Opinion
C078214 C078601
07-25-2018
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JOSEPH GODINES, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. PATRICK JEROME MCPHERSON et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F05321)
Defendants Patrick Joseph Godines, Patrick Jerome McPherson, and Travis Monrow Mabson were all convicted of felony murder, attempted robbery, and burglary after their attempt to rob Michael Sanderson in his apartment ended in Sanderson's death. All three defendants now appeal those convictions arguing a variety of instructional errors. Godines separately contends the court erred when admitting a coconspirator's statement implicating him in the crime and that cumulative error resulted. Mabson challenges the sufficiency of the evidence corroborating the testimony of a coconspirator, and the foundation supporting a detective's testimony about cell phone towers. McPherson assigns error to the trial court for denying him the opportunity to reopen his closing argument. Finding no merit in defendants' claims, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 28, 2011, between 5:00 p.m. and 6:00 p.m., defendant Patrick McPherson texted or called his friend Jeanette Campbell and asked if she wanted to make money stripping for a man he knew. After the phone call, Campbell asked her friend Aubry Toews to help her be a distraction during a robbery at a man's house. Toews agreed. The two women then went to McPherson's apartment and met Mike Deed. McPherson and Deed told the women that they knew a man who had $50,000 to $70,000 in a black bag in his apartment. The group was going to go to the man's apartment, where the men would look for the black bag while the women distracted him.
Deed drove the group to Michael Sanderson's apartment. When they got there, McPherson sold Sanderson a large gun. Sanderson then told the women to stay and the men to leave, despite McPherson's request to stay to look after the women. Toews did not want to stay without the men, so the group left. When they got to the car, Campbell told Toews she wanted to go back to Sanderson's apartment so she could make some money. After some convincing, Toews agreed to accompany Campbell.
Once the women returned to Sanderson's apartment, Sanderson and Campbell decided to go to the liquor store and leave Toews at the apartment with Sanderson's friend Vincent Van Hooser. Toews thought Van Hooser was an "inside man" because Deed had told her someone would be in the apartment to make sure nothing bad would happen to her. While Sanderson and Campbell were gone, McPherson texted Toews to look around the apartment for the black bag and to tell him when she could get it so he would be prepared to drive the women away. Toews responded that she was looking for the bag but testified at trial that she did not actually look for it. At the same time, Campbell was communicating with McPherson through text messages. McPherson asked Campbell if she was okay and whether she had seen the black bag in Sanderson's apartment. Campbell had seen the black bag in Sanderson's lap when she first walked into the apartment but did not see it again.
Testimony at trial established Van Hooser was Deed's brother-in-law.
When Campbell and Sanderson got back to the apartment, Campbell told Toews about a new plan to rob Sanderson. Instead of the women distracting Sanderson, the new plan was for the men to come into the apartment with guns and rob Sanderson of the money while the women acted like victims of the robbery. Toews did not want to be involved with guns so the plan was revised for her to make sure when the armed men arrived, the front door was open so the men could enter and then she could leave the apartment.
For the next hour, Campbell, Toews, Sanderson, and Van Hooser watched television and talked. Campbell started drinking the vodka she and Sanderson bought at the liquor store and Sanderson and Van Hooser smoked methamphetamine. After smoking the methamphetamine, Sanderson acted paranoid and locked the front door by jamming it shut with a stick.
At some point, Sanderson took a shower. Toews thought that was a good time to rob Sanderson so she texted McPherson to come into the apartment. McPherson responded that he was 10 minutes away but told Teows to make sure the front door was open when he got there. Using Teows's phone, Campbell texted McPherson to wait to rob Sanderson until after he got out of the shower. She then updated McPherson when Sanderson got out of the shower and told McPherson to be at the apartment in 10 to 15 minutes. McPherson responded that he was on his way and that Campbell needed to be having sex with Sanderson when the robbery occurred to distract him.
After his shower, Sanderson and Campbell went into Sanderson's bedroom so Campbell could dance for him. On her way into the bedroom, Campbell texted Toews to go outside to smoke so the door would be open for the men to "come into the house and lay it down." Toews testified that the phrase "lay it down" meant to "[p]ut people down with guns" in order to rob them. Around the time Campbell went into Sanderson's bedroom, McPherson also texted Toews to distract Van Hooser by dancing for him and to make sure the front door was unlocked. Toews texted McPherson she would signal him when it was time for him to come into the apartment.
McPherson texted Toews when he got to Sanderson's apartment complex. Toews then texted, "now, now, now" to McPherson when she was ready for the robbery to occur. McPherson texted Toews to leave the apartment and jump in the car. On her way to the car, Teows saw defendants Patrick Godines and Travis Mabson get out of Godines's car and walk toward Sanderson's apartment. The men each wore a mask. When she passed Godines and Mabson, Toews told them to go to apartment 65.
Toews got in the backseat of the car. Both of the men then came back and got inside the car. They said they went into the wrong apartment and wanted to leave. McPherson then drove the car to the opposite side of Sanderson's apartment where Toews convinced the men that they could not leave and needed to get Campbell. Toews then walked Godines and Mabson to Sanderson's apartment. Godines had a gun. She rang the doorbell and covered the peephole. When Van Hooser answered the door, he held up his hands and told the men that the money was in the back room. One of the men pointed a gun at Van Hooser and told him to get on the ground. Godines went into the apartment and Mabson followed. On his way into the apartment, Mabson grabbed Van Hooser and slammed the door shut. Toews returned to the car where McPherson was waiting in the driver's seat.
Godines opened the door to the bedroom where Campbell was dancing for Sanderson and turned on the lights. He pointed a gun at Sanderson and demanded to know where Sanderson kept his money. Sanderson moved toward the door and Godines fatally shot Sanderson in the chest. Godines then told Campbell to "[f]ind the money" before he ran out of the apartment. Campbell also ran out of the apartment and followed Godines and Mabson to the car.
Once in the car, McPherson drove the group to a second-story apartment. Campbell and Toews recalled seeing a fish tank in the apartment. On the way, Godines admitted he shot Sanderson. Once at the second-story apartment, Deed came to pick up McPherson, Campbell, and Toews and took them to McPherson's apartment.
The day after the murder, Campbell had numerous phone contacts, including calls and text messages, with McPherson. She talked with McPherson about going to the police and McPherson said he understood her decision to talk with them. He did, however, tell her to leave his name out of any statement she gave to the police. During one phone conversation, McPherson also relayed a threat from another person to Campbell that she "better not snitch." McPherson also texted Toews warning her to not say anything about the murder.
Both Campbell and Toews eventually pled guilty to voluntary manslaughter and received six years in prison in exchange for their testimony. The jury was instructed on aiding and abetting and conspiracy liability, but was not instructed on conspiracy as a lesser included offense. The trial court also instructed the jury with other instructions relevant to conspiracy, including withdrawal from a conspiracy and the proper use of coconspirator statements. The prosecutor argued Godines's guilt for felony murder under a direct perpetrator theory and Mabson's and McPherson's under an aiding and abetting theory. The jury found all defendants guilty of first degree felony murder, attempted robbery, and burglary.
DISCUSSION
I
Sufficient Independent Evidence Connected Mabson To The
Crime, Thus Corroborating Toews's Testimony
Mabson contends there was insufficient independent evidence connecting him to the commission of the crime to corroborate Toews's accomplice testimony that he was one of the perpetrators, and thus his conviction cannot stand. We disagree and conclude that Toews's testimony was sufficiently corroborated by independent evidence of Mabson's guilt.
"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." (Pen. Code, § 1111.)
All further section references are to the Penal Code unless otherwise indicated.
"An accomplice's testimony must be corroborated by independent evidence which, without aid or assistance from the accomplice's testimony, tends to connect the defendant with the crime charged. [Citations.] To determine if sufficient corroboration exists, we must eliminate the accomplice's testimony from the case, and examine the evidence of other witnesses to determine if there is any inculpatory evidence tending to connect the defendant with the offense. [Citations.] '[C]orroboration is not sufficient if it requires interpretation and direction to be furnished by the accomplice's testimony to give it value . . . .' [Citation.] It must do more than raise a conjecture or suspicion of guilt, however grave. [Citations.] On the other hand, unless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal." (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.) "Although corroborating evidence need only be slight and may be entitled to little consideration when standing alone [citations], it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators. [Citations.] Likewise, it is insufficient to show mere suspicious circumstances." (Ibid.)
We do, however, consider the entire conduct of the defendant and the accomplice-witnesses, their relationships with each other, and their acts during and after the commission of the crime. (People v. Romero and Self (2015) 62 Cal.4th 1, 32-33; People v. Narvaez (2002) 104 Cal.App.4th 1295, 1304-1305.) As this court has held, "proof of association in such close proximity in both time and place as to connect [the defendant] with participation" in the crime can be sufficient corroboration. (People v. Davis (1962) 210 Cal.App.2d 721, 729.) The evidence "need not independently establish the identity of the victim's assailant" (People v. Abilez (2007) 41 Cal.4th 472, 506), nor corroborate every fact to which the accomplice testifies (Davis, at p. 730), it need only corroborate a portion of the accomplice's testimony in such a way as to satisfy to the jury that the accomplice is telling the truth (People v. Vu (2006) 143 Cal.App.4th 1009, 1022; People v. Sanchez (1965) 232 Cal.App.2d 812, 816).
Further, it is important to note here the " 'testimony' within the meaning of Penal Code section 1111 includes all oral statements made by an accomplice or coconspirator under oath in a court proceeding and all out-of-court statements of accomplices and coconspirators used as substantive evidence of guilt which are made under suspect circumstances. The most obvious suspect circumstances occur when the accomplice has been arrested or is questioned by the police. These circumstances are most likely to induce self-serving motives and hence untrustworthy and unreliable evidence." (People v. Jeffery (1995) 37 Cal.App.4th 209, 218.)
Here, Mabson argues the evidence other than Toews's testimony showed that Mabson merely "had a connection to Godines and had the opportunity to commit the crimes because he lived within several miles of the crime scene, but nothing more." The People, on the other hand, contend that "evidence of cell phone calls and text messages, along with the evidence of the 'fish tank' in the apartment appellants, Toews, and Campbell visited after the murder, was sufficient to corroborate the accomplice testimony of Toews." The People also rely on a text message sent from Mabson's phone earlier on the night of the killing and a detective's testimony that Mabson was bigger than Godines.
We first address the detective's testimony about Mabson's size. Sacramento County Sheriff's Detective Tom McCue, one of the lead investigators in the Sanderson homicide, testified that when he interviewed Mabson and Godines in the days after the crime, Mabson was six feet four inches tall and weighed 200 pounds, while Godines was "listed as six-one, 140 pounds." According to the People, this testimony corroborated Toews's statement to Detective McCue in an interview in June 2012 that Mabson was "much bigger" than Godines. The problem with this argument is that it ignores the rule set forth above, that "[a]n accomplice's testimony must be corroborated by independent evidence which, without aid or assistance from the accomplice's testimony, tends to connect the defendant with the crime charged." (People v. Falconer, supra, 201 Cal.App.3d at p. 1543, some italics added.) Here, the testimony of Detective McCue that Mabson was three inches taller and 60 pounds heavier than Godines was "listed" when Detective McCue interviewed them has no tendency to connect Mabson to the killing of Sanderson, let alone any tendency to do so independently from what Toews told Detective McCue about their comparative size. Under section 1111, the independent evidence we must look for to corroborate Toews's testimony is not simply evidence that corroborates extraneous details of her testimony -- like how big one of her coparticipants was compared to another -- but rather evidence that corroborates her testimony that Mabson was one of the participants in the crime. Thus, it must be evidence that "tend[s] to connect the defendant with the offense." (People v. Nelson (2011) 51 Cal.4th 198, 218.) And the corroborative value of that evidence truly must be independent of the accomplice's testimony (which includes the accomplice's responses to police questioning): that is, its tendency to connect the defendant with the offense must appear "without aid from the accomplice's testimony." (Ibid.) That is simply not the case with Detective McCue's testimony about Mabson's size compared to Godines's size.
Next, we address the text message sent from Mabson's phone earlier on the night of the killing. The evidence showed that just before 10:22 p.m. on the night of the killing, Mabson's cell phone received the following text message: "Wutchu doin babe? 110%." A minute later the following response came from Mabson's phone: "Smoking, bout to get redy to lay it dwn! Wut u doin?" Two and one-half minutes later, the other person responded, "Debating on weather i wana drink this 2nd bottle wit them or go to bed, i think ima go to bed im rly nt tryna b sick 2maro. 110%." Two minutes later came this response from Mabson's phone: "I heard that babe, don't make yourself sick, you took one dwn wit them."
The times shown on the cell phone records are in Greenwich Mean Time, which is seven hours ahead of our time.
The People contend that given the timing of these text messages in relation to when Godines's cell phone was pinging off the tower closest to Mabson's apartment (approximately 30 minutes later) and when Mabson's cell phone was pinging off the tower closest to Sanderson's apartment (roughly one hour later), "the jury could reasonably infer that [by saying he was 'bout to get ready to lay it down'] Mabson was not meaning to convey that he was going to bed, but rather was using a slang term meant to convey that he was going to get ready to carry out a robbery." The problem with this argument is that the People point to no evidence whatsoever that the phrase "lay it down" is "a slang term for . . . a robbery." Mabson points to testimony from Toews that she interpreted the phrase "lay it down" to mean "[p]ut people down with guns" in order to rob them. But as he also points out, because she was an accomplice, Toews's testimony cannot be used to give meaning to the message sent from Mabson's phone. In other words, the text message sent from Mabson's phone earlier on the night of the killing is another example of evidence that does not have a tendency to connect Mabson with the killing of Sanderson without aid from an accomplice's testimony, i.e., it is not independent evidence that tends to corroborate Toews's testimony that Mabson was one of the participants in the crime.
That leads us to the "fish tank" evidence. According to the People, "the jury . . . heard evidence that Mabson's apartment was an upstairs unit that had a fish tank in it [citation], which corroborated the accomplice testimony that after the murder, the group went to an upstairs apartment that had a fish tank." It is true that Detective McCue testified that in searching Mabson's apartment, which was an upstairs unit, he saw "a tank, like a fish tank" in it. But in arguing that this testimony "corroborated the accomplice testimony that after the murder, the group went to an upstairs apartment that had a fish tank," the People again rely on evidence that is meaningless without Toews's testimony to explain it. Here, the detective's testimony that Mabson's apartment was upstairs and had a fish tank in it has a tendency to connect Mabson to the killing of Sanderson only through the assistance of Toews's testimony that after the killing they went to an upstairs apartment with a fish tank in it. Thus, this evidence is not independent evidence tending to corroborate Toews's testimony that Mabson was one of the participants in the crime.
We finally address the cell phone evidence. It is here the People's argument finds traction. Mabson's cell phone records show Mabson's cell phone connected with Godines's cell phone at 11:02 p.m., the night of the shooting. Then, at 11:20 p.m., a call from Mabson's cell phone pinged off a tower near his home. Three minutes after that ping, a call from Mabson's phone pinged off a tower located between Mabson's home and Sanderson's home. Two minutes after that, at 11:25 p.m., a call from Mabson's phone pinged off a tower near Sanderson's home. Sanderson was shot at approximately 12:15 a.m. One-half hour after the shooting, Mabson's phone records show a call from his cell phone pinged off the tower near his home. This evidence tends to show Mabson traveled from his home to Sanderson's home and was there 50 minutes before the shooting, before returning to his own home, where he was after the shooting.
Although, geographical closeness to the crime alone is insufficient to corroborate a coconspirator's testimony (People v. Valardi (1966) 240 Cal.App.2d 98, 99), this evidence shows more than Mabson's mere geographical closeness to the scene of the shooting. It shows he traveled from his home to the area of the shooting around the time of the shooting. This evidence, when looked at in conjunction with the other cell phone records, also tended to show Mabson's association with his coparticipants at the time and location of the crime.
Toews's cell phone records show that, before the shooting, calls made from her phone pinged off the tower near Sanderson's apartment. Shortly after the shooting, calls made from Toews's cell phone pinged off the tower near Mabson's apartment. This tends to show Toews was at Sanderson's apartment before the shooting and moved to the general area of Mabson's apartment after. McPherson's cell phone provider, on the other hand, has only one tower in the area of Sanderson's and Mabson's apartments. McPherson's cell phone records show calls made from his phone both before and after the shooting were routed through that single tower. This tends to show that before and after the shooting, McPherson stayed in the same general area that included both Mabson's and Sanderson's apartments. Godines's cell phone records also show that he was near Sanderson's home at the time of the shooting and then near Mabson's home after. Seconds before midnight until seven minutes after midnight, multiple calls from Godines's cell phone pinged off the tower near Sanderson's apartment. Then, 19 minutes after midnight, calls from Godines's phone pinged off the tower near Mabson's apartment.
Campbell testified her cell phone battery died before the shooting occurred. Her cell phone records place her near Sanderson's apartment at 11:24 p.m. before all of her phone activity ceased until nearly 1:00 a.m.
A reasonable inference from the trend demonstrated by all of the cell phone evidence is that Mabson was with Godines, McPherson, and Toews near Sanderson's apartment around the time of the shooting and was near his own apartment with them after the shooting. This inference corroborates Toews's testimony.
Mabson argues the cell phone evidence is " 'as consistent with innocence as guilt' " because of the proximity of his apartment to both the tower near his apartment and the tower near Sanderson's apartment. Mabson and Sanderson lived "a couple of miles" from each other and the towers for Mabson's cell phone provider had a range of two and one-half to three miles. This means that calls made from Mabson's apartment would be routed through the cell tower near Sanderson's home if they could not be routed through the cell tower located nearest to Mabson. To support an inference that it happened the night of the shooting, Mabson points to his cell phone activity days before the murder to show that calls from his cell phone were "regularly" routed through the tower near Sanderson's apartment.
The problem with Mabson's argument is that, even if this is a reasonable inference, we must affirm if "slight" evidence reasonably tends to connect the defendant to the crime. (People v. Falconer, supra, 201 Cal.App.3d at p. 1543.) As demonstrated, the cell phone evidence tends to connect Mabson to the location of the crime, around the time it occurred, and in close proximity to the people who committed it. Although this evidence "may be entitled to little consideration when standing alone," it corroborates Toews's testimony in such a way to satisfy us that she is telling the truth. (Falconer, at p. 1543; People v. Vu, supra, 143 Cal.App.4th at p. 1022; People v. Sanchez, supra, 232 Cal.App.2d at p. 816.)
II
The Trial Court Did Not Commit Evidentiary Error
Godines and Mabson challenge separate evidentiary rulings made by the trial court. Godines contends the court committed error when it admitted a statement McPherson relayed to Campbell, which he attributed to Godines. Mabson contends Detective McCue's testimony about cell phone towers was inadmissible because it lacked foundation and was speculative. We reject both of these claims of error.
A
McPherson's Statement To Campbell That She "Better Not
Snitch" Did Not Implicate Godines
Before trial, the parties discussed the admissibility of McPherson's statement to Campbell that she "better not snitch," which he attributed to Godines in the conversation with Campbell. In other words, McPherson told Campbell that Godines had said she "better not snitch." The court determined McPherson's statement to Campbell was admissible as a statement of a party opponent, and that Godines's statement to McPherson that Campbell "better not snitch" did not constitute hearsay because it was being admitted to show the effect it had on Campbell in her future interactions with police. The trial court determined McPherson's statement to Campbell should be sanitized of Godines's name because of confrontation clause concerns since McPherson implicated Godines and was not subject to cross-examination. Godines objected before trial and requested a different jury than his codefendants if the court decided to admit the statement. The trial court denied Godines's requests. Ultimately, Campbell testified that McPherson told her another person had said she "better not snitch."
The trial court admonished the jury immediately after this testimony. "With respect to that last portion of the testimony, that you better not snitch: That testimony is admitted not for the truth of the underlying statement but to show its impact on this witness." Campbell gave various untruthful statements to the police in the days following the shooting. After she cooperated with law enforcement, she said she was scared for her family and worried about whether her cooperation would appear in official paperwork. She also requested to be put in protective custody. Campbell testified, however, that neither Mabson nor McPherson had ever threatened her. In fact, she had never formally met Mabson and did not remember him being present during and after the shooting. She further testified she never felt intimidated by McPherson, even when he relayed the "snitch" statement from another person.
Godines moved for a mistrial based on this testimony because he believes, through process of elimination, the jury would now attribute the "snitch" statement to Godines in violation of his right to confront witnesses. Godines renews this challenge on appeal and argues the "snitch" statement was inadmissible under the Aranda-Bruton rule because the jury would inferably attribute the statement to him, thus implicating him in the crime. We disagree.
People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 . --------
The Aranda-Bruton rule addresses a specific issue that arises at joint trials when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that incriminates a codefendant. " ' "Aranda and Bruton stand for the proposition that a 'nontestifying codefendant's' extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant's right of confrontation and cross-examination, even if a limiting instruction is given." ' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1176.)
Since the Aranda-Bruton decisions, however, the United States Supreme Court has clarified that the confrontation clause of the Sixth Amendment is concerned solely with out-of-court statements that are "testimonial." (Davis v. Washington (2006) 547 U.S. 813, 821-825 [165 L.Ed.2d 224, 236-239].) Thus, the confrontation clause does not apply to nontestimonial, out-of-court statements (Whorton v. Bockting (2007) 549 U.S. 406, 420 [167 L.Ed.2d 1, 13]), including such statements by codefendants (People v. Arceo (2011) 195 Cal.App.4th 556, 571). Given this clarification in the law, it is questionable whether the Aranda-Burton rule applies to nontestimonial, out-of-court statements by a codefendant, since "[i]f none of the co-defendants has a constitutional right to confront the declarant, none can complain that his right has been denied." (United States v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85.) The "snitch" statement was not "testimonial."
Even if the Aranda-Bruton rule applied to nontestimonial statements, it would have no application in this case. The rule applies only to statements which are facially incriminating. (Richardson v. Marsh (1987) 481 U.S. 200, 207-208 [95 L.Ed.2d 176, 185-186].) In Richardson, the court held that, "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the [other] defendant's name, but any reference to his or her existence." (Id. at p. 211 .) But the Richardson court expressed "no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." (Id. at p. 211, fn. 5 [95 L.Ed.2d at p. 188, fn. 5].) The Richardson court did, however, reject the "contextual implication" doctrine, which holds that a statement that is not "facially incriminating," nevertheless violates the confrontation clause if the jury may link the codefendant to the statement by other evidence introduced at trial. (Id. at pp. 208-209 [95 L.Ed.2d at pp. 186-187].)
In Richardson, a nontestifying defendant's confession was redacted to eliminate all references to a codefendant's existence. But in view of other evidence introduced at trial, specifically the codefendant's own testimony, the confession implicated the codefendant in the commission of the crimes. (Richardson v. Marsh, supra, 481 U.S. at pp. 203-205 [95 L.Ed.2d at pp. 183-184].) The Richardson court reasoned that if a nontestifying codefendant's confession becomes incriminating only when linked with other evidence, there is no "overwhelming probability" that the jury will disregard a limiting instruction. Thus, under Richardson, only facially incriminating statements violate the confrontation clause; statements that are incriminating only by connection to other evidence do not. (Id. at pp. 208-209 [95 L.Ed.2d at pp. 186-187].) The Richardson court observed that it was "not possible" to extend the Bruton rule to statements that are incriminating only by connection to other evidence because that garnered itself to posttrial assessments vulnerable to "manipulation." (Id at p. 209 .) The Richardson court further observed that pretrial hearings to assess a confession's compliance with Bruton, in light of all of the evidence to be introduced, would be "obviously far from foolproof." (Ibid., italics added)
In People v. Fletcher (1996) 13 Cal.4th 451, our Supreme Court addressed the question left open in Richardson: whether a confession in which the defendant's name has been replaced with a symbol or neutral pronoun violates the confrontation clause. The Fletcher court held that whether a statement may be redacted to avoid a confrontation violation, "must be determined on a case-by-case basis in light of the other evidence that has been or is likely to be presented at the trial. The editing will be deemed insufficient . . . if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun." (Fletcher, at p. 456.)
In Gray v. Maryland (1998) 523 U.S. 185 , the Supreme Court also addressed the question left open in Richardson. Gray involved a confession that specifically referred to a codefendant's existence, but replaced the codefendant's name with blank spaces, or the words "deleted" or "deletion." (Gray, at p. 192 [140 L.Ed.2d at pp. 300-301].) As such, the redactions were no less "powerfully incriminating" than the codefendant's name itself would have been. The question, "Who was in the group that beat Stacey?" would be, "Me and a few other guys," but not, "Me, deleted, deleted, and a few other guys." The former eliminates all references to the defendant; the latter does not. (Gray, at pp. 194-197 [140 L.Ed.2d at pp. 302-304].) Accordingly, the Gray court held the class of inferentially incriminating statements to which the Aranda-Bruton rule applied were "obvious" ones, "inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial." (Gray, at p. 196 .)
Here, McPherson's statement to Campbell that another person said she "better not snitch" does not obviously implicate Godines in the shooting. Godines assumes the jury had to pick between himself and Mabson as possible declarants, making it obvious that he made the "snitch" statement once Campbell testified Mabson and McPherson had never threatened her. The "snitch" statement, however, does not in and of itself link the declarant to the commission of the shooting, but merely to an attempt to cover it up. There were many people who had motive to cover up the shooting beside McPherson, Mabson, and Godines. The actual declarant of the original "snitch" statement was among possible people both charged and uncharged. Not only did the jury have to eliminate Mabson as the possible declarant but also Deed and Van Hooser. Evidence implicated both men as possible accomplices, making them both likely declarants of the "snitch" statement.
As Godines himself advances, he is only implicated if the jury analyzes the evidence to eliminate all other people who could have made the statement to conclude that he was the one to tell McPherson that Campbell "better not snitch." Because the jury was required to make numerous inferences excluding multiple people to determine Godines was the person to utter the "snitch" statement, the statement did not obviously implicate Godines in the shooting. Accordingly, the trial court did not abuse its discretion when admitting the "snitch" statement. (See People v. Brown (2003) 31 Cal.4th 518, 547 [we review the admission of evidence for abuse of discretion].)
B
Detective McCue's Testimony About Cell Phone Towers Did Not Lack Foundation
Detective McCue identified the metroPCS cell phone tower located closest to Sanderson's apartment and the metroPCS tower located closest to Mabson's apartment on a map provided to the jury. He testified that calls made from each apartment complex would be routed through the nearest tower unless there was interference or because the tower was busy with phone traffic. According to Detective McCue, interference can be caused by many things including buildings, certain types of metals such as aluminum, and storm conditions. When interference disrupts the signal to the closest cell tower, the phone call is routed to the next closest tower. In this case, because the towers near Sanderson's and Mabson's apartments were located close to one another, a call that was supposed to route through the tower near Mabson's apartment could divert to the tower near Sanderson's apartment and vice versa. Detective McCue also testified that there were no storms around the time of the shooting nor were there tall buildings or anything else associated with cell phone interference in the area of the shooting. There was also minimal car traffic on Detective McCue's way to Sanderson's apartment between 1:00 to 2:00 in the morning.
Mabson contends this opinion testimony lacked foundation and "was so overly simplistic as to amount to mere speculation and conjecture." We disagree.
Pursuant to Evidence Code section 801, a trial court acts as a gatekeeper and should exclude any expert opinion that is based upon assumptions of fact without evidentiary support, or which involve guesses or surmises. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770.) Evidence Code section 802 permits a court to inquire into both the type of material on which an expert relies and whether that material actually supports the expert's reasoning. (Sargon, at p. 771.) In exercising its role as a gatekeeper, the trial court should exclude expert opinion testimony "that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative." (Id. at pp. 771-772.) The trial court's focus should be " 'solely on principles and methodology, not on the conclusions that they generate.' " (Id. at p. 772.) "A claim that expert opinion evidence improperly has been admitted is reviewed on appeal for abuse of discretion." (People v. Catlin (2001) 26 Cal.4th 81, 131.)
Detective McCue testified that everything he knew about cell phone towers he learned through multiple trainings over the past decade, which included both classroom and practical experience. None of the trainings were given by a cell phone provider.
During trainings, he learned how cell phone towers react to interference (by routing the call to a nearby tower) and the cause of any interference (heavy phone traffic, certain metals, and storms). To prepare for this case, he looked at all of the phone records and cell tower locations associated with defendants' cell phones and cell phone providers. Detective McCue did not go out to look at the cell phone towers involved but did respond to the victim's apartment after the shooting somewhere between 1:00 and 2:00 in the morning.
Relying on Sargon, Mabson argues this testimony did not provide an adequate foundation for Detective McCue's opinions. In Sargon, a small dental implant company sued the University of Southern California for breach of a contract that required the university to clinically test a new implant Sargon had patented. Although Sargon only had net profits of $101,000 in 1998, it sought damages for lost profits ranging from $200 million to over $1 billion beginning in 1998. Following an evidentiary hearing, the trial court excluded as speculative the proffered testimony of an expert regarding Sargon's potential lost profits. (Sargon Enterprises, Inc. v. University of Southern California, supra, 55 Cal.4th at p. 753.)
On appeal, the Sargon court analyzed and agreed with various appellate decisions that an expert's opinion cannot be based on speculation or conjecture. (Sargon Enterprises, Inc. v. University of Southern California, supra, 55 Cal.4th at p. 770.) It concluded that the trial court acted appropriately in excluding the expert testimony because the expert's methodology was too speculative. The expert's conclusions regarding lost profits were based on spectacularly increased market shares far above anything Sargon had ever achieved. (Id. at pp. 775-776.) The expert's attempt to predict the future was not grounded on past performance and involved too many variables. The calculation of lost profits was not certain. (Id. at p. 780.) The lack of sound methodology for determining the future profits meant the trial court reasonably excluded it. (Id. at p. 781.)
The Sargon court explained that the process for determining whether the expert opinion evidence relied upon is reasonable, credible and of solid value -- whether it is substantial -- is to inquire into whether the material on which an expert relies "actually supports the expert's reasoning. 'A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.' " (Sargon Enterprises, Inc. v. University of Southern California, supra, 55 Cal.4th at pp. 770-771, quoting General Electric Co. v. Joiner (1997) 522 U.S. 136, 146 [139 L.Ed.2d. 508, 519].) Here, no such analytical gap exists.
Detective McCue's training and his personal observations provided the foundation for his opinion testimony. Detective McCue testified he attended numerous training sessions given by law enforcement training programs where he learned about the cause and effect of interference to cell phone towers. He relayed that knowledge to the jury. Detective McCue also testified that he drove in the area of the shooting between 1:00 and 2:00 in the morning and did not see any car traffic, storms, or buildings to interfere with the cell phone signals in the area. Detective McCue's opinion that no storms or buildings interfered with the cell phone signals the night of the shooting was reasonably based on his training that storms and buildings interfere with cell phone signals and his personal observations that there were no storms the night of the shooting or buildings in the area of the shooting. Likewise, Detective McCue's opinion that there was not much phone traffic at the time and in the area of the shooting was reasonably based on his personal observations when driving to the crime scene that few people were active and potentially using their phones. Thus, unlike Sargon, where the expert opinion testimony was not grounded in the expert's training, Detective McCue's opinions were.
Mabson's reliance on Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755 and People v. London (2014) 228 Cal.App.4th 544 are likewise misplaced. In Bozzi, it was error for an expert to testify that a design or maintenance defect caused an elevator to stop abruptly during a power outage. This was error because the expert had never seen the elevator and could provide no facts to support his opinion that the elevator had a defect. (Bozzi, at pp. 757, 762-763.) In London, the court found a marijuana expert's testimony was properly limited because he lacked the foundation to opine that the defendant's 100 marijuana plants would produce no more than the amount necessary for six medical patients. (London, at pp. 558, 560.) The testimony was properly limited because the expert admitted the amount of marijuana 100 plants could produce depended greatly on the lighting they received and he did not know the lighting conditions of these plants. (Id. at p. 560.) In both cases, the experts sought to testify that a specific subject either acted or would act in a particular fashion.
Here, on the other hand, Detective McCue did not claim that defendants' phone calls actually routed through the tower closest to where defendants made the calls. Detective McCue testified that calls usually routed through the tower closest to where the calls originated unless there was interference or the tower was busy with phone traffic. He then testified he did not see any of the usual signs of interference or phone traffic an hour or two after the shooting and in the area of the shooting. Detective McCue's testimony was not conclusory as was the experts' in Bozzi and London because the jury was left to make their own conclusions about defendants' locations based on the evidence and expert testimony.
The fact that Detective McCue did not look at the phone traffic records or inspect the towers for potential interfering metals does not change our conclusion. This type of evidence merely serves to undermine Detective McCue's opinion, not rob it of all reliability. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 922-923 ["[a] party may impeach an expert witness by contradiction, i.e., by showing the falsity of any matter upon which the expert based his opinion. This can be done either by cross-examination of the expert or by calling other witnesses to offer evidence showing the nonexistence or error in the data upon which the first expert based his opinion"]; see Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1251-1253 [so long as foundational reliability is met, the strength of an expert's assumptions affects the weight rather than the admissibility of the opinion].) Mabson's counsel had the opportunity to cross-examine Detective McCue about his expert opinions and poke holes in his reasoning, which Mabson's counsel did. Such impeachment, however, does not change the fact that Detective McCue's opinions were reasonably based on his training and personal observations. Thus, the trial court did not abuse its discretion when finding Detective McCue's testimony did not lack foundation.
III
Defendants' Instructional Error Claims Lack Merit
Each defendant was charged with murder, attempted robbery, and burglary. As far as the murder was concerned, the jury was instructed on first degree felony murder, second degree murder with malice aforethought, and voluntary manslaughter based on unreasonable defense of others. The prosecution did not argue conspiracy as a theory under which the jury could find defendants guilty of murder. In fact, before the jury was instructed, the prosecutor told the trial court and defendants' counsel that she was not relying on the uncharged conspiracy to prove guilt. Despite the prosecutor's intention to proceed on an aider and abettor theory of culpability, the trial court instructed the jury on conspiracy liability and permitted it to find defendants guilty of felony murder under that theory. The court also instructed the jury on coconspirator statements and withdrawal from a conspiracy. The jury found defendants guilty of first degree felony murder, attempted robbery, and burglary.
Defendants collectively argue the trial court erroneously instructed the jury on felony murder and withdrawal from a conspiracy. McPherson independently argues the court should have instructed the jury on conspiracy as a lesser included offense of felony murder, while Mabson independently argues the court erroneously told the jury that it could not consider statements Campbell and Toews made after the conspiracy ended. We reject all of these contentions.
A
Defendants Forfeited Their Claims Regarding The Felony-Murder Instruction
As is relevant to felony murder, the jury was instructed with the pattern jury instructions found at CALCRIM Nos. 540A and 540B. The instructions are similar to each other except CALCRIM No. 540A instructs on the liability of a direct perpetrator while CALCRIM No. 540B instructs on the liability of an aider and abettor or a coconspirator.
The court instructed the jury that to find defendants guilty of felony murder under a direct perpetrator theory it must find: "1. The defendant committed an attempted robbery or burglary of an occupied dwelling; [¶] 2. The defendant intended to commit robbery or burglary of an occupied dwelling; and [¶] 3. While committing attempted robbery or burglary of an occupied dwelling, the defendant caused the death of another person."
The court next instructed the jury that "[d]efendants Travis Mabson and Patrick J. McPherson may also be guilty of murder under a theory of felony murder, even if another person did the act that resulted in the death . . . [t]o prove that a defendant is guilty of first degree murder under this theory, the People must prove that: [¶] 1. The defendant committed, or aided and abetted, or was a member of a conspiracy to commit attempted robbery or burglary of an occupied dwelling; [¶] 2. The defendant intended to commit, or intended to aid and abet the perpetrator in committing, or intended that one or more members of the conspiracy commit robbery or burglary of an occupied dwelling; [¶] 3. If the defendant did not personally commit attempted robbery or burglary of an occupied dwelling, then a perpetrator, whom the defendant was aiding and abetting or with whom the defendant conspired, personally committed attempted robbery or burglary of an occupied dwelling; and [¶] 4. While committing attempted robbery or burglary of an occupied dwelling, the perpetrator caused the death of another person."
Both instructions also charged the jury that "[i]t is not required that the person die immediately, as long as the act causing death occurred while the defendant was committing the felonies." The instruction on felony murder involving a direct perpetrator also charged: "The crime of attempted robbery or burglary of an occupied dwelling continues until a defendant has reached a place of temporary safety."
Defendants challenge these instructions on two grounds: first, the instructions lack the element that the murder and underlying felony be part of one "continuous transaction," and second, the instructions lack the element that the murder have a causal relationship to the underlying felony. The People counter that defendants forfeited these claims by failing to object at trial. We agree with the People.
It is well-established that a trial court must instruct on general principles of law relevant to the issues raised by the evidence in the case even absent a party's request. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) "The court has no duty to give an instruction if it is repetitious of another instruction also given." (People v. Barajas (2004) 120 Cal.App.4th 787, 791.) Failure to object to instructions correct in law and responsive to the evidence, results in forfeiture of future challenges to the instructions. (People v. Lang (1989) 49 Cal.3d 991, 1024, abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) "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.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
We now address the adequacy of the felony-murder instructions regarding defendants' challenges to the continuous transaction and logical nexus elements.
1
The Instruction Adequately Informed The Jury Of The Continuous
Transaction Element Of Felony Murder
Godines argues, to which McPherson and Mabson join, that the trial court was required to instruct the jury that for it to find defendants guilty of felony murder, it had to find the felony and murder occurred during " 'one continuous transaction' " and that defendants had not reached a place of temporary safety when the murder occurred. In support of this argument, Godines extensively explains the history of the felony-murder jury instructions. He concludes from this history that the removal of the phrase " 'one continuous transaction' " from the prior instruction, resulted in the jury believing it could find defendants guilty of the felony murder of Sanderson based on the burglary and attempted robbery of Sanderson's neighbor, which Godines and Mabson inadvertently committed when they went into the wrong apartment. Not so.
The escape rule provides that a killing that occurs during a robbery will be deemed murder unless it occurs after the robber has reached a place of temporary safety, that is, has eluded pursuers, and is in unchallenged possession of the stolen property. (See People v. Boss (1930) 210 Cal. 245, 250-251.) Thus, although for other reasons a robbery is deemed complete upon "asportation," that is, at the moment of the taking of property by force or fear (see People v. Navarette (2003) 30 Cal.4th 458, 502), for felony murder purposes, a robbery is not deemed complete until the perpetrator has escaped (see People v. Burney (2009) 47 Cal.4th 203, 246, fn. 13). The escape rule -- which applies equally to burglary murder cases -- both extends felony-murder liability to deaths occurring during a perpetrator's flight and limits liability, because a killing that occurs after the perpetrator reaches a place of temporary safety does not constitute a felony murder. (See People v. Wilkins (2013) 56 Cal.4th 333, 341, 343-348 [burglary murder; trial court should have given escape instruction].)
The continuous transaction rule is connected with the escape rule. Generally, "[t]here is no requirement of a strict 'causal' [citation] or 'temporal' [citation] relationship between the 'felony' and the 'murder.' All that is demanded is that the two 'are parts of one continuous transaction.' " (People v. Berryman (1993) 6 Cal.4th 1048, 1085, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Thus, felony-murder liability may be found in the absence of a strict causal or temporal relationship between the underlying felony and the killing so long as it is proven that the crime and the killing were part of one continuous transaction, including flight prior to escape. (See People v. Wilkins, supra, 56 Cal.4th at pp. 340-342.) But "the escape rule establishes the 'outer limits of the "continuous-transaction" theory.' " (Id. at p. 345.)
Put another way: "The 'escape rule' defines the duration of the underlying felony, in the context of certain ancillary consequences of the felony [citation], by deeming the felony to continue until the felon has reached a place of temporary safety. [Citation.] The continuous-transaction doctrine, on the other hand, defines the duration of felony-murder liability, which may extend beyond the termination of the felony itself, provided that the felony and the act resulting in death constitute one continuous transaction." (People v. Cavitt (2004) 33 Cal.4th 187, 208 (Cavitt).)
Here, the instructions adequately instructed the jury that the murder had to be part of the same transaction as the felony and could not have occurred past the time defendants had escaped or reached a place of temporary safety. The jury was instructed as part of both the direct perpetrator and accomplice felony-murder instructions that the perpetrator of the murder had to have caused the death of another person "while committing attempted robbery or burglary." These instructions further reiterated that "the act causing death [must have] occurred while the defendant was committing the felonies." Finally, the instruction on direct perpetrator felony murder charged that the predicate crime "continues until a defendant has reached a place of temporary safety."
This language explained the "temporary safety" and "continuous transaction" doctrines defendants assert were missing from the instructions. As worded, the instructions accurately informed the jury it may only find defendants guilty of felony murder if the murder was committed while the perpetrator was also committing the predicate felony, but not after the perpetrator reached a place of temporary safety. This standard is consistent with the law for determining whether a murder was committed during the commission of a felony for the purposes of felony murder. (See People v. Debose (2014) 59 Cal.4th 177, 205 [" ' "[T]he crime of robbery is not confined to the act of taking property from victims. The nature of the crime is such that a robber's escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place" ' "].)
Moreover, contrary to Godines's argument, the instructions did not require a finding of guilt for felony murder in the event the jury found only that defendants burglarized or attempted to rob Sanderson's neighbor. Godines argues the jury could have accepted his argument at trial and found he abandoned the intent to rob Sanderson after going into the wrong apartment and that he entered Sanderson's apartment with the sole intent to retrieve Campbell. Such a conclusion would require the jury to find he was not burglarizing or robbing Sanderson when Sanderson died. But as instructed, Godines argues, the jury would think it was required to convict him of felony murder based on the burglary and attempted robbery of Sanderson's neighbor because the jury was not instructed that the felony and murder must occur during "one continuous transaction." Thus, Godines argues, the jury would think it necessary to convict simply because a felony and murder occurred in proximity to one another. We disagree.
The instructions preclude a felony-murder finding based on the burglary and attempted robbery of Sanderson's neighbor if the jury believed defendants had reached a place of temporary safety after leaving Sanderson's neighbor's apartment or believed the shooting did not occur during the burglary or attempted robbery of Sanderson's neighbor. The instruction clearly informs the jury it could only find felony murder if the shooting occurred "while" Godines committed the predicate felony and before he reached a place of temporary safety. We do not presume the jury ignored these instructions to find defendants guilty under their own theory of acquittal. (See People v. Pearson (2013) 56 Cal.4th 393, 414.)
Because the court properly instructed the jury on the "continuous transaction" doctrine and the "temporary safety" doctrine, defendants were required to request any further clarifications of the law. Since they did not, defendants' claim that the instructions did not accurately define the temporal scope of felony murder is forfeited.
2
The Instruction Adequately Informed The Jury Of The Causal
Relationship Element Of Felony Murder
Godines also argues, to which McPherson and Mabson join, that in addition to instructing on the "one continuous transaction" element, the trial court had a sua sponte duty to instruct on the causal relationship element of felony murder. Because the court did not instruct the jury on its separate duty to find a causal relationship or logical nexus between the predicate felony and the murder, Godines contends, error occurred. We disagree. The trial court's instruction was adequate and a correct statement of law; thus, defendants were required to object and request clarifying language. Because they did not, defendant's have forfeited this claim.
In Cavitt, our Supreme Court explained the scope and requirements for the felony-murder rule as applied to accomplices. "[T]he felony-murder rule does not apply to nonkillers where the act resulting in death is completely unrelated to the underlying felony other than occurring at the same time and place." (Cavitt, supra, 33 Cal.4th at p. 196.) Instead, "the felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death. The causal relationship is established by proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit. The temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction." (Id. at p. 193.)
Although Cavitt described the elements as separate, it also noted "cases that raise a genuine issue as to the existence of a logical nexus between the felony and the homicide 'are few indeed.' " (Cavitt, supra, 33 Cal.4th at p. 204, fn. 5.) In Cavitt, a logical nexus existed when the murder victim was the target of the burglary-robbery; she was covered in a sheet, beaten, hog-tied, and left face down on a bed, where she died of asphyxiation. Although the defendants argued their accomplice -- the stepdaughter of the victim -- committed the murder for personal reasons unrelated to the burglary-robbery once they were gone from the house, "one could not say that the homicide was completely unrelated, other than the mere coincidence of time and place, to the burglary-robbery." (Id. at p. 204.) Thus, the court determined, the law does not require proof of a strict causal relationship between the felony and the homicide, but merely some connection. (Id. at p. 201.)
Here, the requirement that the act causing death occur while the perpetrator committed the predicate felony does not serve to link the murder with the felony only temporally but also causally. The court in Cavitt approved a similar instruction telling the jury the defendants could be found guilty if " 'the killing occurred during the commission or attempted commission of robbery or burglary' by 'one of several persons engaged in the commission' of those crimes." (Cavitt, supra, 33 Cal.4th at p. 203.) As in Cavitt, the felony-murder instructions adequately instructed the jury on the logical nexus requirement.
Further, the CALCRIM Bench Notes from these instructions make clear the logical nexus or causal relationship is not a mandatory element of felony murder. The Bench Note clarifies: "There is no sua sponte duty to clarify the logical nexus between the felony and the homicidal act. If an issue about the logical nexus requirement arises, the court may give the following language: [¶] There must be a logical connection between the cause of death and the __________ <insert felony or felonies from Pen. Code, § 189> [or attempted __________ <insert felony or felonies from Pen. Code, § 189> ]. The connection between the cause of death and the __________ < insert felony or felonies from Pen. Code, § 189> [or attempted __________ <insert felony or felonies from Pen. Code, § 189>] must involve more than just their occurrence at the same time and place." (Bench Note to CALCRIM No. 540B (2018 ed.) pp. 269-270.)
Cavitt also supports this reading of the Bench Note, holding that: "The existence of a logical nexus between the felony and the murder in the felony-murder context, like the relationship between the robbery and the murder in the context of the felony-murder special circumstance [citation], is not a separate element of the charged crime but, rather, a clarification of the scope of an element. . . . [¶] Hence, if the requisite nexus between the felony and the homicidal act is not at issue and the trial court has otherwise adequately explained the general principles of law requiring a determination whether the killing was committed in the perpetration of the felony, 'it is the defendant's obligation to request any clarifying or amplifying instructions on the subject.' " (Cavitt, supra, 33 Cal.4th at pp. 203-204.)
Applying these principles here, we conclude the trial court had no sua sponte duty to give the omitted portion of CALCRIM No. 540B because the evidence did not raise an issue as to the existence of a logical nexus between the robbery and the homicide. Godines disagrees and argues the evidence did raise the issue because the burglary/attempted robbery of Sanderson's neighbor did not share a logical nexus with Sanderson's death, thus could not provide a basis for a felony-murder finding. Even assuming the jury based its felony-murder finding on the burglary/attempted robbery of Sanderson's neighbor and not the robbery of Sanderson, Godines's argument still fails.
Under Godines's theory, Sanderson's death was not logically connected to the burglary/attempted robbery of his neighbor because Godines shot Sanderson after entering Sanderson's apartment to retrieve Campbell. The problem with Godines's argument is that he and Mabson attempted to rob Sanderson's neighbor because they thought they were burglarizing Sanderson's apartment. The burglary/attempted robbery shared a nexus with the shooting because defendants thought the victim of the burglary/attempted robbery was the victim of the shooting. The fact that the victim of the burglary/attempted robbery ultimately was not the victim of the shooting does not erase defendants' intents and make the two acts unrelated. Simply put, "on this record, one could not say that the homicide was completely unrelated, other than the mere coincidence of time and place, to the . . . robbery." (Cavitt, supra, 33 Cal.4th at p. 204.) Thus, because defendants did not request clarifying language to the felony-murder instructions, they forfeited their claim on appeal.
B
Withdrawal From A Conspiracy Requires A Conspirator To Communicate
His Withdrawal To All Coconspirators Known To Him
The trial court instructed the jury on withdrawal from a conspiracy as follows: "To withdraw from a conspiracy, the defendant must truly and affirmatively reject the conspiracy and communicate that rejection, by word or by deed, to the other members of the conspiracy known to the defendant. [¶] A failure to act is not sufficient alone to withdraw from a conspiracy. [¶] If you decide that a defendant withdrew from a conspiracy after an overt act was committed, the defendant is not guilty of any acts committed by remaining members of the conspiracy after he withdrew."
Defendants contend the trial court's instruction on withdrawal from a conspiracy was "[e]rroneously [o]vernarrow." McPherson further argues the court erroneously responded to a jury question related to the instruction and then erroneously refused to permit him to reopen his closing argument to argue in light of the response.
1
The Jury Instruction On Withdrawal From A Conspiracy Was Not Overly Narrow
Godines argues, to which McPherson and Mabson join, that the instruction on withdrawal from a conspiracy misstated the law because it did not "allow for methods of withdrawal long recognized as part of the law of conspiracy." Specifically, Godines relies on People v. Hamilton (1989) 48 Cal.3d 1142, to illustrate that defendants need not communicate their withdrawal to all members of the conspiracy to rely on a withdrawal defense. Godines reasons that because the instruction did not allow for a finding of withdrawal unless he had communicated his intent to all other members of the conspiracy, the instruction was overly narrow. We disagree.
To be a coconspirator, a defendant must: (1) intend to agree and agree with another to commit the charged crime, (2) intend at the time of the agreement that one or more members of the conspiracy commit the charged crime, and (3) intend one or more members of the conspiracy committed at least one overt act to accomplish the crime. (People v. Belmontes (1988) 45 Cal.3d 744, 789, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; CALCRIM No. 416.) " ' "Once the defendant's participation in the conspiracy is shown, it will be presumed to continue unless he is able to prove, as a matter of defense, that he effectively withdrew from the conspiracy." ' " (People v. Sconce (1991) 228 Cal.App.3d 693, 701.) "Withdrawal from a conspiracy requires 'an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirators.' " (Ibid., quoting People v. Crosby (1962) 58 Cal.2d 713, 730-731.) " 'Generally, a defendant's mere failure to continue previously active participation in a conspiracy is not enough to constitute withdrawal.' " (People v. Lowery (1988) 200 Cal.App.3d 1207, 1220.) For example, " ' "[a]lthough a defendant's arrest and incarceration may terminate his participation in an alleged conspiracy, his arrest does not terminate, or constitute a withdrawal from, the conspiracy as a matter of law." ' " (Sconce, at p. 701.)
Defendants argue the requirement that they communicate their withdrawal to all coconspirators known to them was a misstatement of the law and a properly instructed jury could lawfully have found they withdrew from the conspiracy after they burglarized the wrong apartment, despite defendants' failure to communicate that withdrawal to Campbell. Not so.
" 'Criminal liability for conspiracy, separate from and in addition to that imposed for the substantive offense which the conspirators agree to commit, has been justified by a "group danger" rationale. The division of labor inherent in group association is seen to encourage the selection of more elaborate and ambitious goals and to increase the likelihood that the scheme will be successful. Moreover, the moral support of the group is seen as strengthening the perseverance of each member of the conspiracy, thereby acting to discourage any reevaluation of the decision to commit the offense which a single offender might undertake. And even if a single conspirator reconsiders and contemplates stopping the wheels which have been set in motion to attain the object of the conspiracy, a return to the status quo will be much more difficult since it will entail persuasion of the other conspirators.' " (People v. Sconce, supra, 228 Cal.App.3d at p. 700, quoting People v. Zamora (1976) 18 Cal.3d 538, 555-556.)
The policy behind coconspirator liability precludes us from agreeing with defendants. The "group danger" and "moral support of the group" components are still active when a defendant fails to communicate his or her withdrawal to all the members of a conspiracy. A defendant can hardly claim he did not contribute to a conspiracy when a fellow coconspirator he emboldened successfully committed the target crime, especially when the defendant never communicated to that coconspirator his withdrawal from the conspiracy. Without communication to all members of the conspiracy, coconspirators still act with perseverance strengthened by the defendant's support. It is this support that is punished. Thus, the instruction correctly provided that a defendant needed to communicate his withdrawal to all members of the conspiracy to effectively withdraw from it.
Defendants' reliance on Hamilton is misplaced. In Hamilton, the defendant wanted to have his wife killed. He offered his sister, Carolyn, $20,000 to help find someone to commit the murder. (People v. Hamilton, supra, 48 Cal.3d at p. 1152.) Carolyn asked another sister, Victoria, who agreed to kill the defendant's wife for $10,000 and "suggested that a shotgun would 'probably be the easiest weapon to use.' " (Id. at pp. 1152, 1169.) Victoria moved to Texas a few days later. When Carolyn called her and asked if she intended to return to California to help with the murder, Victoria agreed to do so, although she had no intention of doing so. (Id. at p. 1169.) Some time later, the defendant, with the aid of Carolyn and a third person, shot and killed his wife with a shotgun. (Id. at p. 1153.)
Victoria testified at the defendant's trial about her conversations with Carolyn. The court instructed the jury it should determine whether Victoria was an accomplice before considering her testimony. (People v. Hamilton, supra, 48 Cal.3d at pp. 1168-1169.) The court denied the defendant's request the jury be instructed that Victoria was an accomplice as a matter of law. (Ibid.) The Supreme Court concluded there was no error. The court explained that there was a factual dispute as to whether Victoria's conversations with Carolyn about the defendant's plan to kill his wife amounted to aiding and abetting. (Id. at pp. 1169-1170.) The court stated that Victoria's actions -- her statement that she would participate in the murder, her suggestion of the murder weapon, and her move soon thereafter to Texas -- rendered her intent ambiguous. In that situation, Victoria's status as an accomplice, the court concluded, was properly left to the jury. (Id. at p. 1170.)
Godines contends the Hamilton court ruled that the issue of whether Victoria was a coconspirator should have been left to the jury. Godines reasons that because Victoria "clearly was a conspirator at the time of her first contact with Carolyn" the jury necessarily had to determine whether Victoria withdrew sometime after that contact to decide her status as a conspirator at the time of the murder. Because Victoria did not communicate her withdrawal to all coconspirators, Godines asserts our Supreme Court deemed it possible to withdrawal from a conspiracy without communicating that withdrawal to everyone in the conspiracy. This is not what Hamilton stands for.
The question in Hamilton was whether Victoria had the intent required to be an accomplice in the first instance. (People v. Hamilton, supra, 48 Cal.3d at pp. 1168-1170.) The court determined the evidence supporting a conclusion that she was an accomplice was ambiguous and the question should have been left to the jury. (Id. at p. 1170.) The court never determined that Victoria was an accomplice or a coconspirator, let alone addressed the issue of withdrawal. Indeed, the only mention of withdrawal is in a footnote where the court mentioned that Victoria's actions were subject to a variety of interpretations, one of which was that her move to Texas may have constituted a withdrawal from the conspiracy. (Id. at p. 1170, fn. 16.) We do not read this footnote to say that Victoria's move to Texas was, in and of itself, sufficient to establish she withdrew from the conspiracy. At most, this dicta supports a finding that Victoria's move could have been a deed meant to communicate rejection of the conspiracy. Whether Victoria adequately communicated that rejection to her coconspirators was not addressed by the Hamilton court.
We further do not see how defendants' citation to United States v. Shaw (5th Cir. 2009) 338 Fed.Appx. 404 is helpful. Godines argues that by requiring the jury to find a conspiracy after four of the five coconspirators "withdr[e]w in a legally effective manner," permitted the jury to convict him of felony murder based on a " 'conspiracy of one,' " composed solely of Campbell. Such a conclusion, Godines argues, does not exist in law. To illustrate this point, Godines cites Shaw for the proposition that a conspiracy dissolves once all but one of its members withdraws from it. Shaw, however, does not stand for this proposition.
In Shaw, the defendant was arrested for crimes the government alleged were part of a drug trafficking conspiracy with three other coconspirators. The problem with the government's theory was that the alleged coconspirators had either disassociated with the defendant two years before the defendant's arrest or were arrested a year before the defendant's arrest. Because of this prolonged dissociation, the defendant argued the government could not prove he committed the crimes as part of a conspiracy. The court agreed and found the government did not present any evidence establishing the defendant participated in a conspiracy with either known or unknown conspirators at the time of the crimes. (United States v. Shaw, supra, 338 Fed.Appx. at pp. 410-411.) Thus, Shaw does not stand for the proposition that a conspiracy ceases to exist upon disassociation; but instead, stands for the proposition that the government cannot prove a conspiracy when it fails to prove the defendant committed his crimes with other people. Like Hamilton, Shaw is relevant only to the issue of whether a conspiracy existed in the first place, not whether the alleged coconspirators withdrew from the conspiracy.
Godines's substantive argument, that the instruction permitted the jury to find a conspiracy even if all but one conspirator withdrew, also fails on its own merit. The withdrawal instruction here charged the jury that coconspirators can withdraw only in a legally effective manner if they communicate that withdrawal to all coconspirators. This instruction is supported by the law. (See People v. Crosby, supra, 58 Cal.2d at pp. 730-731; People v. Sconce, supra, 228 Cal.App.3d at p. 701.) If all but one conspirator withdrew by communicating withdrawal to all other coconspirators, the instruction does not permit a finding of a conspiracy of one, but mandates a finding of no conspiracy at all. No conspiracy would exist because the lone conspirator would not act as a coconspirator but as a direct and sole perpetrator.
The act of communicating withdrawal serves to negate the "group danger" considerations that make a conspiracy so dangerous and a crime in and of itself. After withdrawal is communicated, the sole conspirator left does not commit the crime because he or she is emboldened and strengthened by others but commits it because he or she alone harbors the intent to do so. On the other hand, agreeing with defendants that they could withdraw from a conspiracy without communicating that fact to other conspirators would lead to absurd results because defendants could avoid culpability for acts they intended and emboldened simply by communicating the intent to withdraw to a limited number of their coconspirators. This cannot be the case.
2
The Trial Court Did Not Abuse Its Discretion When Answering The Jury's Question
During jury deliberations, the jurors asked the trial court for clarification regarding the withdrawal from a conspiracy instruction. As relevant to McPherson's argument on appeal, the jury wanted to know whether a conspirator had to notify "all" coconspirators of the intent to withdraw, or whether there were exceptions to this rule. The court responded, "[a] defendant's withdrawal from the conspiracy must be communicated to all other members of the conspiracy of whom the defendant has knowledge, verbally or by conduct."
McPherson contends the court's response was incomplete and misleading for three reasons. First, the court erroneously inserted the word "all" into the instruction about to whom a conspirator is required to communicate his or her withdrawal. Second, the court unduly emphasized the erroneous insertion by putting it in boldface type. And three, the court did not include language to "balance the undue emphasis on the defendant's duty against the prosecution's burden of proof." We disagree on all points.
Section 1138 requires a trial court to provide a deliberating jury with information the jury desires on points of law. (People v. Smithey (1999) 20 Cal.4th 936, 985; People v. Hodges (2013) 213 Cal.App.4th 531, 539.) "This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) "We review for an abuse of discretion any error under section 1138." (People v. Eid (2010) 187 Cal.App.4th 859, 882.)
As discussed in the previous section, the trial court's instruction on withdrawal from a conspiracy as originally worded was an accurate statement of law in that it communicated to the jury that, to effectively withdraw, defendants had to communicate their intent to all of their coconspirators. Thus, the instruction's requirement that defendant communicate "to the other members of the conspiracy known to the defendant," required defendant to communicate with all other members known to him or her. Given our conclusion that the withdrawal instruction accurately conveyed the requirement that the defendants communicate withdrawal to all known coconspirators, we reject McPherson's claim that the court's inclusion of the term "all" in its response constituted an abuse of discretion. Indeed, the jury communicated with the court that it desired clarification of the law on this point, to which the court responded by accurately explaining it. Based on these same reasons, we also reject McPherson's argument that the court erroneously emphasized the requirement that a defendant must communicate his or her withdrawal to all known coconspirators.
We further reject McPherson's argument that the court abused its discretion by failing to remind the jury the prosecution had the burden to prove defendant did not withdraw. McPherson argues that "[h]aving placed undue emphasis on the defendant's duty, the court should have reminded the jury that it is the prosecution's burden of proof on this issue once there is evidence of appellant's withdrawal." First, the court did not place undue emphasis on the defendant's duty, but merely explained the law. Further, it was well within the trial court's discretion not to remind the jury of the reasonable doubt standard. The jury did not indicate it needed clarification about the burden of proof, only that it desired clarification about the substantive elements of the withdrawal from a conspiracy defense. Given that the jury appeared to understand its duty in weighing the evidence, the court was under no obligation to elaborate on the standard instruction or remind the jury of the burden of proof. (See People v. Beardslee, supra, 53 Cal.3d at p. 97.)
3
The Trial Court Did Not Err When Denying McPherson's
Request To Reopen His Closing Argument
McPherson's counsel requested he be allowed to reopen his closing argument in the event the court answered the jury's question regarding withdrawal from a conspiracy with an interpretation of the instruction or by adding "clarifying verbiage." McPherson contends the trial court prejudicially erred by refusing to allow him to reopen his closing argument because "the court's change in the instruction would have had an impact on the jury." We do not agree.
Defendant has a constitutional and statutory right to present a closing argument. (Herring v. New York (1975) 422 U.S. 853, 865 [45 L.Ed.2d 593, 602]; § 1093, subd. (e).) As a matter of statutory law, the trial court is to decide which instructions to give before the commencement of argument. (§ 1093.5.) The reason for this rule is to give the parties the opportunity to intelligently and persuasively argue the case to the jury. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 341.) "Material modification and departure from agreed upon instructions may deprive a defendant of a fair trial." (Ibid.) However, there is no error where a modification is de minimis and it neither changes the thrust of the instruction nor prejudices the defense's argument. (Ibid.)
As described, the trial court's clarification of the jury instruction on withdrawal from a conspiracy did not change the meaning of the original instruction but simply restated that McPherson must communicate his withdrawal to the coconspirators known to him. Communication with the coconspirators known to McPherson necessarily means all coconspirators known to him. Neither did the clarification prejudice McPherson's argument. McPherson argued he withdrew from the conspiracy based on the conversation defendants had with Toews in the car after Godines and Mabson burglarized the wrong apartment. Based on that conversation, McPherson argued the prosecutor could not disprove withdrawal beyond a reasonable doubt. Absent from the argument was a parsing of the jury instruction and to whom McPherson was required to communicate his withdrawal.
We do not see how McPherson's argument would have changed if given another opportunity to argue to the jury. The court's clarification did not directly contradict McPherson's argument that he withdrew. McPherson did not focus on the communication element or argue that he was not required to communicate his withdrawal to Campbell. McPherson read the jury instruction as printed and argued the evidence clearly established he did not intend the burglary or robbery of Sanderson at the time Godines shot him, thus he was not responsible for Godines's or Mabson's conduct. Because the trial court's clarification of withdrawal jury instruction did not change the thrust of the original instruction and did not prejudice McPherson's argument, the court did not abuse its discretion.
C
The Trial Court Did Not Have A Sua Sponte Duty To Provide
The Jury With Verdict Forms For Conspiracy
McPherson contends the trial court had a sua sponte duty to instruct the jury on conspiracy as a lesser included offense of felony murder, in addition to instructing the jury on conspiracy as a theory of liability. More specifically, he argues that "when participation in a conspiracy is a theory of liability for felony-murder and the jury is instructed on conspiracy, the court should provide the jury with verdict forms for conspiracy as a lesser included offense whenever the evidence would support a finding that the defendant withdrew from the conspiracy before the killing." The problem with defendant's argument is that conspiracy was not "a theory of liability" relied upon by the prosecution. Thus, his contention lacks merit.
Our Supreme Court has unequivocally held that the only uncharged offenses the jury may consider in returning a verdict are necessarily included lesser offenses. (People v. Birks (1998) 19 Cal.4th 108, 118-119.) "Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (Birks, at p. 117.) Here, the information charged defendants with the first degree murder of Sanderson, with special circumstance allegations that the murder was committed during the commission of an attempted robbery and a burglary. There is but a single statutory offense of murder, though felony murder has elements distinct from those of murder with express or implied malice. (People v. Kipp (2001) 26 Cal.4th 1100, 1131.) Among those elements is that the killing occurred during the commission or attempted commission of the predicate felony -- in this case, robbery or burglary. (§ 189.) Thus, felony murder cannot be committed without also committing or attempting to commit the predicate felony.
In most felony-murder prosecutions, the lesser included offense doctrine does not come into play. The duty to instruct on a lesser included offense does not arise unless substantial evidence supports a conclusion that the defendant is guilty only of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Ordinarily, a defendant charged with felony murder cannot be liable for the predicate felony alone; liability for murder "committed in the perpetration of" a designated felony flows inevitably from commission of the felony. (§ 189.) To be entitled to verdict forms for conspiracy to commit the underlying felony in a felony-murder case, the defense must present evidence sufficient to support a withdrawal defense that would limit liability to the felony.
Nor will conspiracy be a lesser included offense when the facts might support the defendants' guilt of the felony on a conspiracy theory, but the prosecution makes no attempt to prove conspiracy. In such a case, the elements of conspiracy are not necessarily included in the elements of the felony murder. Thus, uncharged conspiracy as a theory of liability requires an exception to the usual rule that neither party's choice of strategy can preclude the jury's consideration of a lesser included offense. (See People v. Birks, supra, 19 Cal.4th at p. 127.) It is only when the prosecution undertakes the burden of establishing conspiracy as a basis of felony-murder liability that conspiracy becomes a lesser included offense. In that event, the conspiracy is included within the elements the prosecution must prove to establish felony murder and prosecutorial discretion over which charges to pursue is preserved. (Id. at pp. 132-136.)
Here, the prosecution did not undertake the burden to prove a conspiracy. The theory of liability for murder most strongly supported by the evidence, and most persistently argued by the prosecutor, was aiding and abetting liability. In fact, the prosecutor told the court she was not relying on conspiracy to prove McPherson's or any other defendant's guilt. During closing argument, the prosecutor did not mention conspiracy and did not recite the elements nor apply them to the evidence. Further, just because Campbell's and Toews's statements were admitted as coconspirator statements did not require the prosecution to charge or the court to provide verdict forms for the crime of conspiracy. (See People v. Gann (2011) 193 Cal.App.4th 994, 1005.) Because the prosecution did not undertake the burden of proving a conspiracy, the trial court was not obligated to provide the jury with verdict forms for the crime.
D
Mabson Forfeited His Challenge To The Instruction On Coconspirator Statements
The trial court instructed the jury on coconspirator statements using the pattern jury instruction CALCRIM No. 418. The instruction prohibits the jury from considering a statement made by any coconspirator when "deciding whether the People have proved that the defendants committed any of the crimes charged," unless the People have met certain foundational requirements, including that the statement was made in furtherance of a conspiracy. (CALCRIM No. 418.) The instruction also charges that the jury "may not consider statements made [by a coconspirator] after the goal of the conspiracy had been accomplished." (CALCRIM No. 418.)
Mabson separately argues this instruction "commanded the jury to categorically disregard statements made by Campbell and Toews to the police, occurring well after the conspiracy to rob Sanderson ended." He also acknowledges his attorney did not object to this instruction in the trial court, but urges us to consider the merits because the error would have affected his substantial rights in that the jury was precluded from considering exonerating evidence. He also asserts his counsel was ineffective for failing to object to the instruction. We disagree; Mabson forfeited his claim.
The problem with Mabson's argument is that the instruction did not instruct the jury to "categorically disregard" Campbell's and Toews's postconspiracy statements. The instruction charged the jury to disregard their postconspiracy statements when determining whether defendants "committed any of the crimes charged." Further, when read with other instructions, the jury was instructed to consider the postconspiracy statements when assessing the women's credibility and the truth of their prior statements. (CALCRIM No. 318.) We assume the jury understood and followed these instructions. (People v. Pearson, supra, 56 Cal.4th at p. 414.)
These principles are correct statements of law. For a coconspirator's statement to be admissible for its truth it must be "made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy [¶] [and] . . . prior to or during the time that the party was participating in that conspiracy." (Evid. Code, § 1223, subds. (a), (b), italics added; People v. Jeffery, supra, 37 Cal.App.4th at p. 215.) The rules of evidence allow coconspirator statements to be considered when determining guilt when, among other things, those statements were made during or prior to the conspiracy. Instructing the jury it could not consider statements made after the conspiracy when determining defendants' guilt complied with those rules.
Because the instruction allowed the jury to use Campbell's and Toews's statements when determining their credibility, Mabson cannot show the jury was precluded from considering exonerating evidence, thus his substantial rights were not violated. For these same reasons, he cannot show his counsel was ineffective. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698] [counsel is not ineffective when there is no reasonable probability the result of the proceedings would have been different had counsel objected].) Accordingly, Mabson has forfeited this claim.
E
Mabson Was Not Prejudiced By The Giving Of CALCRIM No. 301
Following oral argument, we granted Mabson leave to file supplemental briefing on whether the court prejudicially erred when giving CALCRIM No. 301 regarding coconspirator statements. The jury was instructed with CALCRIM No. 301 as follows: "Except for the testimony of Jeannette Campbell and Aubrey Toews, which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." In People v. Smith (2017) 12 Cal.App.5th 766, which was filed after briefing in this case was completed, the Fourth Appellate District reviewed section 1111 and concluded that "[e]xculpatory testimony, by definition, cannot be said to support a conviction and, thus, need not be corroborated." The court therefore found that a modified version of CALCRIM No. 301 was erroneous in stating that " '[t]he testimony of any other person you determine to be an accomplice also requires supporting evidence' " because the instruction implied that both inculpatory and exculpatory testimony need be corroborated to be considered for its truth. (Smith, at p. 780.) The court also acknowledged the standard CALCRIM No. 301 instruction suffers from the same defect as the modified instruction it reviewed. (Smith, at p. 779, fn. 6.)
Relying on Smith, Mabson argues prejudicial error resulted in his case because the jury was prevented from considering Campbell's exculpatory statements claiming he was not involved in the robbery when determining his guilt. The People counter that no prejudice resulted because Campbell's testimony that Mabson was not involved in the shooting was corroborated by Mabson's own statements to Detective McCue following his arrest. Thus, the jury was not required to disregard Campbell's exculpatory statements when determining Mabson's guilt. We agree with the People.
Mabson's statements that he was home the night of the robbery and was not involved in the robbery or shooting directly corroborated Campbell's testimony regardless of whether the jury believed the truthfulness of Mabson's statements. Once corroborated, the jury could consider the testimony for its truth, whether the corroboration or the testimony was credible is a completely different question reserved for the fact finder. While the jury was instructed that the evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice -- that limitation on accomplice testimony was provided specifically in the context of CALCRIM No. 335, which directed the jury on the use of accomplice testimony to support a conviction. The instructions did not in any way preclude the jury from using Mabson's statements to corroborate Campbell's testimony that supported his defense. We therefore conclude there is no probability instructional error affected the outcome of this case and reversal is not required under either the state or federal standards of prejudice.
IV
Godines Did Not Suffer Cumulative Error
Godines contends cumulative error resulted from the trial court's erroneous instructions on felony murder and withdrawal from a conspiracy, and the erroneous admission of McPherson's statement to Campbell, which McPherson attributed to Godines, that she "better not snitch." Reversal for cumulative error is required only where "the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone." (People v. Hill (1998) 17 Cal.4th 800, 845; accord, People v. Roberts (1992) 2 Cal.4th 271, 326 [reversal required where "the whole of [the errors] . . . outweigh[s] the sum of their parts"].) Reversal is required only where " 'it appears "reasonably probable" the defendant would have achieved a more favorable result had the error not occurred.' " (People v. Olivas (2016) 248 Cal.App.4th 758, 773.) We concluded the jury was adequately instructed on felony murder and withdrawal from a conspiracy. We also concluded the trial court did not err when admitting McPherson's statement that Campbell "better not snitch." Because we found no error occurred, we also conclude no cumulative error occurred.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Renner, J.