingly, we conclude that the trial court properly determined that Lopez validly invoked her privilege against self-incrimination.
Cortez also claims that the trial court erroneously stated that Lopez could validly invoke her right not to incriminate herself on the ground that she might give untruthful testimony regarding the events in this case. The bulk of the trial courts comments indicate that the court properly recognized that the validity of Lopezs invocation turned on whether a truthful answer in this proceeding would tend to incriminate her based on her statements in the prior proceeding. In any event, this court does "not review the reasons for the trial courts ruling; if it is correct on any theory, even one not mentioned by the court, and even if the court made its ruling for the wrong reason, it will be affirmed." (Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1191.)
c. The trial court did not abuse its discretion in precluding Lopez from testifying
In Fost v. Superior Court (2000) 80 Cal.App.4th 724, 735 (Fost), the court stated, "the right to cross-examination cannot be defeated by a valid claim of privilege, even a privilege as strong as that embodied in the Fifth Amendment." The Fost court reasoned:
"Where a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude the witnesss testimony on direct. As stated in Witkin: `In either a civil or criminal case, where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, the trial court may strike out the direct examination. [Citations.] [Citation.] This rule applies even `where the refusal to answer is based on a valid claim of privilege. [Citation.] [Fn. omitted.] Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf. Striking a witnesss entire testimony is, of course, a `drastic solution, only to be employed `after less severe means are considered. [Citations.]" ( Id. at pp. 735-736.)
The Fost court noted that such principles apply even where the witness is a defense witness in a criminal case:
"The logic of this rule applies as much to the situation in which the person who refuses to disclose is a defense witness as to that in which it is the defendant himself, as the refusal of a defense witness to submit to proper cross-examination may corrupt the factfinding process as much as the refusal to submit of the defendant himself. A criminal defendants federal constitutional right to a fair trial, and specifically the Sixth Amendment right `to have compulsory process for obtaining witnesses in his favor, cannot be deemed to include the right to call a witness who cannot be subjected to proper cross-examination, either because of protections the witness enjoys under the shield law or for any other reason. [Citation.] There are, in short, exceptionally few caveats to the proposition that the right to introduce evidence necessarily implicates the responsibility to permit it to be fairly tested. [Footnote omitted.]" ( Fost, supra, 80 Cal.App.4th at p. 736; accord Apodaca, supra, 16 Cal.App.4th at p. 1716 [stating that where defense witness properly invoked Fifth Amendment privilege at trial "[t]he appropriate remedy" was "to strike or disallow all the witnesss testimony"].)
Similarly, in Price, supra, 1 Cal.4th at page 421, the Supreme Court stated that the trial court may preclude a witness from testifying where it is clear that the witness will refuse to submit to full cross-examination:
"If a witness frustrates cross-examination by declining to answer some or all of the questions, the court may strike all or part of the witnesss testimony. [Citation.] From this rule it follows logically that if, as here, the court determines in advance that the witness will refuse to answer such questions, the court may decline to admit the testimony in the first instance."
In this case, the record indicates that the trial court carefully considered its options in attempting to balance Faustos right to present witnesses in his own behalf, with the Peoples right to effectively cross-examine Lopez. The court considered relevant case law, discussed the issue extensively with all counsel, considered options other than precluding Lopez from testifying, and held a hearing concerning the proposed testimony. (See People v. Seminoff (2008) 159 Cal.App.4th 518, 527-528 [upholding striking of testimony of witness who repeatedly asserted Fifth Amendment rights where "court did not make a precipitous ruling on the issue or strike [witnesss] testimony the first time she refused to answer a question; rather it entertained full argument from the parties"].)
Further, the proposed impeachment, although collateral to this issues in this case, was highly relevant to Lopezs credibility.
While Fausto claims that the prosecutor could have impeached Lopez in ways that would not have required her to invoke her Fifth Amendment privilege, the record reflects that the trial court considered having additional witnesses testify regarding Lopezs prior alleged untruthfulness, but rejected this option as necessitating a "trial within a trial."
Further, Fausto cites no authority supporting the proposition that the mere existence of possible alternative methods of impeachment requires the trial court to allow a witness to testify and refuse to submit to proper impeachment cross-examination.
We conclude that the trial court did not abuse its discretion in precluding Lopez from testifying at trial.
d. The prosecutor did not improperly cause Lopez to invoke her privilege against self-incrimination
Fausto claims that the prosecutor improperly interfered with his constitutional right to present witnesses on his behalf by causing Lopez to invoke her privilege against self-incrimination.
Under the Sixth Amendment to the United States Constitution, a criminal defendant has the right "to have compulsory process for obtaining witnesses in his favor." (See also Cal. Const., art I, § 15 [providing criminal defendant with right to compel witnesses on his behalf].)
In In re Martin (1987) 44 Cal.3d 1, 30, the Supreme Court noted that a prosecutor may commit misconduct by interfering with a defendants constitutional right to compel witnesses on his behalf:
"In order to establish a violation of his constitutional compulsory-process right, a defendant must demonstrate misconduct. To do so, he is not required to show that the governmental agent involved acted in bad faith or with improper motives. [Citations.] Rather, he need show only that the agent engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as `to transform [a defense witness] from a willing witness to one who would refuse to testify . . . . [Citations.]" (In re Martin, supra, 44 Cal.3d at p. 31.)
In In re Martin, the defendant brought a petition for habeas corpus in which he alleged that the prosecutor had interfered with his right to present witnesses at trial. (In re Martin, supra, 44 Cal.3d at p. 7.) In reviewing the evidence of the alleged interference, the Supreme Court noted that during the petitioners trial, the prosecutors investigator had arrested a defense witness, Stephen Aguilar, outside the courtroom, in the presence of other potential defense witnesses, immediately following Aguilars testimony, which had been favorable to the defense. (Id. at p. 33.) Counsel for another potential defense witness, Charles Riley, stated that "[the] prosecutor . . . told him if Riley testified [the prosecutor] would file charges against [Riley]." (Id. at p. 36.) Riley stated that the prosecutors investigator "told him that if [Riley] testified as Aguilar had, the same thing that happened to Aguilar would happen to him." (Id. at p. 37.) According to counsel for a third potential defense witness, the prosecutor informed him that if his client were to testify, "he would be prosecuted for any crimes his testimony disclosed." (Id. at p. 44.) A fourth potential defense witness refused to testify in light of "the prosecutions apparent disdain for people who testified for [the defense]." (Id. at p. 48.) On these facts, the Supreme Court concluded that the petitioner had carried his burden of demonstrating that prosecutorial misconduct had interfered with his right to present the testimony of witnesses at trial. (Id. at p. 51.)
In U.S. v. Vavages (9th Cir. 1998) 151 F.3d 1185, 1189-1190 (Vavages), the Ninth Circuit stated that "A defendants constitutional rights are implicated only where the prosecutor or trial judge employs coercive or intimidating language or tactics that substantially interfere with a defense witness decision whether to testify." However, "`perjury warnings [from a prosecutor] are not improper per se and . . . `the Sixth Amendment is not implicated every time a prosecutor or trial court offers advice regarding the penalties of perjury. " (Id. at p. 1189.) "Among the factors courts consider in determining the coercive impact of perjury warnings are the manner in which the prosecutor or judge raises the issue, the language of the warnings, and the prosecutors or judges basis in the record for believing the witness might lie. [Citations.]" (Id. at p. 1190).)
Fausto claims that the prosecutor committed misconduct in two ways. First, Fausto claims that the prosecutor made "threats of prosecuting Lopez for perjury." The record does not support this assertion. The record does indicate that Lopezs counsel stated that the prosecutor informed him that the prosecutor intended to ask Lopez whether she had committed perjury in the previous case. Assuming for the sake of argument that the prosecutor made this statement, asking Lopez whether she had committed perjury in the prior case is different from threatening Lopez with a perjury prosecution. (Cf. In re Martin, supra, 44 Cal.3d at p. 41, fn. 8 [noting distinction between providing a witness a "`mere warning about the dangers of perjury," and informing a witness that they "would be prosecuted" for any crime revealed in the witnesss testimony].)
Further, the trial court instructed the prosecutor not to ask Lopez directly whether she had lied in the prior case. The prosecutor refrained from doing so during the pretestimonial hearing. Applying the Vavages factors to this case, the prosecutor never directly warned Lopez that she could be prosecuted for perjury, in strong language or otherwise, and the prosecutor clearly had a legitimate basis for inquiring into Lopezs credibility, in view of her apparently inconsistent statements in the prior case. (See Vavages, supra, 151 F.3d at p. 1190.)
Second, Fausto repeats his claim that the prosecutor committed misconduct by improperly impeaching Lopez, in asking her to repeat statements from the previous case that were allegedly untrue, rather than merely proving that Lopez had given contradictory statements in the prior case. In part III.B.1.b., ante, we rejected Faustos claim that the trial court erred in failing to limit the prosecutors cross-examination of Lopez during the pretestimonial hearing. For the same reasons, we reject Faustos claim that the prosecutor committed misconduct in impeaching Lopez during the pretestimonial hearing.
Accordingly, we conclude that Fausto has failed to demonstrate that the prosecutor committed misconduct with respect to Lopez.
In order for Fausto to prevail on his claim that the prosecutor violated Faustos compulsory process right, Fausto was required to demonstrate: (1) prosecutorial misconduct, (2) "a causal link between the misconduct and his inability to present witnesses on his own behalf," and (3) "a reasonable possibility that the witness could have given testimony that would have been both material and favorable." (In re Martin, supra, 44 Cal.3d at pp. 31-32.) In light of our conclusion that Fausto has failed to demonstrate prosecutorial misconduct, we need not consider Faustos arguments as to the other elements.
2. The trial court did not err in modifying Faustos proposed jury instruction regarding imperfect self-defense
Fausto claims that the trial court erred in modifying his proposed jury instruction regarding the doctrine of imperfect self-defense. We apply the de novo standard of review in determining whether a jury instruction correctly states the law. (People v. Posey, supra, 32 Cal.4th at p. 218.)
a. Factual and procedural background
During a hearing outside the presence of the jury, the trial court indicated that Faustos counsel had requested that the court instruct the jury pursuant to CALCRIM Nos. 505 ("Justifiable Homicide: Self-Defense or Defense of Another") and 571 ("Voluntary Manslaughter: Imperfect Self-Defense — Lesser Included Offense (Pen. Code, § 192)"). The trial court stated that it intended to modify these proposed instructions by adding a paragraph informing the jury that if Fausto conspired to commit an assault with force likely to produce great bodily injury and the murder was a natural and probable consequence of that assault, then Fausto would be guilty of murder, and neither the perfect nor the imperfect self-defense doctrine would apply. The trial court indicated that the modification was proper given that the court would be instructing the jury regarding conspiracy pursuant to CALCRIM No. 417. The court paraphrased CALCRIM No. 417 as providing, "To prove the defendant guilty of conspiracy, the people must prove the defendant conspired to commit, a member of the conspiracy committed, and . . . whatever the offense was, was a natural and probable consequence to the common plan or design."
Faustos counsel stated that he could "see the logic [behind] where your honor is going, but I would like an opportunity to look at it over lunch time, if I might, your honor."
The trial court agreed to allow counsel to review the proposed modifications. The court indicated that it intended to make the modifications because the court had had previous experiences in which jurors had difficulty applying self-defense doctrines in cases in which the defendant was charged with conspiracy.
The clerks transcript indicates that the instruction at issue was submitted by Faustos counsel, and that the trial court gave the instruction as submitted, without modification. This court requested supplemental briefing on the issue of whether the record demonstrated that the trial court had in fact modified Faustos proposed instruction, as Fausto maintains in his appellate brief. The People and Fausto have both identified the portion of the reporters transcript discussed above, which unequivocally indicates that the trial court modified Faustos proposed instruction. In the future, we encourage the trial court to ensure that the clerks transcript accurately reflects whether the court gave jury instructions as requested by a party, or as modified by the court.
The trial court instructed the jury regarding imperfect self-defense pursuant to a modified version of CALCRIM No. 571, as follows:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if defendant Jahaziel Fausto killed a person because he acted in imperfect self-defense.
"If you conclude the defendant Jahaziel Fausto acted in complete self-defense, his actions were lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant Jahaziel Faustos belief in the need to use deadly force was reasonable. Defendant Jahaziel Fausto acted in imperfect self-defense if, one, defendant Fausto actually believed that he was in [imminent] danger of being killed or suffering great bodily injury; two, defendant Fausto actually believed that the immediate use of deadly force was necessary to defend against the danger; and three, at least one of these beliefs was unreasonable. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.
"In evaluating the defendants beliefs, consider all the circumstances as they were known and appeared to the defendant. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"If you conclude that defendant Jahaziel Fausto conspired to commit assault upon the person of another by any means of force likely to produce great bodily injury, in violation of Penal Code section 245(a)(1), a violation of Penal Code section 182, subdivision (a) . . . and that the crime of murder, a violation of Penal Code Section 187(a), was a natural and probable consequence of the common plan or design of the crime that defendant Jahaziel Fausto conspired to commit, imperfect self-defense does not reduce the killing that would otherwise be murder to voluntary manslaughter.
"The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant Jahaziel Fausto not guilty of murder." (Italics added.)
Fausto claims that the court erred in modifying the instruction to add the paragraph italicized above.
The trial court also instructed that jury pursuant to a modified version of CALCRIM No. 417 ("Liability for Coconspirators Acts") in relevant part as follows:
"A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. A member of the conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan.
"Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable consequence, consider all of the circumstances established by the evidence.
"A member of a conspiracy is not criminally responsible for acts of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan.
"To prove that the defendant Adrian Cortez is guilty of the crime of murder as charged in Count 2, the People must prove that, one, the defendant conspired to commit the following crime: assault upon the person of another by any means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a) [(1)]; two, a member of the conspiracy committed murder, a violation of Penal Code section 187, subdivision (a), to further the conspiracy; 3, murder, a violation of Penal Code section 187 [, subdivision] (a), was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit."
Although CALCRIM No. 417 pertained to Cortez, the instruction is relevant to our analysis of Faustos claim in light of the trial courts reference to the natural and probable consequences doctrine in its modified version of Faustos requested imperfect self-defense instruction.
b. Governing law
(1) Review of jury instruction claims in general
In People v. Ramos (2008) 163 Cal.App.4th 1082, the court outlined the well established law regarding appellate review of claims of error in jury instructions:
"Review of the adequacy of instructions is based on whether the trial court `fully and fairly instructed on the applicable law. [Citation.] "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.] [Citation.] `Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. [Citation.]" (Id. at p. 1088.)
(2) Imperfect self-defense
"[A]lthough one who kills in the unreasonable but actual belief in the need for self-defense is guilty of manslaughter rather than murder [citation], [footnote omitted] the belief must be in the need to defend against imminent danger `to life or great bodily injury. [Citations.]" (People v. Valencia (2008) 43 Cal.4th 268, 286.) "[A] trial courts duty to instruct on this theory arises `whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense. [Citation.]" (People v. Rogers (2006) 39 Cal.4th 826, 883.)
(3) The natural and probable consequences doctrine
In People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman), the California Supreme Court outlined the natural and probable consequences doctrine. The Prettyman court noted that "[t]he first California decision to embrace this doctrine was People v. Kauffman (1907) 152 Cal. 331" (Prettyman, supra, 14 Cal.4th at p. 260), and that the Kauffman court described the natural and probable consequences doctrine as applied to coconspirators as follows:"
"The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. . . . Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design." [Citations.]" (Prettyman, supra, 14 Cal.4th at pp. 260-261, italics omitted.)
In order for a defendant to be convicted of a charged offense pursuant to the natural and probable consequences doctrine, the direct perpetrator of the underlying charged offense must in fact commit that offense. As our Supreme Court stated in Prettyman, in applying the natural and probable consequences doctrine in the aiding and abetting context, "at trial each juror must be convinced, beyond a reasonable doubt, that the defendant aided and abetted the commission of a criminal act, and that the offense actually committed was a natural and probable consequence of that act." (Prettyman, supra, 14 Cal.4th at p. 268, italics altered; accord Price, supra, 1 Cal.4th at p. 442 ["a person who conspires to commit or aids and abets another in the commission of an offense is guilty not only of that offense but also of any reasonably foreseeable offense committed by a coconspirator or by the person aided and abetted," italics added].)
(4) Application
We assume for the sake of argument that Faustos testimony that Arturos act of "aggressively" coming toward Fausto while Arturo shouted his gang name constituted substantial evidence supporting a jury instruction on imperfect self-defense.
The trial court instructed the jury that in order to find Cortez guilty of murder pursuant to the natural and probable consequences doctrine, the jury had to find that "a member of the conspiracy committed murder." Given that it was undisputed that Fausto was the shooter, to the extent the jury found that Fausto had not committed murder, due to the application of the doctrine of imperfect self-defense, the jury could not find Cortez guilty of murder by virtue of the natural and probable consequences doctrine.
People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy), in which the Supreme Court held that an aider and abettor could properly be convicted of a greater degree of murder than his shooter confederate, is not to the contrary. In McCoy, the Supreme Court made clear that its holding did not apply to a conviction obtained under the natural and probable consequences doctrine. The court emphasized, "[O]nly an aider and abettors guilt of the intended crime is relevant here. Nothing we say in this opinion necessarily applies to an aider and abettors guilt of an unintended crime under the natural and probable consequences doctrine." (Ibid., italics added.)
While the trial courts modification of the imperfect self-defense instruction was circular, in that it essentially instructed the jury that the doctrine of imperfect self-defense did not apply if the jury were to find that Fausto committed a murder for which Cortez was liable pursuant to the natural and probable consequences doctrine, the modification did not misstate the law. The jury could not find both that Cortez was liable for the murder pursuant to the natural and probable consequences doctrine and at the same time, that Fausto was not guilty of murder based on the imperfect self-defense doctrine.
We reject Faustos claim that the instruction "effectively prevented jurors from considering imperfect self-defense" because it prohibited the jury from applying the doctrine "even if [Fausto] did not plan to actually shoot anyone and encountered an unexpected threatening situation when he went out to execute the conspiracy to commit assault." The limitation the court provided in its modification of CALCRIM No. 571 applied only if the jury were to find that the killing of Arturo constituted a murder that was a natural and probable consequence of the conspiracy. As explained above, a killing that resulted from Faustos use of imperfect self-defense would be neither a murder, nor a natural and probable consequence of the conspiracy. The instruction thus did not improperly preclude the jury from considering the doctrine of imperfect self-defense to the extent the jury found that Fausto acted in a manner consistent with that doctrine.
Accordingly, we conclude that the trial court did not err in modifying Faustos proposed imperfect self-defense instruction.
Fausto also claims that the cumulative error doctrine requires reversal of the judgment. In light of our rejection of all of the defendants claims, other than those pertaining to sentencing, we reject Faustos claim of cumulative error.
C. Defendants claims of sentencing error
1. Factual and procedural background
The trial court sentenced Cortez in relevant part as follows:
"As to the sentencing, Count 1 in this case [section] 182 [, subdivision] (a)(1) is conspiracy to commit a crime. And it is punishable in the same manner and to the same extent as is provided for the punishment of the conspired crime, which in this case was count 2, murder, a violation of Penal Code section 187 [, subdivision] (a)(1). That offense is punishable by a term of 25 years to life. Mr. Cortez has one strike pursuant to Penal Code section[s] 667 [, subdivisions] (b) through (i), 668, and 1170.12. The punishment for the offense is doubled. There is also a prison prior on the robbery charge. This is the [section] 667.5. This adds one year, and that is to run consecutive to the period of imprisonment.
[¶] . . . [¶]
"As to counts 1 and 2, the jury also found the defendant — the allegation true under section 186.22, [subdivision] (b)(1), which is punishable by an additional and consecutive 10 years in prison. However, there is a decision in the case called, People [v.] Lopez, which is at [(2005)] 34 Cal.4th 1002. The California Supreme Court said that this particular provision did not apply in case where a life sentence was imposed." (Italics added, underlining omitted.)
The court then commented that the jury had made various enhancement findings "on both counts," pursuant to section 12022.53, subdivisions (b), (c), (d) and (e), and stated that the "conduct on count 1 and the allegations attended thereto," also applied to count 2, and therefore, "punishment must be stayed on those counts."
The court further indicated that it was selecting the murder conviction in count 2 as the base term. The court sentenced Cortez to 76 years to life on count 2, including 25 years on the murder conviction (§ 187, subd. (a)), doubled pursuant to the Three Strikes law (§ 667, subds. (b)-(i), 1170.12), and an additional consecutive 25-year term premised on the section 12022.53, subdivisions (d), (e)(1) firearm enhancement.
The trial court summarized its sentencing with respect to Cortez on count 1 in relevant part as follows:
"As to Count 1, the conspiracy charge, [section] 182 subdivision (a)[(1)] and the provisions of . . . [section] 667 [, subdivisions] (b) through (i) [and section] 1170.12, it is 25 years to life, which is double[d], and it is stayed pursuant to Penal Code section 654. So the punishment as to Count 1 is 50 years to life, which is stayed pursuant to Penal Code section 654. Correction as to the custody credits, 534 days actual credits . . . ."
With respect to count 2, the trial court summarized its sentencing of Cortez as follows:
"Count [2] 25 years to life, doubled pursuant to the strike law. The enhancement [section] 12022.53 of 25 years to life . . . is consecutive to the 50 years imposed and pursuant to Penal Code section 186.22 [, subdivision] (b)(1). 10-year enhancement is not imposed pursuant to People v. Lopez[, supra] 34 Cal.4th 1002. The enhancement pursuant to Penal Code section 12022.53, subdivision[s (b), (e)(1)] is 10 years consecutive to that which is previously imposed. However, pursuant to Penal Code section 654, the 10 years is stayed. The enhancement pursuant to Penal Code section 12022.53, subdivision[s (c), (e)(1)] is 20 years consecutive, which is stayed pursuant to Penal Code section 654. Pursuant to Penal Code section 667.5, subdivision (b) the prison prior [is to run] one-year consecutive to the 75 years previously imposed, for [a] total term . . . as to Count 2 of 76 years to life."
The trial court sentenced Fausto in relevant part as follows:
"As to Mr. Fausto, the courts earlier discussion as to Mr. Cortez regarding the applicability of punishment as it relates to Count 1 for conspiracy being the same as provided for the crime to conspire is applicable to Mr. Fausto. Also the earlier comments of the court regarding the application of People v. Lopez, [ supra] 34 [Cal.]4th 1002, would also apply to the sentencing of Mr. Fausto."
[¶] . . . [¶]
"The sentencing of 50 years to life is allocated as follows: Count 2, the murder charge [section] 187 [, subdivision] (a), 25 years to life; the enhancement pursuant to Penal Code section 12022.53, subdivision (d) which was selected as the most serious because of the serious nature of this matter as the appropriate term 25 years to life, and that is consecutive to the 25 years imposed. The [section] 186.22 [, subdivision] (b)(1) enhancement of 10 years is not imposed pursuant to People [ v. ] Lopez. The [section] 12022.53, subdivision[s (b), (e)(1)] [enhancement] is 10 years consecutive, which is stayed pursuant to Penal Code section 654. The 12022.53, subdivision[s](c), (e)(1), it is 20 years consecutive to that previously imposed. However, it is stayed pursuant to Penal Code section 654. And the enhancement, pursuant to Penal Code section 1202[2].5 [subdivision] (a), is the upper term of 10 years because of the serious nature of this offense. It is stayed pursuant to Penal Code section 6[5]4. [¶] Total commitment to the Department of Corrections for Mr. Fausto is 50 years to life."
2. Defendants claims
a. The trial court improperly sentenced defendants for conspiracy to commit murder on count 1
The record is clear that the trial court imposed a sentence on count 1 as if each defendant had been convicted of conspiracy (§ 182, subd. (a)(1)) to commit murder (§ 187, subd. (a)). In fact, each defendant was convicted of conspiracy (§ 182, subd. (a)(1)) to commit assault with a deadly weapon or force likely to produce great bodily injury (§ 245, subd. (a)(1)). Therefore, as the People concede, the trial court imposed unauthorized sentences on count 1 as to both defendants. Accordingly, the trial courts imposition of sentence on count 1 as to each defendant is reversed. The matter must be remanded for resentencing.
b. The trial court improperly stated that the jury had found true various section 12022.53 firearm enhancement allegations with respect to Cortez on count 1
Cortez also claims that the trial court erred in imposing a sentence of 25 years to life on count 1 pursuant to section 12022.53 because Cortez was neither charged with, nor convicted of, a section 12022.53 enhancement on count 1. The People acknowledge that the trial court erroneously stated that the jury had found true various section 12022.53 firearm allegations with respect to count 1. However, the People argue that the court did not impose a sentence on the basis of these findings.
While it appears that the People are correct that the court did not impose a sentence pursuant to the section 12022.53 on count 1, the trial court did erroneously state that the jury had made various firearm enhancement findings on count 1 pursuant to section 12022.53. In resentencing Cortez, the trial court is directed to impose a sentence on count 1 that does not contain a section 12022.53 enhancement.
c. The 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C) does not apply to count 1
Fausto and Cortez both claim that the trial court erred in stating that a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) would apply under the circumstances of this case.
The trial court did not impose the 10-year enhancement because it erroneously believed that the underlying offense on count 1 was murder, a crime that carries a life term. (See People v. Lopez, supra, 34 Cal.4th at p. 1004 [section 186.22, subdivision (b)(1)(C) 10-year enhancement does not apply where underlying felony is first degree murder punishable by a term of 25 years to life].)
On count 1, the jury found that Fausto and Cortez each committed a conspiracy (§ 182, subd. (a)(1)) to commit an assault with a deadly weapon or force likely to produce great bodily injury (§ 245, subd. (a)(1)) in order to assist the criminal conduct of gang members within the meaning of section 186.22, subdivision (b)(1).
Section 186.22, subdivision (b)(1) provides in relevant part:
"Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:
"(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the courts discretion.
"(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.
"(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
Section 186.22, subdivision (b)(4) provides for an indeterminate term of life imprisonment where the underlying felony is one of certain specified offenses.
Section 186.22, subdivision (b)(5) provides, "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
Section 186.22, subdivision (g) provides, "Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section . . . in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition."
In this case, it is undisputed that conspiracy to commit assault with a deadly weapon or force likely to produce great bodily injury (§ 245, subd. (a)(1)) is not a violent felony (§ 667.5). Accordingly, the People concede that "the 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C) does not apply to count 1 under the circumstances of this case."
Further, conspiracy to commit assault with a deadly weapon or with force likely to produce great bodily injury (§ 245, subd. (a)(1)) is not a serious felony under section 1192.7. (See People v. Delgado (2008) 43 Cal.4th 1059, 1065 ["a conviction under the deadly weapon prong of section 245(a)(1) is a serious felony, but a conviction under the [great bodily injury] prong is not"]; compare with section 1192.7, subd. (c)(31), (42) [listing "assault with a deadly weapon" and "conspiracy" to commit such an offense as serious felonies].) In this case, the jury did not make any finding regarding which prong of section 245, subdivision (a)(1) applied, with respect to either defendant. Therefore, the five-year enhancement provided in section 186.22, subdivision (b)(1)(B) also does not apply to count 1 as to either defendant.
Accordingly, on resentencing, the trial court is directed to impose an enhancement term pursuant to section 186.22, subdivision (b)(1)(A) on count 1, as to each defendant, unless it exercises its discretion to strike the enhancements pursuant to section 186.22, subdivision (g) in the interests of justice.
We note that the trial court stayed the sentences imposed on count 1 as to Cortez pursuant to section 654, and appeared to intend to stay the sentences imposed on count 1 as to Fausto pursuant to section 654. Nothing in our opinion is intended to preclude the trial court from staying such sentences on remand.
d. Proper application of the section 186.22 gang enhancement on count 2 on resentencing
At sentencing, the trial court stated that it was not imposing a 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C) on the murder convictions on count 2 (§ 187, subd. (a)) as to either defendant, pursuant to People v. Lopez, supra, 34 Cal.4th 1002. Cortez claims that on resentencing, the trial court should be directed to state that the section 186.22 enhancement does not apply due to a prohibition on the imposition of such an enhancement contained in section 12022.53, subdivision (e)(2). We reject this claim, and clarify the manner in which the court should impose the section 186.22 enhancements related to count 2 on resentencing, as to each defendant.
As noted previously (see part III.C.2.c., ante), section 186.22, subdivision (b)(1)(C) provides a 10-year enhancement in cases in which the underlying felony is a violent felony, and section 186.22, subdivision (b)(5) provides a 15-year minimum parole ineligibility term where the underlying felony is punishable by life in prison. In People v. Lopez, supra, 34 Cal.4th at page 1004, the Supreme Court concluded that "first degree murder is a violent felony that is punishable by imprisonment in the state prison for life and therefore is not subject to a 10-year enhancement under section 186.22(b)(1)(C)." The Lopez court further concluded, "Instead, section 186.22, subdivision (b)(5) . . . applies and imposes a minimum term of 15 years before the defendant may be considered for parole." (Ibid.)
Section 12022.53 states in relevant part:
"(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:
"(A) The person violated subdivision (b) of Section 186.22.
"(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).
"(2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense."
In People v. Salas (2001) 89 Cal.App.4th 1275, 1277 (Salas), the court considered "the interplay of sections 186.22, subdivision (b)(5) and 12022.53, subdivision (e)." The trial court in Salas sentenced the defendant to a life sentence for willful, deliberate, and premeditated murder. (Salas, supra, 89 Cal.App.4th at p. 1280.) The trial court imposed a 15-year minimum parole ineligibility term pursuant to section 186.22, subdivision (b)(5), and a consecutive term of 25 years to life for firearm use pursuant to section 12022.53, subdivision (d). (Salas, supra, 89 Cal.App.4th at p. 1280.) On appeal, the defendant claimed that the trial court erred in imposing the 15-year minimum parole ineligibility term, in light of section 12022.53, subdivision (e)(2). (Salas, supra, 89 Cal.App.4th at p. 1281.)
The Salas court noted that the jury had not found that the defendant personally used a firearm in the commission of the offense. (Salas, supra, 89 Cal.App.4th at p. 1279.) Under these circumstances, the Salas court concluded that section 12022.53, subdivision (e)(2) precluded imposition of the section 186.22, subdivision (b)(5) parole ineligibility term. The Salas court reasoned:
"Section 12022.53, subdivision (e)(1) increases the scope of potential liability for firearm use in a case where there is a finding pursuant to section 186.22. [Citation.] Section 12022.53, subdivision (e)(1) extends potential liability under the firearm enhancement when the accused, in a gang case, does not personally use the weapon. . . . Section 12022.53, subdivision (d), the firearm use provision applicable to the present case, requires the imposition of a 25-year-to-life sentence consecutive to that imposed for the underlying felony when the accused `personally discharged a firearm and proximally caused great bodily injury . . . or death. Section 12022.53, subdivision (e)(1) creates an exception to the personal use requirement of section 12022.53, subdivisions (b) through (d) in a prosecution where findings have been made pursuant to section 186.22, such as occurred in this case. In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances. However, as a consequence of this expanded liability under section 12022.53, subdivision (e), the Legislature has determined to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm. In the present case, the jury never found that defendant personally used a firearm. The only findings made by the jury were that a principal in the commission of the offense personally used a firearm. Therefore, section 12022.53, subdivision (e)(2) prevents the imposition of the 15-year minimum term specified in section 186.22, subdivision (b)(5)." ( Salas, supra, 89 Cal.App.4th at pp. 1281-1282.)
In People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), the Supreme Court considered a similar issue in determining whether section 12022.53, subdivision (f) precludes a trial court from imposing lesser firearm enhancements found true as to the same underlying crime, or, alternatively, whether section 12022.53, subdivision (f) requires a trial court to impose and stay such lesser enhancements. The Gonzalez court quoted section 12022.53, subdivision (f) as follows:
"Section 12022.53(f) provides, in part, that `[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. (Italics added.)" (Gonzalez, supra, 43 Cal.4th at p. 1125.)
The Gonzalez court concluded, "[S]ection 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed." (Gonzalez, supra, 43 Cal.4th at p. 1130.)
In reaching this conclusion, the Gonzalez court noted that the meaning of "impose" in several places in section 12022.53 must be interpreted as meaning "impose and execute."
"[S]everal examples of the word `impose throughout section 12022.53 must be interpreted as shorthand for `impose and then execute to make sense. The principle that a words meaning may be determined by reference to the rest of the statute allows us to extend this interpretation to the use of `impose throughout section 12022.53(f). [Citation.] If subdivision (f) is so interpreted, it directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (Gonzalez, supra, 43 Cal.4th at p. 1127.)
The Gonzalez court further reasoned:
"[O]ur interpretation of the language of subdivision (f) harmonizes section 12022.53 with the rationale underlying both section 654 and the Judicial Councils general rule that sets forth the procedure courts should follow when pronouncing sentence on any prohibited enhancement. (Cal. Rules of Court, rule 4.447.) At the time of defendants offense in 2000, former rule 447 (now rule 4.447), provided, in pertinent part, that `[n]o finding of an enhancement shall be stricken or dismissed because imposition of the term is either prohibited by law or exceeds limitations on . . . the imposition of multiple enhancements. The sentencing judge shall impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and shall thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay shall become permanent upon the defendants service of the portion of the sentence not stayed. (Former rule 447, as amended eff. Jan. 1, 1991.) [Footnote omitted.] The Advisory Committee comment to former rule 447 explained its rationale as follows: `Present practice of staying execution is followed to avoid violating a statutory prohibition or exceeding the statutory maximum, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence. See People v. Niles (1964) 227 Cal.App.2d 749, 756[, 39 Cal.Rptr. 11]. [¶] Only the portion of a sentence or component thereof that exceeds a maximum is prohibited, and this rule provides a procedure for that situation. (Advisory Com. com., Deerings Ann. Codes, Rules (1999 ed.) foll. rule 447, p. 220.) The Niles case the Advisory Committee cited discussed the analogous rationale underlying section 654 and concluded that staying the punishment for a conviction pursuant to that section is the only possible `reconciliation of the various policies involved. Any other method either incurs the risk of letting a defendant escape altogether, or else imposes an unnecessary burden on an appellate court and on the trial court on the inevitable remand for correction of sentence.
(Niles, supra, 227 Cal.App.2d at p. 756.)" (Gonzalez, supra, 43 Cal.4th at pp. 1128-1129.)
In a footnote omitted from the above quotation, the Gonzalez court quoted the current relevant California Rules of Court and italicized a reference to the prohibition contained in section 12022.53 (e)(2) in the associated Advisory Committee comment:
"The current rule is virtually the same except for having been renumbered. As of January 1, 2007, California Rules of Court, rule 4.447 provides that `No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent upon the defendants service of the portion of the sentence not stayed. The Advisory Committee comment was amended to add the following introductory statement: `Statutory restrictions may prohibit or limit the imposition of an enhancement in certain situations. (See, for example, sections 186.22(b)(1), 667(a)(2), 667.61(f), 1170.1(f) and (g), 12022.53(e)(2) and (f), and Vehicle Code section 23558.) (Advisory Com. com., Cal. Rules of Court, rule 4.447, italics added.)" (Gonzalez, supra, 43 Cal.4th at p. 1129, fn. 7.)
The reasoning quoted above, employed by the court in Gonzalez, applies with equal force to the enhancement imposition prohibition contained section 12022.53, subdivision (e)(2), particularly in light of the Gonzalez courts specific highlighting of the prohibition in section 12022.53, subdivision (e)(2). We conclude, therefore, that in light of the holding in Gonzalez, when a jury makes a section 186.22 enhancement finding, and section 12022.53, subdivision (e)(1) also applies, section 12022.53, subdivision (e)(2) permits the trial court to impose and stay the section 186.22 enhancement, unless the personal use or discharge criterion in section 12022.53, subdivision (e)(2) is met. We conclude that in the wake Gonzalez, the Salas courts contrary interpretation of section 12022.53, subdivision (e)(2) is no longer valid. (See People v. Sinclair (2008) ___Cal.App.4th ___ 2008 WL4140662 *7 [distinguishing Salas and concluding, "In view of Gonzalez, we also conclude that subdivision (e)(2) of section 12022.53 authorized—but did not oblige—the trial court to impose and stay the 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C)."]
In the latter scenario, the trial court may impose and execute a section 186.22 enhancement without regard to the prohibition contained in section 12022.53, subdivision (e)(2).
In this case, the jury found that Fausto personally used a firearm in committing the offense charged in count 2, in rendering a true finding on an associated section 12022.5, subdivision (a) enhancement allegation. The jury made no such finding with respect to Cortez. Therefore, on resentencing, the trial court is directed to impose a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5) on count 2 as to Fausto, unless the court exercises its discretion to strike the term pursuant to section 186.22, subdivision (g). The trial court is further directed to impose and stay a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5) on count 2 as to Cortez, unless the court exercises its discretion to strike the term pursuant to section 186.22, subdivision (g).
e. The trial court did not err in staying rather than striking the lesser firearm enhancements on count 2
Both Fausto and Cortez claim that the trial court erred in staying, rather than striking, various lesser firearm enhancements on count 2. Specifically, Cortez claims that the trial court erred in staying, rather than striking, the sentence enhancements pursuant to section 12022.53, subdivisions (b) and (c) in imposing a sentence enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1). Fausto claims that the trial court erred in staying, rather than striking, the sentence enhancements pursuant to sections 12022.53, subdivisions (b) and (c), and 12022.5 upon imposing a sentence enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1).
As noted above (see part III.C.2.d., ante), in Gonzalez, supra, 43 Cal.4th at page 1129, the Supreme Court concluded that section 12022.53 requires a trial court to impose and stay lesser firearm enhancements under these circumstances. Thus, the trial court did not err in staying, rather than striking, the lesser firearm enhancements.
However, as was true in Gonzalez, the trial court in this case incorrectly stayed the lesser firearm enhancements under section 654. (Gonzalez, supra, 43 Cal.4th at p. 1130.) On resentencing, the trial court is directed to issue the stays pursuant to section 12022.53.
f. Cortezs sentencing minute order and abstract of judgment improperly state Cortezs custody credits
Cortez claims that his sentencing minute order and abstract of judgment must be corrected to reflect the trial courts oral pronouncement of 534 days of total custody credits. The People concede that the trial court orally stated that Cortez was entitled to 534 days of total custody credits, but that the relevant minute order and abstract of judgment list 533 days of total custody credits. On resentencing, the trial court is directed to ensure that the sentencing minute order and abstract of judgment properly state the number of days of custody credits.
IV.
DISPOSITION
The judgment is reversed as to the defendants sentences on count 1. The defendants sentences are vacated, and the matter is remanded for resentencing in accordance with the directions provided in part III.C.2., ante. In all other respects, the judgment is affirmed.
We concur:
McINTYRE, Acting P. J.
OROURKE, J.