Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA182395 Bob S. Bowers, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Eleazar Botello De Santiago appeals from the judgment sentencing him to life in prison without the possibility of parole for the murder and robbery of Charlie Yim. De Santiago contends that the trial court erred when it refused to give a requested third party culpability instruction to the jury. We remand with directions to correct a few minor sentencing errors, but otherwise affirm the judgment.
FACTS
In a previous nonpublished opinion, People v. De Santiago (July 30, 2003, B153447), we reversed De Santiago’s initial conviction for first degree murder and second degree robbery due to the trial court’s exclusion of testimony by a proposed defense expert. We reversed codefendant Francisco Marin’s conviction on the same grounds. De Santiago now appeals from a second conviction by a different jury for the same crimes.
I. The Murder and Robbery
In 1997, Charlie Yim owned Village Liquor in the City of Carson, which also contained a check cashing business. On September 18, 1997, Yim left for the bank in the afternoon to deposit $20,000 in checks and withdraw $24,000 in $20 and $100 bills for his check cashing business. He put the money in a dark colored bag or briefcase. While Yim was gone, his employee noticed two young Hispanic men enter the store at 3:00 or 4:00 p.m. and “watch” the security cameras. Although the employee knew 99 percent of the store’s customers and had worked there for 10 years, he did not recognize these two men. Yim was shot in the store’s parking lot at approximately 5:00 p.m. and his bag with the money in it was taken. Yim died from two gunshot wounds. One witness observed two Hispanic men sitting in a car shortly before the shooting. Several others saw a red car speed off after Yim was shot. Two expended nine-millimeter Winchester luger casings were recovered from the crime scene. When they reviewed the videotapes from the store, the police did not see anything of significance. At this time, De Santiago and Marin were already considered suspects.
Maria Medina lived around the corner from Village Liquor and heard screeching tires near her home that day. When she looked out of the window, she saw two Hispanic men with short hair get out of a red car that was parked across the street. The men took off their shirts, revealing white T-shirts underneath. She heard the driver tell the passenger to “hurry up, hurry up.” The driver then removed a glove and threw it away. A small gray car came by shortly thereafter and picked up the two men. Medina observed the passenger carrying a small dark colored briefcase when he got into the second car. Medina later identified codefendant Marin’s picture from a photographic lineup.
II. The Police Investigation
The police discovered a red Honda parked near Medina’s home that had its rear license plate bent upward so that no one could read the license plate unless he or she were standing directly over it. Inside the car, the police found latex gloves, a black cloth glove, a white T-shirt and one Motorola two-way radio. The police also recovered a blue shirt near the house where the car was parked. Officers lifted 15 latent fingerprints from the exterior and five from the interior of the car. When the prints were run, matches came back for both De Santiago and Marin. DNA testing on the gloves showed that De Santiago could not be excluded as a contributor to the DNA found on one of the rubber gloves.
The police also transferred the scent from the white and blue shirts to a sterile gauze pad through a machine called a Scent Transfer Unit (STU), which is similar to a small vacuum cleaner. These scent pads were provided to police dogs trained to follow an individual by their unique scent. The dogs showed some interest in residences known to be visited or occupied by De Santiago and Marin. One dog indicated a scent match to his trainer when it sat down behind Marin while the police were interviewing him.
De Santiago and Marin were arrested on September 28, 1997, and were told they were under arrest for murder based on fingerprint evidence recovered on a Honda. Police provided no other details of the crime. Police then placed both De Santiago and Marin in the back of a patrol that was wired for sound. Police reviewed the recording wherein, Marin refers to a “robbery and murder of fucking store.” Both Marin and De Santiago refer to “rods, ” meaning guns. Marin later said he was accused of robbery and murder, even though the police never mentioned a robbery. During a valid search of De Santiago’s uncle’s home, the police recovered $2,700 in $100 bills. De Santiago’s uncle testified the money did not come from De Santiago. He testified that it came in part from cashing a vacation check from his work and in part from his mother. The police confiscated the money and by the time of trial, De Santiago’s uncle had yet to provide documentation that the money came from legitimate sources.
III. The Trial
At trial, the prosecution presented evidence of the circumstances surrounding Yim’s shooting and the subsequent police investigation as stated above. The defense presented a theory of third party culpability, seeking to establish that Pablo Hernandez may have committed the crime. Hernandez had been under police surveillance in connection with a series of liquor store robberies. De Santiago’s half sister, who was dating and living with Pablo Hernandez in September 1997, testified that Hernandez owned a red car. On January 14, 1998, police detectives followed Hernandez as he and another man drove a van to a liquor store in Carson. It appeared that they were trying to prevent anyone from following them. When they arrived, police observed Hernandez and the other man looking around and monitoring the area near the liquor store. Another Hispanic man pulled up in a gray car shortly thereafter and all three walked to the rear of the van while continuing to look around. The police arrested the three men, Pablo Hernandez, Leonel Mendoza and Juan Carlos. Motorola two-way radios were found inside the van and the gray car.
The defense also presented expert testimony from Van Ness Bogardus, a professor of law enforcement and a former Los Angeles County Sheriff. Bogardus offered expert opinions regarding the use of scent dogs to locate human beings. Bogardus participated in the sheriff department’s inaugural canine dog patrol program and received training and practical experience from 1980 to 1988 in working with dogs to detect the scent of human beings. Bogardus testified that it was not possible for a dog to be given an article that might contain the scent of a person and be able to match the scent with that person. A dog also would not be capable of sniffing a location to determine who may have been there. Indeed, he testified scents do not remain on substances such as concrete or grass for very long. As a result, Bogardus opined that the STU scent pad process was unreliable.
In rebuttal, the prosecution presented testimony from a retired Los Angeles County Sheriff who worked in the canine unit as a trainer and supervised Bogardus. He opined that dogs can locate a particular person when given a scent article. He also testified that dogs were capable of sniffing a location to determine whether someone had been there or not. Marin’s mother testified, on the other hand, that the scent dog sat down behind Marin only when its trainer stopped to speak to one of the detectives interviewing Marin. While it admitted the third party culpability evidence, the trial court refused to give a pinpoint instruction to the jury on the theory.
IV. The Verdict and Sentence
The jury found De Santiago guilty of first degree murder and second degree robbery. The jury further found true the additional allegations that a principal in the offense was armed with a firearm and the murder was committed during a robbery. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 12022, subd. (a)(1).) De Santiago was sentenced to life without the possibility of parole for the murder conviction plus one year for the firearm enhancement. The sentence on the robbery conviction was stayed. De Santiago timely appealed.
All further section references shall be to the Penal Code unless otherwise specified.
DISCUSSION
I. Third Party Culpability Instruction
At trial, De Santiago submitted the following proposed instruction on his third party culpability defense: “Defendant has introduced evidence to show that some other persons committed the charged offenses. The prosecution has the burden of establishing beyond a reasonable doubt that it was the defendant who committed the charged offense. [¶] If after consideration of all the evidence, you have a reasonable doubt that the defendant was the person who committed the charged offense, you must find the defendant not guilty.”
The trial court refused to give the instruction, reasoning that it was duplicative of other instructions and therefore unnecessary. De Santiago now argues that the trial court’s refusal to give his proposed pinpoint instruction on third party culpability was error which violated his constitutional rights. According to De Santiago, the third party culpability evidence included the following facts: (1) Hernandez owned a red car at or around the time of Yim’s murder; (2) the crime was committed in the parking lot, not in the store where the two Hispanic men appeared to be monitoring the store’s security cameras; (3) the police did not see anything of significance when they reviewed the videotapes from the store even though De Santiago and Marin were already suspects; and, (4) the police observed Pablo Hernandez and two other Hispanic men look around a Carson area liquor store and found Motorola two-way radios in a gray car and in a van.
“ ‘The applicable principles are clear. A criminal defendant may introduce evidence of third party culpability if such evidence raises a reasonable doubt as to his guilt, but the evidence must consist of direct or circumstantial evidence that links the third person to the crime. It is not enough that another person has the motive or opportunity to commit it.’ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 824 quoting People v. Robinson (2005) 37 Cal.4th 592, 625.) Further, a defendant, upon proper request, has a right to an instruction that pinpoints the defense theory of the case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142 .) To determine instructional error, we consider the instructions as a whole and assume that the jurors are intelligent and capable of understanding and correlating all jury instructions which are given. (People v. Romo (1975) 47 Cal.App.3d 976, 990.) There is no requirement that the jury be instructed in the precise language requested by a party. (People v. Partlow (1978) 84 Cal.App.3d 540, 558.)
We are persuaded by People v. Kegler (1987) 197 Cal.App.3d 72 (Kegler), which presents an analysis of this precise issue on similar facts. There, the defendant submitted a similar pinpoint instruction on third party culpability, which the trial court refused to give. (Id. at p. 79.) The defendant was convicted of the robbery of two men and the murder and robbery of a third man. (Id. at p. 77.) All of the eyewitnesses agreed that a man driving a gray Cadillac robbed the two men at 12:30 p.m. and murdered the third man nearby at approximately 1:30 p.m. The primary issue at trial was the identity of the person who murdered and robbed the third man. Most of the eyewitnesses expressed some uncertainty in identifying the defendant as the murderer. Their description of the suspect also fit that of the owner of a gray Cadillac, who testified he lent it to the defendant in exchange for cocaine. One of the witnesses initially identified the owner of the Cadillac as the murderer. Personal items from the victims were found in the Cadillac. (Id. at p. 78.) The defendant presented alibi evidence from his friend and his girlfriend that he was with them after 12:30 p.m. (Id. at p. 79.)
Relevant portions of the instruction read as follows: “The burden is on the State to prove beyond a reasonable doubt that the defendant is the person who committed the offense with which he is charged. In this regard, you are instructed that it is not necessary for the defendant to prove that another person may have committed the crime, nor is it the burden of the defendant to prove his innocence....” (Kegler, supra, 197 Cal.App.3d at p. 79, fn. 1.)
On appeal, the Kegler court affirmed the trial court’s ruling and found the “requested instruction was inapposite because appellant did not present sufficient evidence of third party culpability linking any particular third person to actual perpetration of the crime.” (Kegler, supra, 197 Cal.App.3d at p. 80.) The court further reasoned, “Although defense counsel argued to the jury that [the owner of the Cadillac] was the one who robbed and shot [the third man], the only evidence he referred to in this regard was that [the owner] and his clothing matched the physical descriptions given by witnesses to the murder and the wallet of the victim was found in his car. However, no evidence placed [the car’s owner] at the scene of the murder or in possession of his car, undisputably used in the commission of the murder, at the time of the offense. Moreover, as conceded by defense counsel in final argument, the eyewitnesses’ descriptions of the suspect fit defendant, [the owner of the Cadillac] and ‘probably 100, 000 people in Los Angeles.’ ” (Ibid.)
The court also concluded that the issue presented by the proposed pinpoint instruction was adequately explained to the jury in other instructions. “In the context of the facts of the instant case, any evidence of third party culpability, had it been presented, would have raised the same issue as involved in identification.” (Kegler, supra, 197 Cal.App.3d at p. 81.) As a result, instructions related to the burden of proof, reasonable doubt, alibi, identity based on eyewitnesses and factors to consider duplicated the issues presented in the proposed instruction. (Ibid.)
We agree with the trial court that the requested pinpoint instruction was unnecessary and duplicative. As in Kegler, De Santiago did not present sufficient evidence of third party culpability linking Pablo Hernandez to the actual perpetration of the crime. (Kegler, supra, 197 Cal.App.3d at p. 78; see also People v. Hall (1986) 41 Cal.3d 826, 833.) That Hernandez or the other two men with him may have been in the process of perpetrating a similar crime when under surveillance by the police does not link Hernandez to this particular crime. No evidence placed Hernandez or the other men at Village Liquor. Nor is it sufficient that Hernandez drove a red car at the time of Yim’s murder.
Indeed, De Santiago’s and Marin’s fingerprints were found in or on the red Honda. Evidence revealed that De Santiago could not be ruled out as a contributor to the DNA found in a glove in the red Honda. Moreover, Maria Medina identified Marin as one of the two men who parked the red car across from her home. De Santiago’s and Marin’s incriminating comments while in the patrol car further corroborate their participation in Yim’s robbery and murder, as do the results from the canine STU application.
We further conclude that the issue presented by the pinpoint instruction requested by De Santiago was adequately explained to the jury in other instructions. Here, like in Kegler, the court instructed the jury on the People’s burden of proof and the definition of reasonable doubt. The court also instructed the jury on factors to consider in proving identity by eyewitness testimony. We assume that the jurors understood and correlated all the instructions. Contrary to De Santiago’s assertion, these instructions were sufficient to instruct the jury on his defense: “that the prosecution bore the burden of proving beyond a reasonable doubt that it was appellant who committed the robbery and murder, not [Hernandez, Mendoza and Carlos].”
II. Sentencing Issues
The People and De Santiago also bring to our attention a few sentencing issues which warrant remand to revise the abstract of judgment. First, the trial court failed to include any conduct credit under former section 2933.1 and applied section 2933.2, which precludes any person convicted of murder from receiving conduct credit. Section 2933.2, however, became operative on June 3, 1998, and does not apply to a murder committed in 1997. (§ 2933.2, subd. (d).) As a result, De Santiago is entitled to presentence conduct credits at the rate of 15 percent of actual time served under the then-operative section 2933.1. His actual credits are listed as 2, 096, thereby entitling him 315 conduct credits.
Secondly, the trial court imposed a $70 court security fee pursuant to section 1465.8. Section 1465.8, however, provides for a $30 court security fee per conviction. As a result, the abstract of judgment should be amended to impose a $60 court security fee for De Santiago’s two convictions.
Third, the trial court imposed and suspended a $10,000 parole revocation fine under section 1202.45. Because the court sentenced De Santiago to life in prison without the possibility of parole, that fine should be stricken.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting 315 conduct credits based upon 2, 096 actual credits, a $60 court security fee and striking the $10,000 parole revocation fine. The revised judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J.FLIER, J.