Opinion
F075057
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY GABRIEL RIVERA, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF160490A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
The victim in this case was shot to death in his detached garage. Defendant Anthony Gabriel Rivera was arrested several months later and charged with the crime. Following a jury trial, defendant was acquitted of first degree murder but convicted of second degree murder (Pen. Code, §§ 187, subd. (a), 189) (count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 2). As to count 1, the jury also found true that defendant personally and intentionally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).)
All further statutory references are to the Penal Code.
Section 189 was amended effective January 1, 2019, but that amendment is not relevant where, as here, defendant was found to be the actual killer. (Sen. Bill No. 1437 (Reg. Sess. 2017-2018) ch. 1015, § 3.) Section 29800 was also amended effective June 27, 2017, but that amendment is not relevant to the issues in this case. (Assem. Bill No. 103 (Reg. Sess. 2017-2018) ch. 17, §44.)
Section 12022.53 was amended effective January 1, 2018 (Sen. Bill No. 620 (Reg. Sess. 2017-2018) ch. 682, § 2) (Senate Bill No. 620 or Sen. Bill No. 620), and effective January 1, 2019 (Sen. Bill No. 1494 (Reg. Sess. 2017-2018) ch. 423, § 114). The amendment pursuant to Senate Bill No. 620 is discussed in part V. of the Discussion. The amendment pursuant to Senate Bill No. 1494 is not relevant here.
The trial court sentenced defendant to a term of 15 years to life on count 1, plus an additional 25 years to life for the firearm enhancement, for a total indeterminate term of 40 years to life in prison. On count 2, the court imposed the upper term of three years and stayed it pursuant to section 654.
On appeal, defendant claims the trial court erred, in violation of his rights under state and federal law, in its instruction to the jury with CALCRIM No. 207 (Proof Need Not Show Actual Date), CALCRIM No. 372 (Defendant's Flight) and CALCRIM No. 359 (Corpus Delicti: Independent Evidence of Charged Crime), and that defense counsel rendered ineffective assistance of counsel, in violation of the Sixth Amendment, by failing to request a limiting instruction regarding a witness's plea agreement. He also claims that the prosecutor waited until rebuttal during closing argument to correct a witness's false testimony, in violation of his right to due process. Finally, he claims cumulative error and, in light of Senate Bill No. 620, he requests remand so that the trial court may exercise its discretion whether or not to strike the firearm enhancement.
The People dispute defendant's entitlement to any relief on his claims. They concede that because the date of the crime was fixed by the evidence and defendant was relying on a complete alibi defense for that date, the trial court erred in instructing the jury with CALCRIM No. 207, but they contend the error was harmless. They also concede that Senate Bill No. 620 applies retroactively to this case, but contend remand would be an idle act on the facts of this case.
We agree with defendant that he is entitled to remand so the court may exercise its discretion in the first instance with respect to whether to strike or dismiss the firearm enhancement. We otherwise affirm the judgment.
FACTUAL SUMMARY
I. Prosecution Case
A. Shooting on March 13, 2015
The victim in this case, Jose B., lived with his father, sometimes staying in the house and sometimes staying in the detached garage. There was a lot of foot traffic to and from the garage on a regular basis, and law enforcement had some information that Jose was dealing drugs from the garage, although no evidence of drug paraphernalia, other than possibly some marijuana pipes, was found at the scene of his murder. Jose's father never talked to Jose's visitors and "just ... mind[ed] [his] own business," but he recognized defendant as someone who often came to see Jose.
On the evening of March 13, 2015, one or two men whom Jose's father did not know and was not able to identify knocked on the door of his house and informed him that Jose was on the ground in the garage. He ran to the detached garage and found Jose on the ground. Due to a recent accident, Jose was using a walker and his jaw was wired shut. Jose opened his eyes and his mouth moved, but no words came out. Jose's father called 911 and by the time the fire department responded shortly thereafter at approximately 8:30 p.m., Jose was dead from a single gunshot wound to his head. He had a high level of methamphetamine (meth) and its metabolite, amphetamine, in his blood at the time of death, along with a marijuana byproduct.
Jose's father's ability to see clearly was addressed at trial. He lost one of his eyes in an accident years before the crime and had undergone surgery on his remaining eye approximately one month before Jose was killed. Although he testified he could see well, he was recovering from the eye surgery at the time of the crime and, at trial, his eye was producing a lot of tears and his vision was only clear up to approximately six feet. The detective who interviewed him testified that he had also had a stroke prior to the crime.
The gun was never recovered and although the bullet was recovered from Jose's body, there was no evidence introduced as to its caliber. There was no physical evidence tying defendant to the crime scene and there were no known third party witnesses to the shooting.
There was no evidence that more than one shot was fired and although, unlike revolvers, semiautomatic firearms eject the shell casings, the lead investigator conceded that shooters sometimes "polic[e] their brass" by collecting the ejected shell casings.
B. Postshooting Eyewitness Testimony
1. Rick G.
a. Trial Testimony
At the time of the crime, Rick G. lived with his partner and their young child approximately six or seven blocks (one-half mile) from the crime scene in a two-story apartment (referred to hereafter as Rick's apartment). There were three residences on the same lot, including a house that shared a common wall with Rick's apartment (referred to hereinafter as the house). Each residence had a separate fenced yard. During that time period, Rick was on parole and actively using meth. He occasionally allowed Adolfo L., a young fellow drug user whom Rick knew as "Junior," and Adolfo's girlfriend to stay with him. By the time of trial, Rick no longer lived in that apartment, he was no longer on parole and he had not used meth for approximately six months.
Rick testified that one night, he and Adolfo were walking back to his apartment from a store around 11:00 p.m. or 12:00 a.m. As they reached the entrance, a man he had never seen before but whom he identified in court as defendant ran up to them and went inside the apartment. Adolfo and the man, who was out of breath and jittery, seemed to know each another. Rick testified the man had "something" with him and was reaching for his waistline. After what Rick estimated to be 20 to 30 minutes, Adolfo talked the man into leaving the apartment. Adolfo left with the man and did not return that night. Rick testified that he last saw Adolfo at the time of their arrest, which was March 17, 2015.
Rick thought the man ran into his apartment the day before he and Adolfo were arrested, but he testified that he no longer had much independent recollection of the events in question, other than that someone ran into his apartment. He denied he saw the man with a gun that night, and he denied he told police during the interview that followed his arrest that he saw a gun, but he stated he was being truthful then and now. Rick also did not remember what the man was wearing that night and he did not recall being asked that question by detectives. A detective testified that Rick selected someone other than defendant from the photo lineup he was shown, but when he reviewed the lineup in court, Rick believed the man he previously selected in the lineup was the man he saw in court: defendant. Rick denied knowing anyone named Elaine and said no one named Elaine had lived in the house next to him.
The evidence established that Jose was killed on March 13, 2015, and that Rick and Adolfo were arrested on outstanding warrants on March 17, 2015. Each gave a statement at the scene of their arrests to a probation officer and then later that same day gave a statement to a detective. As relevant to defendant's first claim, discussed post, there were inconsistencies in the evidence regarding the date Rick and Adolfo claimed they saw defendant.
b. March 17, 2015: Day of Rick's and Adolfo's Arrest
On the afternoon of March 17, 2015, Rick, who had an outstanding felony warrant, was arrested at his residence by probation officers. Adolfo, who had an outstanding misdemeanor warrant, was also arrested. At one point, Adolfo was inside the apartment with a probation officer while Rick was detained outside on the driveway. Adolfo brought up to the officer a shooting he stated had occurred the night before on Crawford Street, which is the street where Jose had lived. Adolfo identified "Tripps" as the person he believed was involved in the shooting. Adolfo also stated the person involved was wearing a batting glove that had been thrown in the trashcan inside Rick's apartment. During a search of Rick's apartment, officers located a batting glove, which subsequent DNA testing linked to defendant, inside the trashcan. A probation officer thereafter asked Rick if anything happened the night before and Rick responded, "Oh, yeah, you mean the guy that ran into my house with a gun acting crazy?"
Defendant was known as "Tripps."
Adolfo and Rick were interviewed later that day by a detective involved in the investigation into Jose's murder. Rick stated that between 6:00 p.m. and 8:00 p.m. on March 13, 2015, a man ran up to his apartment "scared shitless and acting paranoid." Rick said the man was wearing blue or black basketball shorts, a black shirt, white shoes and a red baseball cap. The man was only inside Rick's apartment for a few minutes, and Rick saw the handle of a revolver sticking out of the waistband of the man's pants. The three men then left the apartment; Adolfo and the man headed off somewhere together while Rick left for the store.
Rick could not remember the name of the man during the interview, but after the detective had Rick brought back for a DNA sample, Rick, appearing to have just remembered, "yelled out" that the man's name was "Tripps." When shown a six-pack photo lineup that included defendant, Rick selected an individual other than defendant, however.
2. Adolfo
a. Trial Testimony
At trial, Adolfo testified that at the time of the crime, he was a "dope fiend" and he "hustl[ed]" to survive by trading and selling things. Adolfo knew Rick and he, along with his girlfriend, lived with Rick, Rick's girlfriend and their child for approximately one month. At one point, he also lived in the house next to Rick's apartment.
In March 2015, Adolfo and Rick were returning from buying some meth and marijuana. Adolfo described seeing lots of police and a police helicopter. He thought it was sometime between 11:00 p.m. and 12:00 a.m., but he did not really remember. Adolfo had known defendant for years but had not seen him since 2010. Adolfo had never seen defendant at Rick's apartment, but that night, defendant ran up to them and then went inside the apartment. Defendant had a large, black revolver with him and he was wearing shorts, a white T-shirt and the batting glove later found by probation officers. He was pale, scared and crying. He sat down on the stairs inside the apartment, put the gun in his mouth and closed his eyes. Adolfo testified he consoled defendant and stopped him from shooting himself. Defendant then put the gun in a black plastic bag he retrieved from the kitchen and tied the bag.
Adolfo testified that Elaine C., who lived in the house on the property at one point and with whom Adolfo was once close, knocked on the door to Rick's apartment. Elaine went directly over to defendant and asked if he was okay. Defendant handed Elaine the gun, and they left the apartment with the gun, hopping the fence. Adolfo said it was dark outside and he watched the police activity from the second story of the apartment. He saw Elaine the next day but not thereafter. He said that she vanished because she no longer trusted him, and he admitted receiving a Facebook message from her to the effect that karma would get him.
Adolfo testified that he had never met Jose and did not know who he was, but he and Jose shared some mutual friends and Adolfo had heard Jose's name before. Adolfo thought that defendant ran up to Rick's apartment on the same day Jose was killed and that he, along with Rick, was arrested by probation three or four days later.
b. Statement to Detectives on March 17, 2015
Adolfo gave several statements to law enforcement on the day of his arrest on March 17, 2015. He told a probation officer at the scene of his arrest that "Tripps" ran up to Rick's apartment the night before, which would have been March 16, 2015. Later that day, he told detectives that he thought he saw defendant at Rick's apartment on March 13 or 14, 2015, although he could not be sure.
Adolfo stated that he and Rick had just returned from buying marijuana when defendant arrived at Rick's apartment on a bicycle. Defendant was wearing shorts, a red hat and a batting glove on his hand, and he had a revolver with him. After defendant took off the glove and threw it on the floor, Adolfo picked it up and threw it in the trashcan. Adolfo said that when defendant left Rick's apartment that night, he jumped the fence into a neighbor's yard. Adolfo also left at that time to purchase more marijuana. He never mentioned Elaine during the interview.
3. Elaine
a. Trial Testimony
Elaine had known defendant for approximately four or five years and Adolfo, whom she considered her "street brother," for approximately three and one-half years. Like Rick and Adolfo, she was using meth at the time of the crime, but testified she had been clean for the past year. At one time prior to the murder, she lived in the house that was on the same lot as Rick's apartment. She knew a woman who lived in the apartment, but did not know Rick. One night, Elaine was at the house retrieving some of her belongings she left there when she moved and as she was walking out, Adolfo walked in. She then saw defendant standing outside the door.
Defendant looked scared and nervous, and he gave Elaine a tight hug. Adolfo was fidgeting and defendant kept looking at Elaine, which seemed odd. Defendant told her that he was "gone" and "done," and that he had shot his "homie, Smurf." He stated, "I didn't want to do it. I killed him. I didn't want to do it."
Elaine took defendant into the bathroom to calm him down. He was scared and kept telling her he did not want to do it. Defendant then told Elaine she had to get the gun. He told her it was in a black bag under a chair in Rick's apartment. After Elaine retrieved the gun from Rick's apartment, defendant told her she had to "dome him," meaning shoot him in the head. After she said no, he told her to get rid of the gun.
The police were blocking off streets by then, but Elaine was able to bicycle away with the gun in her backpack. She ended up riding to Mark's house and asking for his help. Although she and Mark both denied they saw the gun, which was wrapped up, she told him she had a gun that was hot. Mark took the gun and gave her some cash and drugs in exchange for it. She rode home afterward.
Elaine testified that she and Adolfo were close at one time, they drifted apart after the crime. She admitted sending him a Facebook message that stated, "Junior will get what's coming to him. It's only a matter of time." She explained that she was not threatening Adolfo, but she felt betrayed because she heard he was saying things about her and defendant.
b. Statement to Detectives on March 20, 2015
The detective who interviewed Elaine three days after Rick and Adolfo were arrested did not recall how he came by her name, but it was after he interviewed Adolfo. During the interview, Elaine initially mentioned only Adolfo and she told detectives she believed he was involved. She said he had been acting strangely ever since his brother died and he told her he learned his brother was murdered by someone named Jose. She also said he was wearing the pair of jeans that were later found in a sink with bleach and water. She denied any involvement with bleaching the jeans.
Adolfo testified his brother was shot and he did not believe it was suicide, but he denied telling anyone that he believed someone named Jose shot his brother.
In the house on the same lot as Rick's apartment, law enforcement located a pair of jeans in a sink with water and bleach but did not seize the jeans. Adolfo testified that he was wearing jeans that night.
After detectives employed a ruse and told Elaine that they knew defendant was involved, her story changed. She stated defendant told her he killed "Smurf" and when she was shown a photo of Jose, she confirmed he was "Smurf." Elaine also stated that defendant was wearing jeans, which she helped him remove in the bathroom so she could wash them while he showered. Underneath, he was wearing basketball shorts.
At trial, Elaine testified that she lied to detectives in the beginning because she was afraid of losing her children. She began discussing defendant's involvement after detectives told her that defendant said she took the gun, and after detectives threatened her with the loss of her children and told her she could be a witness or a suspect.
C. Disposal of Gun
Mark G. was also interviewed by detectives three days after Rick and Adolfo were arrested. Although he was evasive, he eventually confirmed he received a firearm and then sold it to an acquaintance, whom he refused to name.
At trial, Mark was granted immunity from prosecution. He testified that late one night in March 2015, Elaine, who was an acquaintance, came to his house with a gun, which he recalled was packaged in an old case. She traded the gun for some meth, and he then sold the gun a few hours later without ever looking at it.
II. Defense Case
Defendant and his girlfriend lived with his sisters. Defendant's girlfriend testified that they babysat his nieces on March 13, 2015, while his sisters were at work, and they stayed inside the house all that day and night.
The next morning around 10:00 a.m., defendant accompanied his girlfriend to her job, which entailed signing people up for free phones at an outdoor location. While they were there, a woman pulled defendant aside and expressed her sorrow to him for his loss. Defendant seemed upset. His girlfriend asked him if everything was okay and gave him a hug. She did not provide this information to law enforcement after defendant was arrested because she was pregnant and wanted to avoid stress.
DISCUSSION
I. Instructional Error Claims
A. Standard of Review
Defendant advances three claims based on the trial court's alleged failure to properly instruct the jury. We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) "'"[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in [People v.] Watson [(1956) 46 Cal.2d 818 (Watson)].'" (People v. Beltran (2013) 56 Cal.4th 935, 955; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 919.) "[W]e inquire whether the jury was 'reasonably likely' to have construed them in a manner that violates the defendant's rights." (People v. Rogers (2006) 39 Cal.4th 826, 873; accord, People v. Friend (2009) 47 Cal.4th 1, 79.) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
Defendant did not object to the instructions he now challenges on appeal. Generally, the failure to object in the trial court forfeits the claim on appeal, but there is an exception "if the substantial rights of the defendant were affected thereby." (§ 1259; accord, People v. Johnson (2016) 62 Cal.4th 600, 638-639.) Defendant claims that the errors resulted in the violation of his constitutional rights and, therefore, we elect to reach the claims on their merits without deciding whether the forfeiture doctrine applies. (People v. Johnson, supra, at p. 639.)
B. CALCRIM No. 207: Proof Need Not Show Actual Date
1. Background
Without objection from the either party, the trial court instructed the jury pursuant to CALCRIM No. 207 as follows: "It is alleged that the crimes occurred on or about March 13th, 2015. The People are not required to prove that the crimes took place exactly on that date, but only that it happened reasonably close to that day." Given the date of Jose's murder was fixed by the evidence as March 13, 2015, and he relied on a complete alibi for that date, defendant claims that the giving of this instruction was error under state law and resulted in prejudice because there is a reasonable probability that it affected the outcome of trial. (People v. Barney (1983) 143 Cal.App.3d 490, 497 (Barney).) Defendant also claims that the giving of this instruction violated his Sixth Amendment rights by interfering with his trial counsel's ability to effectively represent him, entitling him to reversal per se. (Strickland v. Washington (1984) 466 U.S. 668, 692 (Strickland).)
The People concede the trial court erred in instructing the jury with CALCRIM No. 207, but dispute that the error was prejudicial or that it falls within the category of Sixth Amendment errors that are prejudicial per se.
2. Trial Court Erred in Giving CALCRIM No. 207
Section 955 provides, "The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." (Italics added.) Thus, "[o]rdinarily, the People need not plead the exact time of commission of an alleged offense. [Citation.] However, if the defense is alibi or, ..., lack of opportunity to commit the offense, the exact time of commission becomes critically relevant to the maintenance of the defense. An instruction which deflects the jury's attention from temporal detail may unconstitutionally impede the defense. The defendant is entitled as a matter of due process to have the time of commission of the offense fixed in order to demonstrate he was elsewhere or otherwise disenabled from its commission." (Barney, supra, 143 Cal.App.3d at p. 497; accord, People v. Richardson (2008) 43 Cal.4th 959, 1027; People v. Jones (1973) 9 Cal.3d 546, 557 (Jones), overruled on another ground by Hernandez v. Municipal Court (1989) 49 Cal.3d 713, 719, overruled by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
It was uncontroverted that Jose died the evening of March 13, 2015. Jose's father testified that he saw Jose the morning of March 13, 2015, and after he ran to the garage that evening and found Jose on the ground, Jose opened his eyes and moved his mouth. Jose's father called 911 and the fire department responded shortly thereafter. By the time the fire department arrived at approximately 8:30 p.m., Jose no longer had any signs of life and his death certificate was entered into evidence. At trial, defendant relied on a complete alibi provided by his girlfriend, who testified that they were at home babysitting his nieces all day and night on March 13, 2015, and they did not leave the house until the next morning.
Because the evidence established that Jose died on March 13, 2015, and defendant relied on a complete alibi defense, we agree with the parties that the trial court erred in instructing the jury with CALCRIM. No. 207. We find the error harmless, however.
3. Error Harmless
a. Standard of Review
State law errors are reviewed under the standard set forth in Watson, supra, 46 Cal.2d at page 837, which requires a determination "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354.) Under the federal standard articulated in Chapman v. California (1967) 386 U.S. 18, 24, courts "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16, 18; People v. Gonzalez (2012) 54 Cal.4th 643, 663). In this case, the parties apply the Watson standard of review to the error under state law, and defendant also argues the error is reversible per se under the Sixth Amendment, discussed in part I.B.4. As the error in giving CALCRIM No. 207 in circumstances where the evidence shows the crime occurred during a fixed period of time and the defense relies on this fixed period to advance a defense based on alibi or lack of opportunity raises constitutional concerns (People v. Richardson, supra, 43 Cal.4th at p. 1027; Barney, supra, 143 Cal.App.3d at p. 497), we shall apply the more stringent federal standard of review for the purpose of resolving defendant's claim (People v. Seabourn (1992) 9 Cal.App.4th 187, 194).
b. Date of Murder Conclusively Established Without Reliance on Rick's and Adolfo's Testimony
As defendant argues, there were inconsistencies in the evidence with respect to the date Rick and Adolfo said they saw defendant run into Rick's apartment. Rick testified that he thought he saw defendant the day before he was arrested on March 17, 2015. Rick also initially testified that he thought he was arrested around March 20, 2015. More than 18 months had passed since the murder, and Rick was not certain of dates; he explained that he did not have much independent recollection of events that night beyond defendant running into his apartment. However, when Rick was interviewed shortly after his arrest on March 17, 2015, he told a detective that he saw defendant on March 13, 2015.
Adolfo testified that he saw defendant three or four days before he was arrested, which he believed was the same day Jose was killed. During the probation search on March 17, 2015, Adolfo brought up the shooting on Crawford that occurred "the previous night," but he told a detective later that same day that he had seen defendant three or four days ago. As such, while there was evidence that Rick and Adolfo saw defendant on March 13, 2015, there was also some evidence that they instead saw him on March 16, 2015. Defendant, however, overstates the importance of Rick's and Adolfo's testimony on this point.
First, the prosecution's case linking defendant to Jose's murder was not founded on the testimony of Rick and Adolfo alone. The testimony of Elaine, which defendant's argument overlooks, was critical, as she testified that she not only saw defendant with Adolfo on March 13, 2015, but that defendant admitted to her he shot Jose. Further, Elaine, at defendant's direction, retrieved a gun from Rick's apartment and then disposed of it, an act corroborated by Mark's testimony.
Although the case against defendant was circumstantial and there were attendant credibility issues with the prosecution's three eyewitnesses for the jury to resolve, the witnesses' accounts were notable for what they had in common: defendant was visibly upset and had a gun with him on the night the witnesses encountered him. Both Elaine and Adolfo testified to noticeable police activity the night they saw defendant; Adolfo said he watched the activity, which included a police helicopter, from Rick's apartment and Elaine said police were blocking off streets by the time she rode off with the gun in her backpack. Crucially, this is not a case where the jury could have concluded that Jose died at a time other than the evening of March 13, 2015, thereby permitting the jury to disregard defendant's evidence of an alibi.
Second, while the prosecutor relied on Rick's and Adolfo's testimony to show that they encountered defendant with a gun and behaving suspiciously on the night of Jose's murder, the prosecutor did not rely on their testimony to establish the date of the murder. The jury instructions as a whole made clear that the People bore the burden of proving defendant "was present and committed the crime[s] with which he [was] charged" (CALCRIM No. 3400) and we are not persuaded that, in this case, the erroneous instruction confused the jury such that they may have believed that defendant was home all day and all night on March 13, 2015, but nevertheless concluded that he shot Jose on a different day. (Barney, supra, 143 Cal.App.3d at p. 498.)
c. Barney Decision
We reject defendant's argument that the error in this case is like that in Barney, requiring reversal. The defendant in Barney sexually molested his daughters and then his granddaughter, commencing when the victims were six or seven years old and ending for the adult daughters when they left the house. (Barney, supra, 143 Cal.App.3d at p. 493.) Evidence at trial included numerous uncharged acts of sexual abuse. (Id. at p. 494.) In addition to one count involving his daughter, the defendant was charged with two acts of abuse against his granddaughter, who was nine years old at the time of trial. (Id. at pp. 492, 497.) Given the regularity with which the defendant abused his granddaughter and her young age, identification of specific dates underlying the acts of abuse was problematic. (Id. at p. 497.) As a result, the prosecutor tied the first act of abuse to a holiday period and, relevant here, identified the second act as the most recent one. (Ibid.) Based on the evidence adduced at trial, the second act was fixed to a specific weekend, the Sunday of that weekend being the day before authorities were alerted to the abuse. (Id. at p. 498.) The defendant presented evidence that others were present during this time period, thereby bringing the victim's testimony into dispute as to material details. (Ibid.)
The Court of Appeal concluded the instruction informing the jury that the prosecutor need only prove the crime happened on or about the date specified was prejudicial error. (Barney, supra, 143 Cal.App.3d at p. 498.) This error was compounded by the prosecution's argument that it need only prove a last act and not the time of the act. (Ibid.) The court explained, "The jury may well have believed defendant's witnesses concerning his lack of opportunity on the weekend in question or, because of its vagueness and alteration, disbelieved [the victim's] testimony of the terminal act. The jury may have convicted him on the erroneous assumption it was proper to conclude some terminal act in the unrebutted series occurred near the weekend in question." (Ibid.) The court also noted that the jury was not instructed it had to agree on the particular act underlying the charge. (Ibid., fn. 10.)
The jury was instructed pursuant to CALJIC No. 4.71, which is analogous to CALCRIM No. 207. (Barney, supra, 143 Cal.3d at p. 497, fn. 7.)
Here, unlike in Barney, there was but a single criminal act and, as discussed, the date of the murder was not in dispute. While defendant argues the jury could possibly have relied on Rick's and Adolfo's testimony to conclude that Jose was killed on March 16, 2015, the applicable standard of review presumes a rational jury. (People v. Lara (2019) 6 Cal.5th 1128, 1138.) Any conflict in the evidence stemming from Rick's equivocation regarding the date he saw defendant and Adolfo's single, initial statement to a probation officer that he saw defendant the night before his arrest related to whether Rick and Adolfo in fact encountered defendant on the night of Jose's murder, as the prosecution theorized. Given the unrefuted evidence that Jose was shot on March 13, 2015, no rational jury could have accepted defendant's alibi that he was home on that date, but also concluded that the crime happened on a different day. As a result, the erroneous instruction did not have an undermining effect on defendant's alibi defense. (Barney, supra, 143 Cal.App.3d at p. 497.)
d. Jones Decision
The California Supreme Court's decision in Jones, also relied on by defendant, does not compel a contrary result. The defendant in Jones was convicted of three counts of drug sales. (Jones, supra, 9 Cal.3d at p. 547.) The court reversed the judgment on the ground that the defendant's federal constitutional right to trial "'by an impartial jury of the State and district wherein the crime shall have been committed'" was violated. (Id. at p. 548.) For the purpose of guiding the trial court in the event of retrial, the court also addressed the defendant's claim that the court erred in instructing the jury pursuant to CALJIC No. 4.71. (Jones, supra, at p. 556.) Without elaboration, the court concluded the error was prejudicial. (Id. at p. 557.)
In Jones, the officer who bought the drugs from the defendant and whose testimony was offered to establish the three drug sales underlying the charged crimes was also the same witness who initially misidentified the date of one of the drug sales. (Jones, supra, 9 Cal.3d at pp. 556-557.) Although the officer corrected himself, the focus of the defense was the defendant's alibi for the date of that drug sale and his alibi did not cover the misidentified date. (Id. at p. 557.) The court concluded that under those circumstances, the instruction informing the jury that the date was immaterial was prejudicial. (Ibid.)
Here, as we have explained, the contradictory testimony in question was not offered to establish the date of Jose's murder. Rather, the date of the crime was conclusively established as March 13, 2015, by testimony from responding fire department and law enforcement personnel, in addition to Jose's father's testimony. Under these circumstances, we are not persuaded that the jury was confused by the court's misinstruction.
4. Error Under Federal Law: Interference with Right to Effective Assistance of Counsel
Defendant also claims that the instructional error constituted state interference with his Sixth Amendment right to the effective assistance of counsel, entitling him to reversal without resort to an analysis of prejudice. We reject this claim.
The right to the effective assistance of counsel under the Sixth Amendment may be violated when the "[g]overnment ... interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense," or when "[c]ounsel ... fail[s] to render 'adequate legal assistance,' [citation]." (Strickland, supra, 466 U.S. at p. 686.) "In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. [Citation.] Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. [Citation.] Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent." (Id. at p. 692.) "The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." (United States v. Cronic (1984) 466 U.S. 648, 659, fn. 25.)
Defendant fails to convince us that the misinstruction here even arguably deprived him of a fair trial by preventing counsel from assisting him effectively and defendant, who bears the burden on this point (People v. Gamache (2010) 48 Cal.4th 347, 378; People v. Stanley (1995) 10 Cal.4th 764, 793), neglects to explain how an error of this type either deprived him of counsel completely or caused counsel to "'entirely fail[] to subject the prosecution's case to meaningful adversarial testing ....'" (People v. Hernandez (2012) 53 Cal.4th 1095, 1104, quoting United States v. Cronic, supra, 466 U.S. at p. 659; see People v. Rivas (2013) 214 Cal.App.4th 1410, 1424-1425 [instructional error not corrected by counsel falls within scope of standard ineffective assistance of counsel claims subject to harmless error analysis]; see also Geders v. United States (1976) 425 U.S. 80, 91 [trial court's sequestration order "prevent[ing the] petitioner from consulting his counsel 'about anything' during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment"]; Herring v. New York (1975) 422 U.S. 853, 863-865 [trial court's refusal to allow defense counsel to deliver a closing argument denied the defendant the assistance of counsel]; People v. Ramos (2016) 5 Cal.App.5th 897, 913 [involuntary removal of the self-represented defendant during critical cross-examination of victim, without appointment of standby counsel, was prejudicial per se and required reversal].)
The parties were on notice that the trial court intended to instruct the jury with CALCRIM No. 207 and defense counsel's apparent oversight in this regard falls firmly within the realm of error relating to the effective assistance of counsel, which is subject to harmless error analysis. (Strickland, supra, 466 U.S. at pp. 691-692; People v. Rivas, supra, 214 Cal.App.4th at p. 1424.) To prevail, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, at p. 694; see People v. Mickel (2016) 2 Cal.5th 181, 198.) For the reasons set forth in the preceding subsection, defendant is unable to meet this burden. There is no reasonable probability of a different result had the error in question not occurred.
C. CALCRIM No. 372: Flight
1. No Reciprocal Duty to Instruct on Absence of Flight
Next, pursuant to CALCRIM No. 372, the trial court instructed the jury, "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. [¶] Now, if you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
Defendant claims that the court's failure to instruct the jury sua sponte on the absence of flight was error. This argument is contrary to controlling authority and we reject it.
Defendant objected to the flight instruction on the ground that it was not supported by substantial evidence, but he did not request a reciprocal instruction on the absence of flight.
Section 1127c states:
"In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
Furthermore, the California Supreme Court has recognized that courts have a sua sponte duty to instruct on flight whenever the prosecution relies on such evidence to show consciousness of guilt (People v. Williams (1997) 55 Cal.App.4th 648, 651), but there is no reciprocal duty to instruct on the significance of the absence of flight, even on request (People v. Staten (2000) 24 Cal.4th 434, 459, citing People v. Green (1980) 27 Cal.3d 1, 39-40, fn. 26 (Green), disapproved on another ground in People v. Aledamat (Aug. 26, 2019, S248105) ___ Cal.5th ___, ___ [2019 Cal. Lexis 6236, *21] & People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; People v. Williams, supra, at p. 651; People v. McGowan (2008) 160 Cal.App.4th 1099, 1104). "[S]uch an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight. [Citation.] Our conclusion [in Green] also forecloses any federal or state constitutional challenge based on due process." (People v. Staten, supra, at p. 459.)
In accord with these authorities, the court did not err by failing to instruct sua sponte on the absence of flight.
2. Cool Decision
Defendant argues that the decision in Cool v. United States (1972) 409 U.S. 100 (Cool) compels the conclusion that reciprocal instruction on the absence of flight is required. Cool is inapposite.
In Cool, the defense relied almost exclusively on the testimony of the defendant's alleged accomplice, which was completely exculpatory in nature. (Cool, supra, 409 U.S. at p. 101.) The trial court instructed the jury on accomplice testimony, in relevant part, as follows: "'I charge you that the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source.'" (Id. at p. 102.)
The United States Supreme Court concluded that the instruction given was flawed in two respects. (Cool, supra, 409 U.S. at p. 104.) First, the court explained that "there is an essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt." (Ibid.) Such an instruction "impermissibly obstructs the exercise of [the right to present exculpatory accomplice testimony] by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable." (Ibid.) Additionally, "the instruction ... has the effect of substantially reducing the Government's burden of proof." (Ibid.)
Neither of these deficiencies is present in CALCRIM No. 372, which merely informs the jury that flight may show consciousness of guilt but cannot, by itself, prove guilt. As such, defendant's attempt to analogize the instruction here to that at issue in Cool lacks force. Because we conclude the court did not err in instructing the jury, we do not reach the issue of prejudice.
D. CALCRIM No. 359: Corpus Delicti Rule
Finally, pursuant to CALCRIM. No. 359, the trial court instructed the jury, "The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that other evidence shows that the charged crime or a lesser-included offense was committed. The other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime and the degree of the crime may be proved by the defendant's statements alone. You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." (Italics added.)
This instruction articulates the corpus delicti rule, which "requires some evidence that a crime occurred, independent of the defendant's own statements." (People v. Ledesma (2006) 39 Cal.4th 641, 721, citing People v. Alvarez (2002) 39 Cal.4th 1161, 1181; accord, People v. Dalton (2019) 7 Cal.5th 166, 218.) "'[T]he modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be "a slight or prima facie showing" permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues.'" (People v. Ledesma, supra, at p. 721, quoting People v. Alvarez, supra, at p. 1181; accord, People v. Dalton, supra, at p. 218.) "The principal purpose of the corpus delicti rule is to ensure that a defendant is not convicted of a crime that never occurred. [Citations.] That purpose is fulfilled by the admission of evidence sufficient to establish that the crime occurred." (People v. Ledesma, supra, at p. 721.) Given its underlying purpose, the corpus delicti rule does not apply to proof of identity or the degree of the crime. (People v. Capers (2019) 7 Cal.5th 989, 1003; People v. Ledesma, supra, at p. 721.)
Defendant does not argue that the instruction given misstates the corpus delicti rule, but he claims that because his statements in this case did not to speak to the degree of the homicide, the instruction informing the jury that it could rely on his statements as proof of the degree of the crime was "fundamentally improper" and provided the jury with a "'shortcut'" that undermined the state's burden of proof. Not so.
As an initial matter, Elaine testified that defendant stated, "I didn't want to do it. I killed him. I didn't want to do it." This statement was probative of his state of mind, which bore on the degree of the crime. The jury is charged with evaluating the evidence, including drawing any reasonable inferences therefrom, and from the evidence determining the facts. (Evid. Code, §§ 210, 312.) Notably, defendant does not challenge his second degree murder conviction as unsupported by substantial evidence, which undercuts his characterization of his statements as not probative of degree.
Regardless, even if we accept defendant's characterization for the sake of argument, the instruction at issue merely informed the jury that, in contrast with the commission of a crime, the degree of a crime may be proved by a defendant's statement alone. (People v. Rosales (2014) 222 Cal.App.4th 1254, 1260-1261 [rejecting challenge to CALCRIM No. 359 on ground it is confusing as to extrajudicial statements and identity]; cf. People v. Rivas, supra, 214 Cal.App.4th at pp. 1427-1428 [concluding CALCRIM No. 359 is confusing, but deficiency does not rise to level of due process violation and error was harmless].) Immediately following the sentence challenged by defendant, the jury was instructed, "You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." The jury was so instructed on more than one occasion. Under these circumstances, we do not agree with defendant that as to the prosecution's burden of proof, the corpus delicti instruction was confusing or that the instructions, as a whole, were confusing. (People v. Rosales, supra, at pp. 1260-1261.) In short, there is no reasonable likelihood that the jury construed the corpus delicti instruction in a manner that violated defendant's rights and, therefore, we need not consider his prejudice argument. (People v. Rogers, supra, 39 Cal.4th at p. 873.)
II. Ineffective Assistance of Counsel: Failure to Request Limiting Instruction Relating to Elaine's Plea
A. Standard of Review
"In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. (Strickland[, supra,] 466 U.S. [at pp.] 687-692.) To demonstrate deficient performance, [the] defendant bears the burden of showing that counsel's performance '"'"fell below an objective standard of reasonableness ... under prevailing professional norms."'"' (People v. Lopez (2008) 42 Cal.4th 960, 966.) To demonstrate prejudice, [the] defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Ibid.; In re Harris (1993) 5 Cal.4th 813, 833.)" (People v. Mickel, supra, 2 Cal.5th at p. 198.)
"On appeal, we do not second-guess trial counsel's reasonable tactical decisions." (People v. Lucas (2014) 60 Cal.4th 153, 278, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) "[A] defendant's burden [is] 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission." (People v. Mickel, supra, 2 Cal.5th at p. 198, quoting People v. Lucas (1995) 12 Cal.4th 415, 437.)
B. No Error
Arising from her role in the events the night of the crime, and based on her agreement to testify in this case, Elaine was convicted of a misdemeanor pursuant to a plea bargain. In relevant part, the trial court instructed the jury pursuant to CALCRIM No. 316 as follows: "If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." (Italics added.)
Relying on United States v. Halbert (9th Cir. 1981) 640 F.2d 1000 (Halbert), defendant claims that defense counsel erred in failing to request a limiting instruction informing the jury, in unequivocal language, that Elaine's plea could not be considered as evidence of his guilt. The People respond that the California Supreme Court has declined to follow Halbert and, regardless, the jury was instructed that it could consider Elaine's conviction only in evaluating her credibility, which counsel may have reasonably concluded was sufficient.
In People v. Williams (2013) 56 Cal.4th 630, 668 (Williams), the California Supreme Court rejected the defendant's reliance on Halbert for the proposition that the trial court erred in failing to instruct the jury that it could not infer the defendant's guilt from his accomplices' guilty pleas. After observing that Halbert was not binding authority, the court distinguished Halbert on the basis that the defendants in that case objected to the codefendants' testimony regarding their guilty pleas and the trial court did not instruct the jury that use of the testimony was limited to evaluating the witnesses' credibility. (Williams, supra, at p. 668.) In Williams, in contrast, defense counsel sought to rely on the accomplices' guilty pleas and did not request a limiting instruction, and the defendant, on appeal, identified no authority requiring the court to give a limiting instruction sua sponte. (Ibid.) Under these circumstances, the high court rejected the defendant's claim of error. (Ibid.)
More recently, the California Supreme Court rejected the argument that the trial court erred in failing to instruct sua sponte that a coparticipant's guilty plea could only be used to assess that coparticipant's credibility. (People v. Dalton, supra, 7 Cal.5th at p. 254.) The court noted, "We rejected a substantially similar argument in ... Williams, supra, 56 Cal.4th at page 668, and [the defendant] cites no persuasive reason to revisit our conclusion." (Ibid.) The court then found there was no prejudice in any event. (Ibid.)
As the People point out, defendant's argument was also rejected by the Court of Appeal in People v. Mackey (2015) 233 Cal.App.4th 32, 119-120. In that case, the jury was instructed in the same manner as was the jury in this case regarding evidence of a witness's commission of "'a crime or other misconduct,'" and the defendants claimed ineffective assistance of counsel by virtue of their attorneys' failure to request the limiting instruction be modified to extend to "a witness [who] was convicted 'or pled guilty ....'" (Id. at p. 119.) The court reasoned, "Rather than reflecting ignorance or indefensible tactics, the defense attorneys' failure to request a more explicit limiting instruction most likely reflected their understanding that the instruction limiting the use of a conviction applied equally to evidence of [the coparticipant's] guilty plea. We cannot attribute their failure to request a different limiting instruction to ignorance of the law or indefensible tactics." (Id. at pp. 119-120.) The court proceeded to find no prejudice if error was assumed. (Id. at p. 120.)
Here, the jury was instructed that it could consider Elaine's misdemeanor conviction only in evaluating her credibility as a witness. While we recognize that defendant is arguing it was error not to request a further limiting instruction specifying that the conviction could not be considered as evidence of his guilt, he fails to persuade us that this is a distinction with a difference. Defense counsel may well have concluded that the limiting instruction given sufficed. (People v. Mackey, supra, 233 Cal.App.4th at pp. 119-120.) As such, defendant fails to show that counsel's performance was deficient, and it is unnecessary for us to reach the prejudice prong of the analysis.
III. Failure to Correct False or Misleading Testimony
A. Procedural Background
Defendant claims that the prosecutor violated his right to due process by waiting until rebuttal argument to correct Adolfo's false testimony regarding Adolfo's attempt to obtain money from the prosecutor prior to testifying. The relevant proceedings are as follows.
The People contend that defendant forfeited this claim by failing to object, while defendant contends that, for policy reasons, the failure to object does not preclude appellate review. Defendant relies on federal appellate cases for the proposition that "[w]here the prosecutor knows that his witness has lied, he has a constitutional duty to correct the false impression of the facts." (United States v. LaPage (9th Cir. 2000) 231 F.3d 488, 492, fn. omitted; accord, United States v. Alli (9th Cir. 2003) 344 F.3d 1002, 1007; Mills v. Scully (2d Cir. 1987) 826 F.2d 1192, 1195; United States v. Sanfilippo (5th Cir. 1977) 564 F.2d 176, 178-179.) We are not bound by decisions of the federal appellate courts (People v. Brooks (2017) 3 Cal.5th 1, 90), and the California Supreme Court, noting that defense counsel in the landmark decision of Napue v. Illinois (1959) 360 U.S. 264, 265-267 was not aware of the false evidence, has applied the forfeiture doctrine to false evidence claims where the falsity was known to defense counsel at the time of trial (People v. Carrasco (2014) 59 Cal.4th 924, 966-967, citing People v. Marshall (1996) 13 Cal.4th 799, 830-831). In any event, the California Supreme Court has also, for the purpose of resolving the claim on its merits, assumed without deciding that the defendant did not forfeit his claim by failing to object. (People v. Morrison (2004) 34 Cal.4th 698, 717.) We elect to do the same here.
During Adolfo's cross-examination, the following exchange between Adolfo and defense counsel occurred:
"[DEFENSE COUNSEL:] Now, prior to testifying here today, you—yesterday, you spoke with [the prosecutor]; is that right?
"[ADOLFO:] Yes.
"[DEFENSE COUNSEL:] And an investigator?
"[ADOLFO:] Yes.
"[DEFENSE COUNSEL:] You asked them for money; is that right?
"[ADOLFO:] I had told them that I didn't want to lose my room because I don't know where I was going to be at, if I was going to be able
even to make it to court today; however, I did make it to court because last time I didn't come to court, I came to jail, you know, so—
"[DEFENSE COUNSEL:] Well, didn't you tell [the prosecutor] that you had already lost your room because you didn't have any money?
[ADOLFO:] No, I lost my room because I couldn't pay the rent because I don't have no income. I had a job and it ended. It was only seasonal. I was registering people to vote ....
"[DEFENSE COUNSEL:] And you weren't—you were asking [the prosecutor] for money; is that right?
"[ADOLFO:] No, I was just asking him, hey, can you, like, help me out with—like, somehow, you know what I mean? Like—somehow, someway, you know what I mean? Because I don't want to be on the streets. I don't—
"[DEFENSE COUNSEL:] And prior to that—to speaking with [the prosecutor] about wanting money, had you been provided any money by any of the police officers involved in this case prior to yesterday's discussions with [the prosecutor]?
"[ADOLFO:] Yes, I have.
"[DEFENSE COUNSEL:] And when was that?
"[ADOLFO:] When they were looking for [defendant].
"[DEFENSE COUNSEL:] They gave you money—police officers did?
"[ADOLFO:] Yes, to help look for him. To give tips. To be their little weasel.
"[DEFENSE COUNSEL:] How much money did the police give you?
"[ADOLFO:] They paid for my room, you know, once or twice.
"THE COURT: For how many days?
"[ADOLFO:] About a week.
"[DEFENSE COUNSEL:] And this was—what timeframe are we talking about?
"[ADOLFO:] It was like right in the—like right when it happened. Like back then when it just happened. When they were looking for him still. The day—I think the day after or the next week where I had called them and told them, hey, man, what's going on, you know what I mean? Because I'm scared. Like, I don't—I don't do this. I've never done this before."
Shortly thereafter, Adolfo testified that he was given $250 for a one-week stay at a motel, plus an additional $50 for food. He estimated that on a second occasion, he was given $300 to stay at a different, slightly more expensive motel, plus an additional $25 for food. The prosecutor had not been aware Adolfo obtained money from the sheriff's department and, on redirect examination, he questioned Adolfo on that issue.
The prosecutor subsequently called, as his last witness, a sheriff's deputy on the fugitive apprehension team who was involved in paying Adolfo for information. The deputy explained although informants are generally not paid until they provide information of substance, they are occasionally paid in advance and the process usually lasts only a few weeks. Adolfo, who did not have a place to stay, represented to law enforcement that he could lead them to defendant and, therefore, between March 18, 2015, and March 24, 2015, the sheriff's department made four payments to Adolfo totaling $820. After Adolfo failed to lead them to defendant, they stopped paying him.
Following defendant's arrest several months later, the sheriff's department referred Adolfo to the district attorney's witness/victim program and informed him the office might be able to assist him with more money.
The deputy also explained to the jury that information regarding the payment of informants is kept in a confidential file and is not documented in a report. If the information leads to apprehension, however, it will then be documented.
During rebuttal, the prosecutor argued:
"Let's talk about what motives do the witnesses have to lie. [Adolfo's] a hustler. He testified to that. Goes out swaps, begs, borrows, scrounges whatever, sells things to get money, trades things. When he testified, he said he had to scrape together two bucks for a joint. This is a
guy, by most average descriptions, has a very rough life. Semi-homeless, where he has to borrow a place from Rick ... to live up inside the place. He hunts and works and scrapes everyday for what he's got.
"Has he got a motive to lie? He might. He got money from the county, 820 bucks. He tried to get money from the DA's office in the middle of this trial. He's trying to get money.... The motivation for his statement that day, though, was to talk himself out of trouble. Remember, this happened on the night of the 13th. Why didn't he call the police? He had a probation warrant ... and he was on probation. So he's going to say, hey, I'm over here at ..., this guy came running up here with a gun in my house, oh, yeah, come over. I'll give you a statement right as you're putting the cuffs on me to take me to jail. You got me, I got something better.
"He's a hustler [who] lives on the streets. He's talking himself out of a trip to jail. And it worked because he was cited and released that night when he was at the jail, and was given more money later. Doesn't make his statement not true, you just have to think about his motivation when he's making them." (Italics added.)
B. Legal Standard
"'Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted.' (People v. Seaton (2001) 26 Cal.4th 598, 647 [relying on Napue v. Illinois[, supra,] 360 U.S. 264 and other decisions].) Put another way, the prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. (In re Jackson (1992) 3 Cal.4th 578, 595, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.) This obligation applies to testimony whose false or misleading character would be evident in light of information known to the police involved in the criminal prosecution (In re Jackson, supra, 3 Cal.4th at p. 595), and applies even if the false or misleading testimony goes only to witness credibility (id. at p. 594; Napue v. Illinois, supra, 360 U.S. at p. 269; cf. Giglio v. United States (1972) 405 U.S. 150, 153-154.)" (People v. Morrison, supra, 34 Cal.4th at pp. 716-717.)
"When the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. This standard is functionally equivalent to the '"harmless beyond a reasonable doubt"' standard of Chapman v. California[, supra,] 386 U.S. 18." (People v. Dickey (2005) 35 Cal.4th 884, 909, citing In re Jackson, supra, 3 Cal.4th at pp. 597-598, disapproved on another ground by In re Sassounian, supra, 9 Cal.4th at pp. 544-545, fn. 6.)
C. Analysis
1. No Error
We find defendant's argument that the state relied on false or misleading evidence "to obtain a tainted conviction" unpersuasive (Napue v. Illinois, supra, 360 U.S. at p. 269) and, even if we assume error, there was no prejudice to defendant. Viewed through the lens of defense counsel's cross-examination, we infer that the day before Adolfo testified, he was in contact with the prosecutor and an investigator and, at that time, he asked for some form of remuneration. As evidenced by this line of cross-examination, the exchange was disclosed to the defense prior to Adolfo's testimony. While defense counsel was not successful in getting Adolfo to admit he specifically asked the prosecutor for money, he admitted asking the prosecutor to "help [him] out" because "he [did not] want to be on the streets."
During closing argument, defense counsel attacked the credibility of the three postshooting eyewitnesses upon whom the prosecutor was relying to tie defendant to the crime and, in relevant part, counsel stated, "What do we also know about [Adolfo]? During this timeframe, within a week's period, he received $820 from the police to help them locate [defendant], which he never assisted them in any way. That was withheld from us until I happened to ask him about it. Why? Because he was going back wanting more. When he's contacted by [the prosecutor], he's wanting more. He's looking for more cash. That's what he's about. About money." The prosecutor also thereafter addressed Adolfo's request for money during trial.
Although defendant frames the issue as one in which the prosecutor waited until the eleventh hour—rebuttal argument—to correct his witness's false testimony regarding a request for money, thereby depriving the defense of the opportunity to respond, this grossly mischaracterizes what occurred. The defense was apprised, prior to Adolfo's testimony, that Adolfo had asked the prosecutor for money, or its equivalent, and both defense counsel and the prosecutor treated the request as such during closing argument. While Adolfo refused to admit that he asked for money specifically, his admission that he asked for help to avoid being out on the street virtually compelled the jury to conclude that if Adolfo did not ask for money explicitly, he nevertheless asked for recompense in the form of lodging. Under these circumstances, defendant has not met his burden of showing that the prosecutor failed to correct false or misleading testimony. (People v. Morrison, supra, 34 Cal.4th at p. 718.)
2. No Prejudice
Although we need not address prejudice given our determination that defendant did not demonstrate a violation of his right to due process by the prosecutor, we also conclude that even assuming error, there is no reasonable likelihood that Adolfo's testimony on this point could have affected the jury's judgment. (People v. Dickey, supra, 35 Cal.4th at p. 909.) Notwithstanding defendant's characterization to the contrary, the witness most critical to the prosecution's case was Elaine. As previously discussed, Elaine testified not only to seeing defendant that night looking upset but to his inculpatory statements and to her retrieval and disposal of the gun, at his direction. Rick's and Adolfo's testimony and statements were corroborative of Elaine's testimony with respect to seeing defendant upset and with a gun, but Elaine's testimony was the linchpin in the prosecution's case. The importance of Elaine's testimony, and the extent to which she may have been influenced by pressure from law enforcement, was underscored by the jury's request during deliberation for readback of her testimony and that of the detective who interviewed her, and the jury's request, which was denied, for a transcript of her interview with the detective.
Furthermore, assuming Adolfo falsely testified that he asked the prosecutor more generally for help to avoid being on the streets rather than more specifically for money, this was but a minor point. The jury was under no illusion regarding Adolfo's credibility: he had a criminal record, including a conviction for elder abuse; he was a self-described "dope fiend" actively using drugs during the time of the crime; he was essentially homeless and "hustling" to survive; he managed to obtain $820 from the sheriff's department without providing any information in exchange; and if not for money, he approached the prosecutor the day before his testimony to ask for some consideration directed at staying off, or getting off, the street. While it was for the jury to find the facts, the jury could also have reasonably concluded that Adolfo was not entirely forthcoming in his recitation of the events that night. In particular, Rick's testimony that he did not know Elaine, no one named Elaine knocked on his door and defendant left the apartment with Adolfo that night is consistent with Elaine's testimony that Adolfo and defendant showed up at the house on the same lot as Rick's apartment as she was leaving. That Elaine found the gun under a chair in Rick's apartment as defendant described further undermines Adolfo's version of events that Elaine, who later testified she has a bad foot, left Rick's apartment with defendant and the gun and hopped a fence. Given the state of the evidence before the jury, even if Adolfo had specifically asked the prosecutor for money, the failure of the prosecutor to correct this testimony by attempting to pin Adolfo down on that fact was unquestionably harmless.
IV. Cumulative Error
Defendant also claims cumulative error. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Having rejected defendant's individual claims of error, with the exception of the instructional error relating to the date of the crime, his claim of cumulative error necessarily fails. (People v. Williams (2013) 56 Cal.4th 165, 201, disapproved on another ground by People v. Elizalde (2015) 61 Cal.4th 523, 538, fn. 9; People v. Sedillo, supra, at p. 1068.)
V. Senate Bill No. 620
Finally, at the time of defendant's sentencing in 2017, the trial court was required to impose the enhancement for personal use of a firearm under section 12022.53, subdivision (d). (§ 12022.53, former subd. (h).) However, effective January 1, 2018, section 12022.53 was amended to permit a trial court, in furtherance of justice, to strike or dismiss an enhancement otherwise required to be imposed under the statute. (Sen. Bill No. 620.)
The parties agree that the amendment to section 12022.53 applies retroactively in this case, but they do not agree whether remand for resentencing in light of Senate Bill No. 620 is required. The People argue against remand on the basis of futility given that the trial court found numerous aggravating factors and no mitigating factors, and it chose the upper three-year term in sentencing defendant for being a felon in possession of a firearm.
Although the record indicates the trial court was not sympathetic in this case, it remains that at the time defendant was sentenced, the court lacked the discretion to strike the firearm enhancement and unlike in the minority of cases declining to remand based on futility, the record here contains no express comments clearly indicating that even if the court had the discretion to strike the enhancement, it would not have done so. (People v. Jones (2019) 32 Cal.App.5th 267, 274 ["'This gives me obviously ... great satisfaction in imposing the very lengthy sentence here today.'"]; People v. McVey (2018) 24 Cal.App.5th 405, 419 ["'[T]his is as aggravated as personal use of a firearm gets,' and 'the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement.'"].) Indeed, the circumstances surrounding Jose's death remained largely unknown at trial and the jury found the premeditation allegation not true.
Defendant is entitled to be sentenced in the exercise of informed discretion and, therefore, we agree with him that remand is appropriate so that the trial court may exercise its discretion in the first instance in light of the amendment to section 12022.53. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; People v. Zamora (2019) 35 Cal.App.5th 200, 206-208; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-428.) We express no opinion on how the trial court should exercise its discretion on remand.
DISPOSITION
The matter is remanded to the trial court to exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620, and, if appropriate following exercise of that discretion, to resentence defendant accordingly. The judgment is otherwise affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DeSANTOS, J.