Opinion
A127338
06-26-2012
THE PEOPLE, Plaintiff and Respondent, v. RICHARD TERRY GAINES et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 050811190)
I.
INTRODUCTION
Appellants Richard Terry Gaines and Mary Lee Gaines, who are brother and sister, were tried jointly and convicted of various charges arising from the fatal shooting of Richard's estranged girlfriend, Sheila Hegler (Hegler). On appeal, they both argue that the trial court erred in refusing to admit evidence of the unrelated subsequent arrest of Hegler's son, Richard Tucker (Tucker), who was the sole eyewitness who testified to the shooting. We reject this contention on the ground that any error was harmless.
Because appellants share a common surname, we will refer to them by their given names for clarity and brevity. We intend no disrespect.
In addition, Richard argues that the trial court erred in admitting evidence that he was required to wear a tracking device, and that Hegler told a neighbor that when Richard was angry at her, he hid the magnifying glass Hegler used for reading and watching television. We reject these contentions. We agree, however, with Richard's contention that his conviction for soliciting the murder of Tucker was not supported by sufficient evidence corroborating Tucker's testimony. Accordingly, we reverse that conviction only, and remand for resentencing.
On her part, Mary argues that (1) her counsel was ineffective in not objecting to the admission of certain evidence under Evidence Code section 352 (section 352); (2) the trial court erred in instructing the jury not to speculate on the liability of unjoined perpetrators; (3) the trial court erred in instructing the jury that all principals to a crime are equally liable; and (4) there was insufficient evidence of premeditation and deliberation to support her conviction for first degree murder.
We conclude that even assuming the failure of Mary's counsel to object to the challenged evidence was negligent, there was no prejudice to her defense. We reject Mary's claims of instructional error, and also conclude that Mary's first degree murder conviction was supported by sufficient evidence. Accordingly, we affirm the judgment against her.
II.
FACTUAL AND PROCEDURAL BACKGROUNDS
In April 2008, Richard and Hegler, who had been in a relationship for a few months, moved into an apartment in Antioch together. Hegler's son, Richard Tucker, was very close to her, and moved into the apartment with Hegler when she began living there with Richard. Tucker did not know Richard before the move. The apartment manager, Michelle Hatch, testified that after Tucker moved in, Richard told her that he wanted to move out, in part because of Tucker's presence.
All further references to dates are to the year 2008 unless otherwise noted.
According to Tucker, Richard abused alcohol, and was very mean when intoxicated. Richard and Hegler argued a lot, which Tucker did not like, but he kept his distance rather than intervening because the arguments never became physical.
Hegler's downstairs neighbor, Inez Rivera, considered Hegler a friend. Rivera often overheard arguments between Hegler and Richard. Rivera knew that Hegler had poor eyesight, and understood that Hegler could not read or watch television without a magnifying glass. Rivera testified Hegler told her that when Richard was angry, he would hide Hegler's magnifying glass.
At appellants' trial, Tucker gave the following account of the events leading up to his mother's death. On June 18, Tucker returned to the apartment in the early hours of the morning after spending several days away. Richard and Hegler were awake, and arguing in their bedroom with the door closed. Tucker went to the kitchen and began to use the microwave oven to heat up something to eat. The oven belonged to Richard. Richard emerged from the bedroom and unplugged the microwave; Tucker plugged it back in; and Richard came out again and told Tucker not to use it. Richard appeared to Tucker to have been drinking, but was not "wasted."
June 18 was a Wednesday, although Tucker remembered it as a Monday.
After that, Richard and Hegler continued to argue for a considerable time, worse than Tucker had ever heard them argue before. Finally, Richard slapped Hegler, which was the first time either of them had been physically violent with the other. Hegler, who was taller and heavier than Richard, slapped Richard back, and Tucker did likewise. At that point, Richard left the apartment for a couple of hours, and Hegler put a chair in front of the front door to try to stop him from returning.
At the preliminary hearing, Tucker testified that this argument was less serious than other arguments he had heard Hegler have with Gaines. At trial, Tucker did not remember giving this testimony, but maintained that he told the truth at the preliminary hearing.
Tucker did not mention in his police interviews or preliminary hearing testimony that Richard slapped Hegler. The first time Tucker mentioned this was when he testified at trial. He explained his earlier omission by saying that at the time of the preliminary hearing he "[j]ust didn't feel it needed to be said," and was afraid to get in trouble, but he changed his mind about that afterwards. He admitted that he lied about some things at the preliminary hearing. In addition, Tucker was inconsistent in his trial testimony regarding the timing of this incident. On cross-examination by Mary's counsel, he stated that it did not occur until after Richard left the apartment and then returned.
Richard was five feet five inches tall and weighed 140 pounds. Hegler was five feet eleven inches tall and weighed over 200 pounds. Tucker, though only 17 or 18 years old at the time, was also physically larger than Richard.
Richard returned at what Tucker recalled was around 4:00 or 5:00 a.m., kicked the front door open, and argued with Hegler some more. Tucker hit him again, and he left a second time. By around noon, a maintenance person had come to repair the door. Richard returned while the maintenance person was there, and got into another argument with Tucker. The argument escalated into a physical altercation which Tucker started, and in which Tucker prevailed. Eventually, Hegler broke up the fight, and Richard left again.
A GPS tracking device on Richard's ankle placed him in the vicinity of the apartment from midnight to about 2:35 a.m. on June 18, and then again for a few hours beginning at 3:24 a.m. Tucker acknowledged at trial that his memory of when Richard was at the apartment that day was "vague."
Tucker did not mention this altercation between him and Richard until he testified at trial, and even then, his testimony was inconsistent; on cross-examination, he testified that he did not remember what happened after Richard broke down the door, but that there was no physical altercation. Tucker did not remember that during his prior testimony at the preliminary hearing, he denied ever fighting with Richard physically. At trial, Tucker admitted initiating several assaults against Richard during the events leading up to Hegler's death. Tucker admitted at trial that he lied to the police about this during his interview, and explained that he had a bad relationship with the local police, and did not want to go to jail for assault.
Richard's GPS tracking device indicated that he was at his workplace from 6:56 a.m. until 11:30 a.m., and returned to the apartment for about 22 minutes starting at 11:43 a.m.
Around 3:15 p.m. on the day of the shooting, a neighbor, Victoria Chandler, overheard Hegler talking on her cell phone. Chandler heard Hegler say, "I'm not gonna take that. He's not gonna disrespect me like that in my house." Half an hour to 45 minutes later, Chandler heard Hegler talking on her phone again, loudly and angrily asking for a telephone number.
Richard next visited the apartment for about 15 minutes around 5:00 or 6:00 p.m., during which time he argued with Hegler again, and told Hegler he was planning to move his belongings out of the apartment. Either during this visit or the prior one, Tucker overheard Richard's end of two separate cell phone calls (or possibly the same call). According to Tucker, during one of these calls Richard said, "Just pop her," and during the other (or possibly the same call), he used the name "Chiney," which was a nickname for Mary. Tucker understood the expression "pop her" to mean that Richard was talking about shooting Hegler, but did not take it seriously.
Richard's GPS tracking device placed him near the apartment from 4:29 p.m. to 5:01 p.m.
Tucker testified at the preliminary examination and at trial about Richard's saying "Chiney" and "pop her," but did not tell the police about this when he was initially interviewed. By the time of trial, Tucker no longer recalled overhearing Richard's cell phone calls, though he was able to refresh his recollection with the transcript of his earlier testimony. On cross-examination, Tucker acknowledged that he was not really listening to what Richard said during these cell phone calls. He also said he was not sure when the calls occurred, or if the "Chiney" and "pop her" terms were used in two separate calls or the same call.
Telephone records indicated that Richard and Mary talked via cell phone that afternoon. Richard's GPS records showed that he was at Mary's apartment from about 5:20 p.m. to 6:00 p.m. Mary was a security guard who was licensed to carry a .38 or .357 handgun. Like Richard, Mary was shorter than both Hegler and Tucker.
Tucker later gave significantly different accounts of what happened next. At trial, he testified that about an hour later, Richard returned to the apartment with Mary and two men whom Tucker knew as Mac and Vincent. Tucker had known Mac as a friend since childhood, but had "just seen Vincent around," and had never met Mary before. Tucker was not aware that Mary was Mac's mother, or that Mac's mother was Richard's sister. Tucker had heard references to a person named "Chiney," but did not know who she was. When Mac arrived at the apartment with Richard and Mary, Tucker exchanged a friendly greeting with him.
Richard's GPS tracking device placed him near the apartment from 6:18 p.m. to 6:23 p.m. At 6:42 p.m., the GPS device was tampered with, and apparently removed, because it stopped showing any movement. Employees of a nearby supermarket testified that a middle-aged African-American man came to the store shortly after 6:30 p.m. that day and asked for garden shears. Richard is African-American and was born in 1950. Later, the employees found a pair of garden shears on the floor of the store with its packaging removed.
Mac is referred to in portions of the record and briefs as "Lil Mac"; we will refer to him simply as Mac. In Tucker's pretrial contacts with the police, Tucker at first did not mention that anyone other than Richard and Mary came to the apartment at that point; he admitted at trial that he did not say Vincent and Mac were also there until after the police had already discovered that. Tucker explained at trial that the "code" by which he lived required that he not "snitch." He testified at the preliminary hearing, however, that not wanting to be a snitch was not the reason he did not tell the police about Vincent and Mac. At trial, Tucker said he did not remember that testimony, but averred that it was truthful; he also explained he believed it was "pointless" to tell the police about Vincent and Mac's presence at the scene, because he did not believe they would testify about the shooting. Tucker also acknowledged that he wanted to retaliate against Richard and Mary for his mother's death, but that if this proved not to be possible, he wanted to retaliate against Vincent and Mac. At trial, however, Tucker stated that he had gotten over his hostility to Vincent and Mac soon after the shooting.
When Richard and Mary entered the apartment, they said they had come to pick up Richard's things. Tucker was not surprised that Richard had brought people to help him move, and the behavior of Richard's companions did not lead Tucker to believe that anything untoward would occur. After 15 to 30 minutes, Richard went into his and Hegler's shared bedroom for a short time, during which the others present sat quietly in the living room. When Richard emerged from the bedroom, an argument ensued between Richard and Tucker. Hegler intervened, telling Richard and his companions not to put their hands on her son. Mary responded, "Don't put your hands on my brother." According to Tucker, things were happening very fast at that point, and it looked as though Richard and Mary were going to attack Hegler.
Richard's GPS tracker data did not accord with Tucker's recollection on this point. As already noted, the GPS records showed that Richard was in the apartment for a much briefer time—no more than three minutes in all—on the occasion of the shooting.
The parties continued to argue briefly, and then Mary pulled out a gun and fired one or two shots at Hegler from seven or eight feet away, hitting Hegler in the upper left chest or shoulder. The gun was a "fat" revolver with a medium length barrel. It appeared to Tucker, who was familiar with several types of firearms, to be either a "chrome .357," or a .22 that looked like a .357; it was smaller than a .44 magnum. While Mary shot Hegler, Vincent and Mac just sat there, and did not participate in the altercation, or threaten to do so.
Before he testified at trial, Tucker said Mary fired only one shot at his mother. At trial, Tucker admitted that his trial testimony was the first time that he said was not sure whether it was one shot or two.
Hegler received three gunshot wounds, from which she died soon after she was shot. Two bullets were recovered from Hegler's body, and one from the ceiling in her apartment. They were all fired by a similar weapon, and were all the same type of bullet, a .357 or .38 hollow point.
Rivera, the downstairs neighbor, testified that shortly before the shooting, she heard arguing from upstairs. The voices she heard included those of two men other than Tucker and Richard. Then she heard Hegler exclaim loudly, "Don't hurt my son," or "Don't kill my son." After that, she saw Tucker running downstairs from the apartment, and heard three or four gunshots in rapid succession. She went upstairs to check on Hegler, and found her lying in a pool of blood, unresponsive and apparently dead. Rivera then called 911. Rivera testified she did not hear Richard say anything at the time of the shooting, and did not hear anyone yell "Shoot the nigga," "Shoot that motherfucker," or anything like that.
At trial, Tucker gave the following version of the events immediately after Hegler was shot. Tucker said he heard Richard order Mary to "shoot that nigga, too" or "shoot that motherfucker, too." Mary then turned the gun toward Tucker, but Richard grabbed it from her, pointed it at Tucker, and started shooting. Tucker saw the gun in Richard's hand, but did not actually see Richard shoot at him, because by that time he had turned away and taken a few steps. Tucker ran out of the apartment and down the stairs to the parking lot, hearing several more gunshots as he did so. He was not hit, but "felt the wind of one bullet" passing by him as he was running toward the stairs.
Prior to trial, Tucker had consistently said Richard used the word "motherfucker" in this utterance, but at trial, Tucker said for the first time that the word was "nigger" or "nigga." Confronted with the discrepancies in his testimony at various times, Tucker said his memory about this and other aspects of the incident was "vague" and had "a lot of uncertainty."
When Tucker talked to a police officer at the scene, he said Richard had taken the gun from Mary and shot at him. At the preliminary examination, Tucker said that Richard tried to get the gun away from Mary, but did not succeed. At trial, Tucker did not remember testifying that he had not actually seen Richard take the gun from Mary; even after being confronted with his inconsistent testimony at the preliminary hearing, Tucker reiterated his trial testimony that Richard got possession of the gun and shot at him. Tucker was unable to explain why his account changed at the time of trial.
Tucker's statement about feeling a bullet go past him while he was on the stairs was made for the first time at trial.
As already noted, neighbor Rivera testified she saw Tucker running downstairs from the apartment, and then heard "three or more" gunshots. After Tucker left, Rivera saw four more people run downstairs: Richard; two African-American men in their late 20's, one with his hair in cornrows; and a shorter black person with braids, who later proved to be a woman.
Chandler, the neighbor who testified about hearing Hegler talking on her cell phone, heard three loud noises around 4:30 or 4:45 p.m., and another neighbor asked her if she had heard the gunfire. According to Chandler, at least 15 minutes, and possibly half an hour to an hour later, she heard a woman (whom she did not believe was Hegler) screaming, "Oh no, oh, no," and then quickly looked out her front door and saw three Black men going down the stairs; two were running, and a third was walking. The third man, Chandler later learned, was Tucker.
Downstairs neighbor Bryan Briggs also heard a woman shout "No, no, no," but testified that he heard this just before he heard the shots.
While Tucker was running away from the building that housed his mother's apartment, he passed Hatch, the apartment manager. Hatch did not recognize Tucker at the time, but found out later who he was. When Tucker ran past, Hatch was headed for the parking area with her daughter and two granddaughters, a small child and an infant. Tucker called out to Hatch that there was a "shooter," and that she should get her "babies" inside. Hatch and her family quickly got into their car, drove away, and called 911. As her daughter started the car, Hatch saw three people on the walkway of the apartment building: Richard; a short woman with her right hand in her pocket; and a taller, darker-skinned young man with dreadlocks.
When Tucker reached the parking lot, he turned and saw Richard, Mary, Mac, and Vincent jogging toward the spot where Richard usually parked. According to Tucker's trial testimony, Richard looked toward Tucker and said, "I'm going to get you" or "I'm going to kill you." Hatch also heard words to that effect directed at Tucker, but Hatch was positive that the statement was uttered by the younger man with dreadlocks, rather than by Richard. Tucker testified that after seeing Richard and his companions in the parking lot, he returned to the apartment, where he saw his mother lying on the floor. Rivera corroborated this, stating that after the people who chased Tucker downstairs had left, Tucker ran back upstairs and begged her to save his mother.
Shortly after that, Tucker told Briggs, the downstairs neighbor, that his mother's boyfriend (that is, Richard) had shot her, and expressed a desire for revenge against the man who had taken his mother from him. At trial, Tucker denied telling Briggs that Richard had shot Hegler; instead, Tucker recalled telling Briggs that "They shot my mom," without specifying who "they" were.
Neighbor Chandler testified that after the shooting, she saw the young man whom she later learned was Tucker standing outside the apartment building talking on his cell phone. He was very agitated and upset, said he needed help, and asked for a "banger" or "wop," which Chandler understood to mean a gun, because someone had just shot his mother. At trial, Tucker denied making any such request, and indicated that he did not know what a "wop" was. Shortly after Hegler was shot, the police arrived, and an officer took Tucker to the police station.
In the early morning hours of the day after the shooting, the police found Richard asleep under a car, with a blood-alcohol level of 0.23 percent. Richard told the police that he had been separated from Hegler for a long time, and had a new girlfriend. He denied knowing that Hegler had been killed. He stated that he went to a bar after work on the day of the shooting; did not remember what happened after that; and had not seen his sister "Chiney" in several months. At the mention of Tucker's name, Richard said "fuck him," and told the police that Tucker had beaten him up three days earlier.
After the shooting, the police searched Mary's home and her car. In her home, they found an empty holster; an unlocked gun lock; the key to a gun lock suitable for the type of weapon used to shoot Hegler; and a .38-caliber cartridge. They also found blood on the driver's seat, steering wheel column, and armrest of Mary's car.
Richard and Mary were each charged with murder (Pen. Code, § 187), and with personally discharging a firearm causing great bodily injury and death. (§ 12022.53, subds. (b), (c), (d).) In addition, Richard was charged with solicitation of the murder of Tucker. (§ 653f, subd. (b).) Richard was also charged with having four prior strike convictions, three of which were serious felonies, and one of which was a violent felony for which Richard served a prison term. (§§ 667, subds. (b)-(i); 667.5, subd. (a); 1170.12.)
All further undesignated statutory references are to the Penal Code, except that references to section 352 are to the Evidence Code.
The jury found both Richard and Mary guilty of first degree murder, and found the personal use of a firearm allegation true as to Mary, but not true as to Richard. Richard was also found guilty of soliciting Tucker's murder. In a bifurcated court trial, the judge found true the allegations as to Richard's prior convictions. Richard was sentenced to a total of 90 years to life in state prison. Mary was sentenced to 50 years to life in state prison. Both Richard and Mary filed timely notices of appeal.
III.
DISCUSSION
Richard and Mary both contend on appeal that the trial court erred in refusing to permit them to impeach Tucker with his arrest for possession for sale of illegal drugs. In addition, they each make several other arguments not raised by the other. We address the joint issue first, and then proceed to discuss each appellant's separate issues.
A. Refusal to Admit Evidence of Tucker's Drug-Related Arrest
Tucker was the only prosecution witness regarding Richard's cell phone conversation(s) before the shooting, and also the only one who saw the actual shooting. As noted earlier, his account of the relevant events varied over time. Accordingly, his credibility was a significant issue at trial for both appellants.
On May 23, 2009, about six months before appellants' trial, Tucker was arrested for loitering with the intent to engage in drug-related activity, in violation of Health and Safety Code section 11532. As of the date of appellants' trial, Tucker had not been charged with any crime in connection with the arrest. Appellants jointly moved for an order permitting them to impeach Tucker with that arrest, based on the account of the facts given in the police report. The police report indicated that when Tucker was arrested, he not only had drugs in his possession, but also had lied to the arresting officer. Appellants also wanted to point out to the jury that Tucker had not yet been prosecuted, implying that he might have been promised a benefit in exchange for his testimony against appellants.
The police report is not part of the record on appeal, but its contents were summarized by defense counsel at a pretrial hearing.
The trial court denied appellants' motions on two grounds: (1) the arrest was not for a crime of moral turpitude, and (2) proof of the incident would consume undue time. Both Richard and Mary argue on appeal that the trial court's ruling was an abuse of discretion, and resulted in a denial of their Sixth Amendment right to confrontation. Respondent argues that the trial court did not err, and that in any event, the error was harmless.
We need not decide whether the trial court erred in denying the motion, because there was no prejudice to appellants resulting from the ruling. The evidence at trial made it abundantly clear to the jury that Tucker's reliability as a witness was in serious doubt. Tucker admitted: (1) his memory of the incident was vague and uncertain; (2) he had been untruthful in some of his statements to the police and some of his preliminary hearing testimony; (3) his testimony changed over time, and some of it was revealed for the first time at trial; (4) he had a bad relationship with the police; and (5) he smoked marijuana with his mother on the day she was shot. It is also clear that the jury acted on its doubts about Tucker's credibility, because it acquitted Richard of personal use of a firearm despite Tucker's trial testimony that Richard grabbed the gun from Mary and shot at him.
"[N]ot every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. . . . Thus, unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, it is evident from the trial record that admitting the evidence of Tucker's arrest on a minor charge could not reasonably have produced a significantly different impression of Tucker's credibility, because the arrest evidence would only have been cumulative of the much more direct and damaging evidence that Tucker was an unreliable witness. Moreover, as respondent points out, several key aspects of Tucker's testimony were corroborated by other witnesses, or by forensic or circumstantial evidence. Thus, the jury was justified, on balance, in accepting those portions of Tucker's testimony, despite his flaws as a witness. There is no basis in the record for concluding that adding the arrest evidence to the other impeaching evidence would have shifted that balance. Accordingly, any error in excluding the arrest evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
B. Richard's Other Contentions
1. Admission of Evidence Regarding GPS Tracking Device
At the time Hegler was killed, Richard was required to wear a global positioning system (GPS) tracking device (GPS tracker) around his ankle. The requirement was imposed as a condition of Richard's parole, following his conviction in 1999 of one count of felony child molestation. Prior to trial, Richard moved under Evidence Code section 352 (section 352) to exclude evidence of his child molestation conviction. The trial court ruled that if Richard testified at trial (which he ultimately decided not to do), he could be impeached with the fact that he had a 1999 felony conviction involving moral turpitude, but that the nature of the conviction could not be revealed to the jury.
Richard also moved, under section 352, to exclude the evidence that he was required to wear the GPS tracker, and that he cut it off in the wake of Hegler's shooting. The trial court denied the motion, ruling that the probative value of this evidence, in placing Richard at the scene of the shooting and showing flight and consciousness of guilt, outweighed the potential prejudice to Richard from its admission.
On appeal, as he did below, Richard argues that the jury should not have been told that Richard was required to wear a GPS tracker, because they would likely infer from this that Richard was a convicted child molester, and the prejudicial impact of the evidence therefore outweighed its probative value. We review the trial court's ruling for abuse of discretion. (People v. Anderson (2001) 25 Cal.4th 543, 591.)
Richard characterizes the probative value of the GPS evidence as minimal, arguing that the evidence of Richard's presence at Hegler's shooting was undisputed, and that he would have been willing to stipulate to his whereabouts earlier that day, as well as his efforts to escape and evade detection after the shooting. As already noted, however, the prosecution's chief witness, Tucker, was markedly vague and inconsistent in his account of the events leading up to his mother's death, including the timing of Richard's various visits to the apartment. By providing independent, objective verification of Richard's movements, the GPS evidence corroborated those aspects of Tucker's testimony.
" 'Evidence that is identical in subject matter to other evidence should not be excluded as "cumulative" when it has greater evidentiary weight or probative value.' [Citation.]" (People v. McKinnon (2011) 52 Cal.4th 610, 669 [evidence of defendant's sister's violent attack on prospective prosecution witness was properly admitted as more probative than prejudicial, despite defendant's argument that it was cumulative of evidence that defendant himself had threatened same witness].) More specifically, "a trial court has discretion, within the limits of . . . section 352, to permit the prosecution to introduce evidence supporting a witness's credibility . . . when the prosecution reasonably anticipates a defense attack on the credibility of that witness." (People v. Mendoza (2011) 52 Cal.4th 1056, 1085.) Accordingly, contrary to Richard's contention, the GPS evidence in this case had more than minimal probative value.
We also are not convinced that the prejudicial effect of the GPS evidence was as devastating as Richard contends. As the prosecution argued at trial, the requirement that a person wear a GPS tracking device is not unique to convicted child molesters; it can also be imposed on pretrial detainees in home detention, as well as defendants who have committed less serious crimes, such as drunk driving. Moreover, the jury was not told why Richard wore the GPS tracking device, and there is nothing in the record that would have prompted the jury to assume or even speculate that the reason was that Richard was a child molester. On the contrary, the only evidence in the record regarding Richard's sexual behavior was that he had been in a cohabitation relationship, albeit a rocky one, with a consenting adult woman. Moreover, there was evidence that Richard was a habitual drinker of alcohol, so if the jury speculated at all about the reason he wore a GPS tracking device, it was most likely to believe it was connected to his drinking.
"When asked to exclude evidence as more prejudicial than probative [under section 352], the trial court has broad discretion. Its ruling will not be disturbed on appeal unless the prejudicial effect of evidence so admitted clearly outweighed its probative value. [Citations.]" (People v. Anderson, supra, 25 Cal.4th at p. 591.) Based on the overall record in the present case, and given this deferential standard of review, we are not persuaded that the trial court abused its discretion in admitting the GPS evidence.
2. Admission of Rivera's Testimony Regarding Statements by Hegler
As already noted, Hegler's neighbor Rivera testified at trial that Hegler told her Richard would hide Hegler's magnifying glass when he was angry at her, which prevented Hegler from reading or watching television. Although the presentation of this testimony violated a pretrial order, Richard's trial counsel chose not to object to it during Rivera's testimony, and instead asked the court on the following day to strike the testimony. At the conclusion of the trial, however, trial counsel withdrew this request because he did not want that part of the testimony highlighted for the jury. Instead, Richard's counsel stressed to the jury during closing argument that oral statements made outside of court must be viewed with caution.
On appeal, Richard contends that the trial court erred in admitting Rivera's hearsay testimony about his hiding Hegler's magnifying glass. Respondent acknowledges that the testimony was hearsay, but argues that the issue was forfeited by trial counsel's failure to move to strike the testimony as soon as it was given. Richard counters that trial counsel's objections were sufficient, but that if the issue was forfeited, he received ineffective assistance of counsel.
Respondent also contends that in any event, the evidence was harmless. In response to this alternative contention, Richard argues that the standard for harmless error on this issue is harmlessness beyond a reasonable doubt, because the admission of the evidence was a violation of the federal confrontation and due process clauses. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) Respondent contends, based on People v. Quitiquit (2007) 155 Cal.App.4th 1, 12-13, that the applicable standard for erroneous admission of hearsay evidence is whether it is reasonably probable that the outcome of the trial would have been more favorable to Richard if the evidence had not been admitted.
Our review of the record persuades us that any error in admitting Rivera's testimony was harmless beyond a reasonable doubt. Accordingly, we need not and do not resolve the other issues raised in the parties' briefs with regard to this evidence. The record reflects ample other evidence of the strained relationship between Richard and Hegler. It is undisputed, for example, that on the day Hegler was shot, Richard slapped Hegler during an argument, and when Hegler attempted to bar Richard from the apartment, he broke down the front door. Rivera's brief hearsay account of Richard's earlier history of petty vindictiveness in hiding Hegler's magnifying glass was merely a small detail in that overall picture.
3. Sufficiency of Evidence to Support Solicitation of Murder
Richard was convicted of the crime of solicitation of murder based on Tucker's testimony that after Mary shot Hegler, Richard urged her to shoot Tucker as well. On appeal, Richard contends that his conviction on this count was not supported by sufficient evidence, in that Tucker was the only witness to the facts supporting this charge, and his testimony was not corroborated by circumstantial evidence as required by section 653f, subdivision (f), which requires that solicitation of murder "shall be proven by the testimony of two witnesses, or of one witness and corroborating circumstances."
Respondent does not dispute the applicability of the corroboration requirement, but points to "other evidence" that "tended to connect Richard with the commission of the crime in such a way that could reasonably satisfy the jury that Tucker was telling the truth," citing People v. MacEwing (1955) 45 Cal.2d 218, 224. Specifically, respondent contends that corroboration was provided by: (1) Hatch's testimony that Richard wanted to move out of the apartment because of Tucker's presence in the household; (2) Hatch's testimony that when she saw Tucker running down the stairs after the shooting, there were people chasing him, and she heard one of them (though not Richard) say, apparently to Tucker, "You're next," or "We're going to get you"; (3) Rivera's testimony that just before the shooting, she heard a loud argument, during which Hegler yelled, "Don't hurt my son," and that four people chased Tucker down the stairs after the shots were fired; (4) Richard's statement to the police that Tucker beat him up a few days before the shooting, and his expostulation "fuck him" when the police mentioned Tucker; and (5) the evidence of Richard's flight after the shooting, his false exculpatory statements, and his attempt to conceal his whereabouts by removing his GPS tracker. Respondent contends that this evidence corroborates the charge by establishing that Richard and Tucker were enemies, and that the events surrounding the shooting of Hegler included some threatening activity directed at Tucker.
The evidence summarized above certainly corroborated Tucker's testimony that Richard harbored and expressed hostility toward him, and that after Hegler was shot, Richard and his companions chased Tucker down the stairs. The question is whether this evidence is sufficient, under section 653f, subdivision (f), to corroborate Tucker's testimony that Richard urged Mary to kill Tucker. On this point, both parties cite People v. Baskins (1946) 72 Cal.App.2d 728, 731, which states: "Corroborative evidence is additional evidence of a different character, to the same point. [Citation.] . . . The corroborative evidence need not be strong nor even sufficient in itself, without the aid of other evidence, to establish the fact. [Citations.]" As the California Supreme court put it more recently, the statute requires " 'at least one witness who gives "positive" or "direct" evidence of facts that are incompatible with innocence, and corroborating evidence of circumstances which, independent of the direct evidence, tend to show guilt. [Citations.]' [Citation.]" (People v. Phillips (1985) 41 Cal.3d 29, 75-76.)
The Supreme Court has also stated that "[t]he corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be corroborated is telling the truth. [Citations.]" (People v. MacEwing, supra, 45 Cal.2d at p. 224.) Significantly, however, the case law also holds that "[t]he corroborating evidence must be considered without the aid of the testimony which is to be corroborated, and it is not sufficient if it requires the interpretation and direction of such testimony in order to give it value. [Citations.]" (People v. Rissman (1957) 154 Cal.App.2d 265, 277; accord, People v. MacEwing, supra, 45 Cal.2d at p. 225 ["corroboration is not adequate if it requires aid from the testimony of the person to be corroborated in order to connect the defendant with the commission of the offense charged"].) In denying Richard's motion for acquittal on this charge, the trial court indicated that it believed Tucker's testimony was corroborated, "broad brush," by the other evidence. As the foregoing cases indicate, however, "broad brush" corroboration is insufficient; the evidence must independently confirm the solicitation, without the aid of interpretation based on the testimony of the witness to be corroborated.
In the present case, the evidence on which respondent relies for corroboration, viewed in isolation from Tucker's testimony, does not tend to show that Richard asked Mary to kill Tucker. Evidence of hostility and past altercations between two people, standing alone, cannot be sufficient to corroborate the testimony of one of them that the other asked a third person to murder him. To hold such evidence sufficient would essentially vitiate the corroboration requirement, because it would allow anyone in a demonstrably hostile relationship to be convicted of soliciting murder based solely on the testimony of the purported victim, without further substantiation. (See People v. Phillips, supra, 41 Cal.3d at p. 76 ["The purpose of section 653f, subdivision (d) is to guard against convictions for solicitation based on the testimony of one person who may have suspect motives"].)
Respondent also relies on Rivera's testimony that shortly before she heard the shots, she heard Hegler yell out a command not to hurt her son. This is consistent with Tucker's testimony that shortly before Hegler was shot, Hegler told Richard and his companions not to put their hands on her son. The alleged solicitation of murder, in contrast, occurred after Hegler had already been shot; Tucker's testimony was consistent on this point. Thus, due to the timing of the remark that Rivera heard Hegler make, Rivera's testimony does not corroborate Tucker's testimony that Richard asked Mary to shoot Tucker.
Respondent asserts that Richard's flight and related attempts at concealment after the incident are corroborative of the charge. However, Richard's behavior after Hegler was shot could just as easily have been prompted by fear that he would be apprehended for Hegler's shooting. For that reason, it does not provide the kind of independent corroboration that the case law requires.
None of the corroboration cases relied upon by respondent compel a different conclusion. In People v. Baskins, supra, 72 Cal.App.2d 728, the defendants, who were sisters, were charged with asking a man who was a lodger in one sister's house to murder the other sister's husband. Two other lodgers each testified independently that the sisters had also asked him to kill the same person. Unsurprisingly, this evidence was held sufficient to corroborate the primary witness's testimony. (Id. at p. 731.) People v. MacEwing, supra, 45 Cal.2d 218, involved a conviction for solicitation of abortion. The applicable statute required corroboration of the testimony of the woman who had the abortion. The trial court erroneously instructed the jury that it could convict the defendants based solely on the woman's testimony, if it found her credible. The Supreme Court held the instruction erroneous, and reversed. (Id. at pp. 222-226.) People v. Phillips, supra, 41 Cal.3d 29, was a capital case in which, during the penalty phase, the prosecution introduced letters the defendant sent to another person while awaiting trial, soliciting the murders of several people who were potential witnesses against the defendant. The Supreme Court held that the corroboration requirement was satisfied by the letters themselves. (Id. at p. 76.)
In short, we agree with Richard's contention that his conviction for soliciting Tucker's murder was not supported by sufficient independent corroboration of Tucker's testimony. Accordingly, we reverse that conviction, and remand for resentencing.
C. Mary's Other Contentions
1. Trial Counsel's Failure to Object to Evidence of Telephone Call
As already noted, Tucker testified at trial about overhearing Richard's end of either one or two cell phone calls on the day of the shooting, during which Richard said "Chiney" (a nickname for Mary) and the phrase "pop her." (We will refer to this testimony as the phone call evidence.) At trial, Tucker did not recall overhearing the conversation(s) until he refreshed his recollection by reviewing his preliminary hearing testimony. Even then, he could not recall whether the two utterances occurred during the same conversation or two separate conversations; when he overheard the conversation(s); or anything about the context in which Richard uttered the words.
Mary's trial counsel apparently objected to the phone call evidence during a bench conference while Tucker was reviewing his preliminary hearing testimony, but the conference was not reported. Later, after the prosecution rested, Mary's trial counsel made a motion under section 1118 to dismiss the murder charge against her for insufficient evidence. During the colloquy regarding that motion, the prosecutor argued that the defense had waived any objection to the admission of the phone call evidence by failing to make a timely objection. Mary's counsel responded by arguing that the objection had been preserved by virtue of the unreported bench conference. The trial court ruled that the phone call evidence was admissible against Mary under the coconspirator exception to the hearsay rule, and denied the motion to dismiss the murder charge.
On appeal, Mary does not argue that the trial court's ruling on the coconspirator exception was erroneous. Rather, she now contends that her trial counsel rendered ineffective assistance by failing to object to the admission of the phone call evidence on the additional ground that it was more prejudicial than probative, and thus should be excluded under section 352. She argues that the probative value of the phone call evidence was tenuous, given Tucker's poor recollection, and was outweighed by the prejudicial effect of its "strong tendency . . . to unduly obscure the substantial evidence that this encounter was not, at least on the part of Mary Gaines, premeditatedly violent . . . ."
When we review on direct appeal a claim of ineffective assistance of trial counsel based on counsel's failure to make an objection to evidence, we cannot reverse unless the appellant demonstrates all of the following: (1) there was no conceivable tactical purpose for counsel's failure to object (People v. Cash (2002) 28 Cal.4th 703, 734-735); (2) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland); People v. Scott (1997) 15 Cal.4th 1188, 1212); and (3) there is a reasonable probability, sufficient to undermine confidence in the outcome of the trial, that absent counsel's deficient performance, the result would have been more favorable to the appellant (Strickland, supra, 466 U.S. at p. 694; In re Wilson (1992) 3 Cal.4th 945, 950).
It is upon this last obstacle that Mary's argument founders. We are not persuaded that an objection to the phone call evidence under section 352 would have been sustained. The evidence was not misleading or confusing, nor was it particularly inflammatory in the context of the overall facts of the case. It was prejudicial only in the sense that it tended to show guilt, but this is not the type of prejudice with which section 352 is concerned. (People v. Eubanks (2011) 53 Cal.4th 110, 144; People v. Zapien (1993) 4 Cal.4th 929, 958.) By the same token, despite Tucker's hazy recollection, the evidence was highly probative to prove premeditation and deliberation by each defendant. Indeed, it was the primary evidence that Richard intended Hegler's killing even before he returned to the apartment with Mary, and the only evidence shedding any light on why Mary brought her gun with her to Hegler's apartment.
Because a section 352 objection to the phone call evidence would not have been meritorious, Mary cannot have been prejudiced by her counsel's failure to raise it. (See, e.g., People v. Scaffidi (1992) 11 Cal.App.4th 145, 155 ["Because we have determined that any objection to the admissibility of [the challenged evidence] would not have been successful and therefore any such objection would not have resulted in a fair probability of changing the result in the trial, we hold that defendant has no grounds for reversal based on ineffective assistance of counsel"].) Accordingly, we decline to reverse Mary's conviction on the ground of ineffective assistance of counsel.
2. Instruction on Unjoined Perpetrators
As already noted, Richard and Mary were accompanied, at the time of the shooting, by two young men referred to as Vincent and Mac. The neighbors' testimony indicated that two other men accompanied Richard in chasing Tucker down the stairs after Hegler was shot, and the jury reasonably could have inferred that those men were Vincent and Mac. The trial court instructed the jurors with CALJIC No. 2.11.5, which cautions jurors against speculating why other persons who may have been involved in the crime were not joined as codefendants in the trial.
Mary now contends that the trial court erred in giving this instruction. Her first basis for this contention is that the instruction should not be given when the evidence is such that the jury could reasonably find that the non-prosecuted third parties, rather than the defendant, committed the charged crime. Mary concedes, however, that this argument is foreclosed by the California Supreme Court's holding in People v. Farmer (1989) 47 Cal.3d 888, 918, abrogated on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6, and that this court is bound by that holding. Mary appears to have raised this argument solely in order to preserve the issue for future review by other courts. Accordingly, we reject it on the authority of People v. Farmer, supra.
In any event, the factual predicate for Mary's argument that the instruction should not have been given—i.e., that a reasonable jury could have found third-party culpability—is missing. While many aspects of Tucker's testimony were vague or conflicting, he was firm about at least one thing: he consistently attributed the shooting of Hegler to Mary, and Mary alone. There were only two items of evidence even remotely indicating culpability for Hegler's death on the part of anyone other than Mary and Richard: (1) Tucker's remark to Briggs, shortly after the shooting, that his mother's boyfriend (or "they") shot his mother; and (2) Tucker's acknowledgment that he entertained a fleeting desire for revenge against Vincent and Mac after his mother's death. Neither of these was sufficient to implicate Vincent or Mac in Hegler's murder, particularly in light of Tucker's affirmative testimony that they were not involved in the shooting, and that his antipathy toward them dissipated within days. Thus, the jury could not reasonably have found that Vincent or Mac, rather than Mary, was responsible for shooting Hegler.
Mary also presents an alternative argument for the impropriety of the unjoined perpetrators instruction. This argument is based on the fact that at trial, the court permitted police witnesses to testify that they tried unsuccessfully to find Mac, whose real name they determined was Frederick Gaines; showed a photo lineup that included Vincent to Hegler's neighbors, who proved unable to identify him; and identified, arrested, and interviewed Vincent, but then released him. Mary argues that when coupled with this evidence, the instruction had the effect of foreclosing her right to present a defense of third party culpability, because it prevented her from arguing to the jury that the police failed to make adequate efforts to investigate Vincent and Mac's role in the shooting. The end result, she contends, was to infringe her Sixth and Fourteenth amendment rights to due process and a fair trial.
Mary bases this argument on Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes). In Holmes, the defendant sought to introduce evidence that he was the victim of a frame-up by the police, and that a third party was actually guilty of the crimes charged. The trial court refused to allow the defendant to introduce that evidence, based on a state rule of evidence precluding a criminal defendant from introducing evidence of third party culpability if there was strong forensic evidence of the defendant's guilt. The United States Supreme Court held the state evidentiary rule unconstitutional, and reversed the conviction.
Holmes, supra, 547 U.S. 319, is distinguishable. Nothing in the third party culpability instruction given in this case precluded Mary from introducing evidence that Vincent or Mac, rather than Mary herself, shot Hegler. Moreover, Mary points to no indication in the record that she possessed any such evidence, much less that she offered it and the trial court excluded it. Thus, Holmes does not support Mary's argument that her conviction should be reversed due to the trial court's inclusion of CALJIC No. 2.11.5 in the jury instructions.
3. Instruction on Equal Liability of All Principals
Mary challenges her conviction based on asserted error in the trial court's instruction on equal liability of principals (the equal liability instruction). This instruction was based on CALJIC No. 3.00, and read as follows: "Persons who are involved in committing a crime are referred to as principals in the crime. Each principal regardless of the extent or manner of participation is equally guilty. Principals include: One, those who directly and actively commit the act constituting the crime; or two, those who aid and abet the commission of the crime." (Italics added.)
Mary contends that the language italicized above is inaccurate and misleading in a homicide case, because it conflicts with case law holding that the degree of culpability of a person who aids and abets a homicide must be determined separately from that of the direct perpetrator, because the two individuals may have acted with differing mental states. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117-1119 [aider and abettor may be found guilty of greater homicide-related offense than committed by actual perpetrator]; People v. Nero (2010) 181 Cal.App.4th 504, 507, 514 [aider and abettor may be found guilty of lesser homicide-related offense than committed by actual perpetrator]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 (Samaniego) [in homicide case, aider and abettor's guilt may be less than perpetrator's, if aider and abettor has less culpable mental state].)
Respondent contends that any error in giving the equal liability instruction in this case was forfeited by Mary's trial counsel's failure to request that the instruction be modified or qualified to make clear that it does not apply to homicide crimes. Generally, "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1024.) Because we conclude that any error here was harmless beyond a reasonable doubt, we need not reach this issue. Nonetheless, we note that Mary's argument is that the equal liability instruction was not "correct in law" under the circumstances of this case, because it permitted the jury to convict Mary of first degree murder on a premeditation and deliberation theory even if it found that only Richard, and not Mary, premeditated and deliberated the murder of Hegler. A defendant's claim that an instruction misstated the law asserts a violation of the defendant's substantial rights, and thus "is not of the type that must be preserved by objection. [Citations.]" (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; see § 1259.)
Based on McCoy, Nero, and Samaniego, CALJIC No. 3.00 was revised by West's Committee on California Criminal Jury Instructions in the spring of 2010. It now brackets the phrase "equally guilty" and allows it to be replaced in appropriate cases with the phrase "guilty of a crime." It also adds a second paragraph, to be given in murder cases (inter alia), noting that in such cases, "[i]f the aider and abettor's mental state is more culpable than that of the actual perpetrator, that person's guilt may be greater than that of the actual perpetrator," and vice versa.
The committee explained in a Use Note that the "spring 2010 revision incorporates language reflecting the holding in People v. McCoy (2001) 25 Cal.4th 1111 . . ., and People v. Samaniego (2009) 172 Cal.App.4th 1148 . . . . These cases hold that in a murder or attempted murder prosecution, not involving felony-murder or the natural and probable consequences doctrine, the guilt of an aider and abettor may be equal to, greater or less than that of the actual perpetrator depending upon the mens rea of the aider and abettor. If this issue arises, delete the bracketed phrase 'equally guilty' and use the alternative, 'guilty of a crime' and the last bracketed paragraph. The committee also has included a blank space in brackets should the trial court conclude this principle is applicable to a crime other than murder or attempted murder. [¶] CALJIC 3.00 and CALJIC 3.01 should be given sua sponte in every case in which any defendant is prosecuted as an aider and abettor." (Italics omitted.)
The CALCRIM equivalent to CALJIC No. 3.00 is CALCRIM No. 400. CALCRIM No. 400, like CALJIC No. 3.00, is to be given when "the prosecution is relying on aiding and abetting. . . ." (Bench Notes to CALCRIM No. 400 (2012), p. 167.) As noted in People v. Lopez (2011) 198 Cal.App.4th 1106, the CALCRIM instruction was also amended, apparently after it was given to the jury in Lopez, to remove the reference to principals and aiders and abettors being "equally guilty." (198 Cal.App.4th at p. 1119, fn. 5.)
In the present case, Mary was prosecuted for Hegler's death as a perpetrator, not as an aider and abettor. Nonetheless, Mary contends that the equal liability instruction prejudiced her, in the circumstances of this case, by leading the jury to believe that if it found malice and premeditation on the part of Richard (the aider and abettor), it was required to convict Mary (the direct perpetrator) of first degree murder as well, without assessing her state of mind separately. Mary argues that in the absence of the equal liability instruction, the evidence would have supported a jury verdict convicting her of second-degree murder or involuntary manslaughter, based on sudden quarrel or imperfect defense of another.
In closing argument, the prosecutor stressed that even if the jury believed Richard took the gun from Mary and fired subsequent shots, Mary was clearly the person who fired at Hegler first, and caused her death. And, as already noted, the jury appears not to have believed that Richard fired any shots, as it found the personal weapon use allegation true as to Mary only, and not true as to Richard.
"In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.]" (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.) Careful attention must be directed to the words actually spoken to the jury and "the way in which a reasonable juror could have interpreted the instruction." (Sandstrom v. Montana (1979) 442 U.S. 510, 514.) " 'Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
In the present case, in addition to CALJIC No. 3.00, the jurors were also instructed as to the elements necessary to prove murder in the first degree, including the mental state required. The jury was also expressly instructed that it had to consider whether Mary's individual state of mind, independently of Richard's, when assessing her defense that she acted in the defense of her brother. The relevant instruction told the jury: "Evidence has been presented that on prior occasions the alleged victim threatened or assaulted the defendant Richard Gaines, or participated in an assault or threat of physical harm upon the defendant Richard Gaines. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant Mary Gaines actually and reasonably believed her brother's life or physical safety was endangered at the time of the commission of the alleged crime."
The need to evaluate the charges separately and independently against each defendant was also expressly covered by yet another instruction, which read: "You must decide separately whether each of the defendants is guilty or not guilty. If you cannot agree upon a verdict as to both defendants, but do agree upon a verdict as to any one of them, you must render a verdict as to the one as to whom you agree."
In assessing whether the challenged instruction misled the jury, we also consider the arguments of counsel. (People v. Young (2005) 34 Cal.4th 1149, 1202; People v. Fiu (2008) 165 Cal.App.4th 360, 370 ["The meaning of instructions is tested by 'whether there is a "reasonable likelihood" that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel' "].) In his initial closing argument, the prosecutor told the jury that "[e]ven if you don't think she [i.e., Mary] intended to kill," it should still convict her of second degree murder, thus making it clear by implication that Mary's individual state of mind was the deciding factor. In his closing, Mary's trial counsel stressed that in assessing Mary's degree of culpability, if any, for the killing of Hegler, "You have to go to the mind set of the person, that is, Mary Gaines," and "look at it from Mary Gaines' perspective." He also argued that Mary's plan to travel to a family reunion the day after the shooting showed that "this is not an intentional, premeditated killing." Finally, in the prosecutor's rebuttal argument, he underscored the need for the jury to ask itself, specifically with regard to Mary individually, "why would [she] even fire that gun," and "[w]hat motivated [her] to bring her loaded gun to this apartment?" In disputing Mary's proffered defenses of sudden quarrel or imperfect defense of another, the prosecutor urged the jury to consider "how quickly [Mary] jumped into this fight."
In short, viewing the jury instructions as a whole, in the context of counsel's arguments, we are persuaded beyond a reasonable doubt that the jury correctly understood it could not find Mary guilty of first degree murder unless it found she personally possessed the requisite state of mind. Thus, in the overall context, the equal liability instruction did not communicate to the jury an incorrect principle of law.
Even assuming the equal liability instruction were incorrect, respondent contends that any such error was harmless. When, as Mary argues occurred here, an instruction " 'omits or misdescribes an element of a charged offense . . . the effect of this violation is measured against the harmless error test of Chapman v. California (1967) 386 U.S. 18 . . . .' [Citation.] Under that test, we ask whether beyond a reasonable doubt the jury verdict would have been the same absent the error." (People v. Nero, supra, 181 Cal.App.4th at pp. 518-519.)
We disagree with Mary's contention that the evidence of premeditation and deliberation on her part was weak. Mary does not contest the jury's implied findings that she brought her gun to Hegler's apartment, and that she shot Hegler. Neither Richard nor Mary contests the jury's finding of premeditation and deliberation as to Richard. Thus, the only issue for this court is whether the evidence regarding Mary's state of mind was sufficient to justify the jury in making the same finding as to her.
Mary raises this contention both in support of her argument that the asserted error in giving the equal liability instruction was prejudicial, and as a separate basis for reversal. However, she does not challenge the instructions the jury was given regarding premeditation and deliberation.
In our view, the following evidence is sufficient to support the jury's finding that not only Richard, but also Mary premeditated Hegler's killing. First, during one of Richard's earlier visits to the apartment on the day of the shooting, Tucker overheard Richard's end of two separate cell phone calls (or possibly the same call). Telephone records confirmed that Richard and Mary talked via cell phone that afternoon. Tucker heard Richard say Mary's nickname, "Chiney," and the words "Just pop her." Tucker understood the expression "pop her" to mean that Richard was talking about shooting Hegler. This evidence would support the jury's finding that Richard communicated in advance to Mary that he wanted Hegler shot.
Second, Mary was a security guard who was licensed to carry a .38 or .357 handgun. It was apparent from the police search of Mary's apartment that before bringing her gun to Hegler's apartment, Mary took the handgun out of its holster, and unlocked and removed its trigger lock. Thus, there was ample evidence to support the finding that Mary brought her gun to Hegler's apartment intentionally, and that she anticipated shooting the gun once she arrived.
Based on this evidence of premeditation and deliberation on Mary's part, we conclude that any error in giving CALJIC No. 300, in the form it was given, was harmless beyond a reasonable doubt. Based on the same evidence, we also reject the related argument that the evidence of premeditation and deliberation was not sufficient to support Mary's first degree murder conviction. Accordingly, we affirm.
II. DISPOSITION
Richard's conviction for first degree murder, and the true findings as to his prior strikes, are AFFIRMED. Richard's conviction for solicitation of murder is REVERSED for insufficient corroborative evidence. With respect to Richard, the case is remanded for resentencing in light of the reversal of Richard's conviction for solicitation of murder.
The judgment as to Mary is AFFIRMED in its entirety.
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RUVOLO, P. J.
We concur: _______________
RIVERA, J.
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SEPULVEDA, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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