Opinion
B225976
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS UITZ, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA057386)
APPEAL from a judgment of the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed as modified.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Juan Carlos Uitz of three counts of special circumstance, first degree murder. Defendant makes four main contentions on appeal: first, the trial court prejudicially erred by admitting his statement that " 'he's murdered' " and " 'has been murdered' "; second, the trial court prejudicially erred by admitting a drawing found in his home; third, the prosecutor committed misconduct during closing argument; and, fourth, the trial court failed to instruct the jury that an aider and abettor must have intent to kill to find true a multiple-murder special circumstance allegation. We reject these contentions but modify the judgment to correct undisputed sentencing errors, and we affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The murders of Shen Chung Lee and Rick Lee.
In 1996, William Lee (William) lived in Rosemead with his mother, Shen Chung Lee (Shen); father, Wen Tou Lee (Wen Tou); and brother, Rick (Tse Hui) Lee (Rick). Wen Tou worked out of his home repairing televisions and electronic devices, and William sometimes helped him. William, however, was addicted to cocaine, and he did drugs with Henry Jamarillo, also known as "Froggie," a Lomas gang member.
We refer to the family members by their first names to avoid confusion.
Jamarillo introduced William to Uitz, who sold drugs to William. Uitz, whose moniker was "Bugsy," was also a Lomas gang member. Once, Uitz showed a gun to Jamarillo; it looked like a .357 revolver, gray and black with a long barrel. Lomas gang members hung out at an area called "the Curb" or "the Curve" and at "Devil's Alley," which was near the home of Alfonso Miramontes, a Lomas gang member known as Diablo. Deputy Sheriff John Robert Stilgenbauer would see Anthony Solorio, a Lomas gang member known as "Goofy," wearing a dark trench coat, even in daytime and in the summer. Stilgenbauer saw other Lomas members wearing trench coats.
Sometimes, instead of buying drugs with cash, William gave "collateral"; for example, between August and October 1997, William gave Uitz a fake ring to get $40 worth of cocaine. Although William promised to pay him back, he didn't. Uitz beat up William and took his watch. Uitz and another man later went to William's house in a red Toyota Paseo and asked him to come outside and give him $70, but William didn't give it to him. They came to the house a second time looking for something, but they left, although they threatened to do something to William if he didn't pay. A third time they came inside the house and took three cable boxes and a tool box and pulled a knife on William. William went to Taiwan for drug rehabilitation in February 1997, and he didn't return until 1998.
At this trial, William identified Uitz in court as the man he gave the fake ring to, but at a prior trial in 2009 he was unable to identify Uitz. He identified Javier Renteria as the ring guy.
While William was in Taiwan, on December 29, 1997, a few minutes after 8:00 p.m., Wen Tou was at home with Shen and Rick. Wen Tou was in the bedroom when he heard his wife scream. Two men, tall and big and wearing black suits with trench coats and ties to cover their faces, were in the living room. Both had guns. One man told Shen to lie down, and he searched the house and emptied Shen's purse. He made Rick lie on the ground in the living room. The other man said something to Wen Tou in English, who didn't understand what was said to him. The man hit Wen Tou on the head with a gun, causing Wen Tou to fall. The two men talked, and Wen Tou heard them say, "one, two, three," and then Shen and Rick were shot, one time each, in the head. The men left. During these events, the ties came down, and Wen Tou was able to see their faces.
Wen Tou did not testify at trial. He had a stroke about one month after the murders and went to live in a nursing home. His preliminary hearing testimony was read to the jury. At the preliminary hearing, he did not recognize Uitz.
There were discrepancies about where Wen Tou was in the house when the intruders entered. It was also unclear if Wen Tou was wearing clothes.
The Lees' next door neighbor, Fabian Rios, heard two gunshots. Looking outside, he saw two male Hispanics wearing long black coats, approximately knee-length. They appeared to be concealing something, and they ran to a red four-door Ford, possibly a hatchback, driven by a third person. One man got into the back seat and the other into the front passenger seat.
Los Angeles County Deputy Sheriff Joshua Thai arrived at the Lee house after receiving a call at 8:30 p.m. Thai spoke some Mandarin, which is what Wen Tou spoke. Wen Tou told him that "two Mexicans" with "long guns" robbed him and killed his wife and son. Later that night, Deputy Sheriff Stilgenbauer interviewed Wen Tou. Wen Tou repeated that two male Hispanics entered the house through the unlocked front door and demanded money. They were in their early 20's and were a few inches short of six feet, and they wore black knee-length trench coats, black pants, and black, lace-up military boots. They had short pulled back hair, and one had a receding hairline. They looked like brothers or "twins." They had covered their mouths with something, possibly a black scarf or a neck tie. Both had pierced left ears. Wen Tou described the guns as short barreled rifles. Wen Tou said that each suspect shot one victim. He did not say anything about other intruders, either inside or outside the house.
When Wen Tou was later shown photographic six packs on January 11, 1998, he said Uitz looked "very much like" one of the assailants. He said the eyes and eyebrows were similar but his hairline wasn't receding enough.
Wen Tou initialed two photographs in the six-pack photo array, Uitz's and another man's.
About one month after the murders, Wen Tou was at a courthouse where he saw the killer in line. Wen Tou followed the man, who got into a red car. Officers investigated this incident, trying to determine if Uitz had been at the courthouse that day, but they did not find anything.
B. The murder of Linda Hesse.
The same evening that Shen and Rick were murdered, December 29, 1997, Joyce Pang-Pfrimmer and Tim Pfrimmer were at home between 8:00 p.m. and 9:00 p.m. Linda Hesse lived next door. On the night of December 29, Hesse went to a nearby Mervyn's sometime after 8:00 p.m. Shortly before 9:00 p.m., the Pfrimmers heard something that sounded like gunfire. Mona Gonzales, who also lived near Hesse, heard a car horn, a pop, and then the horn again. Joyce went outside and saw Hesse's car slowly coasting, coming to a halt on the sidewalk. Hesse, with her seatbelt still on, was slumped over the steering wheel with her left leg out of the car. The car was on and it was in drive. Hesse was dead, having been shot in the head through the front windshield. A Mervyn's receipt found in the car was time-stamped 8:41 p.m.
C. Investigation into the Lee and Hesse murders.
On January 28, 1998, officers searched Uitz's home, which was about 700 square feet. In a room that was apparently being used as a bedroom was a box with the name "John" or "Johnny" on it. Underneath a bed, officers found a drawing of a Bugs Bunny, a devil, and a man with blood seeping from a wound in his head. Officers did not find guns, trench coats or lace-up boots. They did find .22 caliber ammunition. Uitz, who had a mustache that day and was almost bald, was arrested but later released.
Twenty-two caliber ammunition cannot be fired from a .357.
At this time, the police had only Wen Tou's identification and John Louallen's statement, discussed infra.
The Lee and Hesse murders remained unconnected until 2001, when it was determined that all three bullet fragments from those crimes were fired from the same gun. A projectile had been recovered within a foot of Shen's head and a bullet was recovered from Rick's head. The bullets or bullet fragments from the three murders were of a type that could be loaded into a .38 special or a .357 magnum, which is the more powerful gun. No evidence was found at the Lees' home that a shotgun had been used, and a shotgun or rifle could not have fired the bullets; normally, a revolver would have fired them.
In 2002, Detective Boyd Zumwalt with the Los Angeles County Sheriff's Department was assigned to investigate Hesse's murder. In the course of that investigation, on April 10, 2002, Wen Tou looked at a photo array and identified Uitz as the shooter, saying that his eyes and eyebrows were similar to those of the man who killed his wife and son. He also identified Javier Renteria as the person who hit him with a gun. This was the first time Wen Tou had been shown a photograph of Renteria and that anyone had identified Renteria. Although shown other photo arrays with pictures of other Lomas gang members, including Miramontes/Diablo, Wen Tou never identified anyone else.
Detective Zumwalt first showed Wen Tou a photo array in February 2002, and he identified a person who was not defendant.
Fingerprints were recovered from the Lee's home, but none matched any suspect, including Renteria, Uitz or Solorio. Black nylon strips were found at Miramontes's house.
1. Javier Renteria's testimony.
Detective Zumwalt interviewed Javier Renteria ("Giggler") in 2004 for the first time. Renteria and Uitz had known each other since junior high school, and they were in the Lomas gang together. In December 1997, Renteria would borrow his brother-in-law's burgundy or red, four-door Geo Prism. On December 29, 1997, Renteria drove to Rosemead to sell drugs, but he also drank beer and smoked marijuana and rock cocaine with Uitz. Uitz said he knew a place where there was a safe and some "Chinos." In the Geo Prism, Renteria and Uitz picked up Solorio ("Goofy"), who drove. Renteria had a shotgun and Uitz had a handgun. During the drive, they didn't discuss what they were going to do.
At the Lees' house, Renteria followed Uitz through the unlocked front door, and Uitz ordered the people to get down. Wen Tou was in the living room and Shen was in the kitchen. Uitz dragged Rick out of his room into the living room. Uitz went through the rooms looking for a safe. Because Wen Tou was trying to look around, Renteria hit his head with the shotgun. When Uitz came back, he shot Rick and then Shen in the heads. Renteria and Uitz ran to the car. Renteria got into the back and Uitz got into the front passenger seat. Uitz asked Renteria if he had shot Wen Tou, and Renteria said he hadn't.
Uitz told Solorio to drive to the 60 Freeway. They were driving down a residential street, and Uitz saw a woman walking towards a car. They decided to rob her. Uitz told Solorio to stop the car, and Uitz and Renteria got out, Uitz with his handgun and Renteria with his shotgun. Uitz and Renteria walked towards the woman, who was now in her car, and Uitz shot her in the head through the front windshield. They immediately left, without searching the woman's car or taking anything.
2. The testimony of other gang members and witnesses.
John "Pecas" Louallen, a Lomas gang member, went to see defendant on New Years in 1997 about getting a gun. Uitz said that the only gun he had was one that had been used in an Asian home invasion with an older couple. Uitz said the gun was a .357 caliber and that it had been "buried," meaning he got rid of it.
Louallen had multiple felony convictions, including a 2009 conviction for drug possession.
Between May and October 1998, Lisa Garivay was in a car with Joe Garivay (Capone), a Lomas gang member, and Renteria. Renteria said that he and Uitz had robbed Chinos or Oriental people. He said that the " 'stupid "f[ucking]" Chino didn't want to give up the money,' " so they shot them, a son and a mom. They got $50. They did the home invasion because the family had money and owned a store.
Garivay first told this story to sheriffs in 2000. Her husband, Capone, was charged with the murder of a fellow Lomas gang member, Donald Schubert.
In 1998, Daniel Ahumada ("Danger") was a member of the Lomas gang. He hung around with fellow gang members, including Uitz, Renteria, Solorio, and Miramontes. Sometime after February 2, 1998, Ahumada ran into Uitz, who said he had been lucky because he was able to throw away a "hot gun" just before being arrested. Uitz said it was a gun he used in a home invasion to kill some "Chinos." He said he was with Diablo—Miramontes.
Ahumada has been in custody since 1999 for the second degree murder of Donald Schubert. Ahumada called to Schubert to come out of his house, thinking that his accomplices were just going to ask Schubert to repay money. Instead, Schubert was immediately shot. While Ahumada was in custody, he told police officers about the conversation he had with Uitz.
Rios, the Lee's neighbor, identified Renteria's brother-in-law's red Geo Prism as the car he saw the men getting into the night the Lees were murdered.
In 2004, Renteria and Uitz were charged with the Lee and Hesse murders. When he was arrested, Uitz said "he's murdered people and that he himself has been murdered, too."
Renteria entered into a plea agreement under which, in connection with the Lee murders, he pleaded guilty or no contest to residential robbery and to personal use of a firearm and was sentenced to nine years in prison, concurrent to a seven- and one-half-year sentence he was already serving for attempted carjacking with a firearm. For his testimony, Renteria was granted various immunities for the murder of Donald Schubert and for the 1996 murder of a man called Buzzard.
At the time of trial, no arrest had been made in connection with Buzzard's murder. According to Ahumada, he helped dispose of Buzzard's body.
D. Defense case.
Solorio, who Renteria said was the driver during the events of December 29, 1997, testified that he did not drive Uitz and Renteria that night.
II. Procedural background.
Uitz was charged with the Lee and Hesse murders in 2004. In 2009, a jury deadlocked on all three counts of murder, and a mistrial was declared. On March 30, 2010, a second jury found him guilty of three counts of first degree murder (Pen. Code, § 187, subd. (a)). As to all three counts, the jury found true personal gun-use allegations (former § 12022.5, subd. (a)(1)). As to the Lee murders, the jury found true special circumstance allegations; namely, the murders were committed during the commission of a felony murder, robbery and/or burglary (§ 190.2, subd. (a)(17)). The jury also found true a multiple-murder special circumstance allegation that Uitz was convicted in the same proceeding of first or second degree murder (§ 190.2, subd. (a)(3)).
All undesignated statutory references are to the Penal Code.
On May 27, 2010, the trial court sentenced Uitz to three terms of life without the possibility of parole plus three 10-year terms under section 12022.5.
DISCUSSION
III. Admissibility of defendant's statement that "he's murdered people and he himself has been murdered, too."
Over defense counsel's objection, Detective Zumwalt testified that on May 15, 2004, Uitz was arrested. He had this conversation with Uitz:
"Q Did the defendant ask you what he was being arrested for?
"A Yes.
"Q So what came first, him asking you what he was being arrested for; or you introducing yourself; or you telling about why you were there? [¶] . . . [¶]
"A We introduced ourselves. He asked what he is being charged with. And we told him he's being charged with the murder of two Chinese people during a home invasion in 1997.
"Q Right after you told him that, did he say anything?
"A Yes, he did.
"Q What did he say?
"A He said that he's murdered people and that he himself has been murdered, too." (Italics added.)
The statement apparently was not admitted at the first trial.
Uitz contends that the trial court prejudicially erred by admitting this statement because it was "nonsensical"; hence it was irrelevant and excludable under Evidence Code section 352. The statement, however, was admissible.
The People argue that the issue has not been preserved for appeal. The statement was admitted after an Evidence Code section 402 hearing at which defense counsel objected "because of the probable likelihood jurors are going to speculate, what does that mean?" The People argue that this was insufficient to preserve an objection under Evidence Code section 352, as well as an objection on federal due process grounds. We will assume without deciding that the objections were preserved and proceed directly to whether admission of the statement was error.
A trial court's decision to admit evidence is reviewed under the abuse of discretion standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved by People v. Doolin (2009) 45 Cal.4th 390.) "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . ." (Evid. Code, § 1220.) Regardless of whether a statement can be described as an admission, the hearsay rule does not require its exclusion when it is offered against a party declarant. (Guerra, at p. 1123, citing People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)
In Guerra, the defendant, who was on trial for special circumstance murder, said to a bailiff, " 'In my country, I do this, no problem, I go home tonight.' " (People v. Guerra, supra, 37 Cal.4th at p. 1122.) Guerra rejected the defendant's claim that " 'I do this' " was ambiguous and rendered the statement inadmissible. Rather, any ambiguity went to the weight of the evidence and not its admissibility. Similarly, although Uitz argues that his statement was so ambiguous as to render it nonsensical or unintelligible, it was not. In fact, at least the first part of the statement was quite clear: Uitz had murdered people. Uitz's statement that "he had murdered people and he too had been murdered" could be viewed as a statement about the Lee and Hesse murders or the jury could have viewed it as some philosophical comment on life. Any ambiguity did not render the statement inadmissible. Rather, it concerned only the weight of this evidence, not its admissibility, which does not require complete unambiguity. (Id. at p. 1122.)
Uitz, however, also contends that because the prosecutor said the statement wasn't a confession, the statement was therefore impermissible character evidence under Evidence Code section 1101. Uitz bases this contention on these remarks by the prosecutor during closing argument: "Okay. The statement of the defendant murdered and had been murdered. At no time did I refer to that as a confession to the murders in this case. It is an admission by the defendant. It is a statement that you may consider against all the other evidence in this case. [¶] And I'll just repeat it again, is that the statement of an innocent person? Is that a statement of a person who has nothing to do with this case? Or is it the statement of someone, as Investigator Zumwalt put it, who is cocky? [¶] After all, ladies and gentleman, at that point it's been over six and a half years, come and get me. Right. Another statement that you can consider, 'I have murdered people and I have been murdered.' " (Italics added.)
First, the prosecutor's argument is not clear. But it appears he was merely making a distinction between a confession and an admission; namely, an admission is not always a confession to the crime charged. The prosecutor thus said he had not referred to the statement as a confession; but he clearly was not ruling out that it was an admission because he asked, "Is that [the] statement of a person who has nothing to do with this case?" In any event, the prosecutor argued that the statement was against Uitz's interest, because it could be interpreted as an admission of involvement in the Lee and Hesse murders.
Second, this evidence was not improper character evidence. A similar argument was made in People v. Medina (1995) 11 Cal.4th 694. There, after the defendant was arrested, he asked an officer, " 'What do you want me to say?' " (Id. at p. 751.) When the officer replied he wanted the truth, the defendant said, " 'If I could only cry, but I can't cry. I couldn't even cry when my mother died.' " (Ibid.) Although the statement was ambiguous, "the jury conceivably could have concluded that the statement reflected defendant's acknowledgment of his guilt and inability to feel remorse for what he had done." (Id. at p. 752.) Thus, the statement was admissible and it was up to the jury to decide what weight to give it. (Ibid.) Here, too, it was up to the jury to decide what weight to give Uitz's statement.
Finally, we disagree that admission of the statement violated Uitz's federal due process rights. The probative value of the evidence was not substantially outweighed by the probability its admission would create a substantial danger of undue prejudice, and therefore its admission did not render the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70.) As we have explained, the challenged evidence was properly admitted on relevant, nonprejudicial grounds. (People v. Falsetta (1999) 21 Cal.4th 903, 913.)
IV. The admissibility of the drawing found in Uitz's home.
A drawing found in Uitz's home depicting a devil, Bugs Bunny, a man with blood pouring from his head, and possibly a gun was admitted at trial. Uitz contends that its admission was prejudicial error. We agree that that the drawing was inadmissible, but that its admission was harmless error.
The drawing apparently was not admitted at the first trial.
A. Additional facts.
Before trial, the prosecutor moved to admit the drawing found in Uitz's home in January 1998, just one month after the murders. The defense objected: "[This] causes me concern about what relevancy there may be and any connection it may have with respect to my client, other than the fact that it was recovered within his home as a result of a parole search."
The trial court found that it was relevant: "Okay[,] [i]t appears to me to be extremely relevant if, in fact, the connection is made between the defendant and this drawing. And I think there is a connection, obviously, because of what is depicted in the drawing. [¶] It appears to be an admission on the part of the defendant given the content of the drawing, that he is with Lomas, that he is Bugsy; and that he has shot an Asian gentleman, it seems, in the head; and there is blood coming out of the head. [¶] That's how I view the photo. If I knew nothing about this case other than the alleged gang affiliation and his alleged moniker; and then the facts, it's pretty good. Pretty close. So if, in fact, the jury finds he did it, that is drew this drawing, Exhibit 'A,' it would carry weight, I believe, as an admission on the part of the defendant. [¶] But I think the issue is one of weight not admissibility. It's clearly, in my opinion, relevant and admissible. But weight is certainly something that the jury can consider. And if they find that the defendant did not draw it, you know, they may find that somebody drew it for him. [¶] But if it's in his possession and it depicts something so close to what happened in the Lee murders, it's pretty powerful evidence that the people have. I'm surprised I didn't see this before."
Defense counsel objected to the suggestion that the drawing could go to defendant's state of mind: "The suggestion is that the drawing is an artistic rendering of the defendant's state of mind during the months preceding and succeeding the homicides. While I understand the court's ruling that it is a weight and not an admissibility issue, perhaps—I don't know if we can do that now or if we have to wait until it's introduced— but limit it to exactly what it is. And that would be a drawing recovered on a certain date at a certain location. I believe it would be improper to opine that it was a state of mind rendition of the defendant in the months before and after."
The court responded: "Right. I don't think anyone can testify to that. And maybe I'm off the mark here. I assumed the People were offering it as an admission. Are you offering it to show state of mind? You know, it doesn't matter to me because, in my opinion, it is relevant on all those issues. [¶] But maybe I misstated what the People's offer is. Because I view it as if the defendant drew it and it was done before or after, it's an admission on his part. This is a writing. This is a statement by the defendant. His moniker[,] his gang—according to the People's evidence, the alleged moniker and alleged gang affiliation puts him in this drawing if, in fact, he did the drawing. [¶] And I would look at it as an admission. But if the People are offering it to show state of mind; intent; whatever, I mean I still think it's relevant. The questions of how much weight to give it is obviously going to be something for the jury to consider." The court concluded that the drawing would be admissible assuming a foundation was laid. Defense counsel objected on that ground too.
The drawing was thereafter admitted and Detective Zumwalt was asked to assume that part of the drawing was of a gun. To Zumwalt, it appeared to be the muzzle of a revolver.
During closing argument, the prosecutor said, "Here is that drawing again. When is this drawing recovered? January 28, 1998, from defendant's home . . . . Bugs Bunny with a 'Y' revolver, Lomas tattooed, and a dead man. You decide whether that's a Latino man, an Asian man or something else. What is most important, I submit to you, is this is a window into the defendant's state of mind around the time of these three murders."
"The drawing, ladies and gentleman, I submit is very important. It's not a devil coming out a bottle. It is a devil-like figure coming out of a barrel of a revolver. The revolver which is the gun used to kill the three victims in this case. [¶] The man charged with committing those murders is a gang member named Bugsy. You have a Bugs Bunny cartoon figure with Lomas on his arm. You have a had [sic] dead man lying on his back, to the right of the gun, blood gushing from a hole in his head. [¶] If that's irrelevant, that's your call, . . . I submit to you what better window into the mind [of] defendant around the time of these murders than that cartoon rendering that he keeps. [¶] Because this is what they glorify, . . . This is what means something to them. The gang; the tattoo; the respect; the violent crime; the fear in the community; the [camaraderie]."
B. Admission of the drawing was not prejudicial error.
Uitz contends that the drawing was inadmissible hearsay and was irrelevant and excludable under Evidence Code section 352. We agree that it was inadmissible but disagree that its admission was prejudicial.
People v. Lewis (2008) 43 Cal.4th 415 (Lewis) is instructive. In Lewis, the defendant was on trial for committing robberies and murders, some with a sawed-off shotgun. Drawings found in an apartment the defendant shared with codefendants depicted a cartoon caricature of a cat with money bags, a sawed-off shotgun, the name Bopete (defendant's moniker), the initials WSF (in reference to a gang), the number 211 (the Penal Code section for robbery), and other items. (Id. at pp. 432, 496.) The drawings were hearsay because they were offered for the truth of the assertion that defendant committed robberies with a sawed-off shotgun; hence, the court found that the drawings were inadmissible unless they fell within an exception to the hearsay rule. (Id. at p. 498.)
They were not, however, admissible as an admission by the defendant. (Lewis, supra, 43 Cal.4th at p. 498; Evid. Code, § 1220.) Notwithstanding that defendant's gang moniker was on the drawings and that they were in his apartment, the court concluded that this was insufficient evidence defendant drew them, especially given the prosecutor's theory that a codefendant drew them. Nor were the drawings admissible as adoptive admissions under Evidence Code section 1221. (Lewis, at p. 498.) There was no evidence that the defendant, by words or conduct, manifested or adopted a belief in their truth, and his "mere possession" of the drawings was insufficient to establish their admissibility as an adoptive admission. "Without such evidence of words or conduct, there was no way for the jury to determine whether the drawings simply represented the artist's fantasy, or whether they were an assertion of fact. As such, the drawings were hearsay and were inadmissible against defendant." (Id. at p. 499.)
Although this case is closer, here too there was insufficient evidence that Uitz drew People's Exhibit 108. Indeed, the trial court made no clear finding that Uitz was the artist, instead saying that the jury could make that determination. But who drew the picture was a foundational matter, and if Uitz was not the artist, it wasn't an admission. The drawing had a Bugs Bunny on it, and Uitz's moniker was "Bugsy"; but the drawings in Lewis had the defendant's moniker, Bopete, on them, and that was insufficient to establish that the defendant drew the pictures. (Lewis, supra, 43 Cal.4th at p. 498; cf. People v. Zepeda (2008) 167 Cal.App.4th 25, 32 [rap lyrics written by the defendant were probative to his state of mind, criminal intent, and gang membership].) Also, the drawing was in Uitz's home, but there was no evidence he lived there alone. Rather, there were two structures at the location where defendant lived, and he apparently lived in the rear structure. When the search warrant was served in January 1998, Uitz's mother, another woman and her husband, and two children were either at the front or rear structure. There were at least two beds in the residence. Next to a bed was a box with Uitz's first name on it. The drawing was found next to a "poor boy" folder, which was underneath the bed. It is not clear that it was the bed where defendant slept. But even if Uitz lived in the residence by himself and it was under his bed, that would not be dispositive on the issue whether he was the artist. It was just as likely that another gang member drew it and gave it to Uitz as it was that Uitz drew it. The drawing therefore did not fall under the party-admission exception to the hearsay rule.
For the same reason, the drawing was not admissible under the "state of mind" exception to the hearsay rule. "Subject to Section 1252, evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: [¶] (a) The declarant is unavailable as a witness; and [¶] (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation." (Evid. Code, § 1251.) Evidence of such a statement is inadmissible if it was made under circumstances indicating its lack of trustworthiness. (Evid. Code, § 1252.) As we have explained, there was insufficient evidence that Uitz was the "declarant." Moreover, there was no evidence establishing when the drawing was done—years before the Lee and Hesse murders or within the days following.
Nor does anything in the drawing reveal Uitz's state of mind about the Lee and Hesse murders. The drawing itself was ambiguous as to whether it even depicted the crimes at issue. The dead man in the drawing, although described as Asian, could just as easily be Latino or Caucasian. The dead man also had a mustache, and there was no evidence that any of the victims, including Wen Tou, had a mustache. There was only one male victim in the drawing, not two or three, and no female victims. And, if the devil in the drawing referred to Diablo (Miramontes), then, according to Renteria, Diablo was not involved in the Lee and Hesse murders. Nothing in the drawing thus clearly linked it to the Lee or Hesse murders.
The next theory the People offer for admissibility is it was circumstantial evidence of Uitz's gang membership in Lomas. Evidence, however, may be excludable if its probative value was substantially outweighed by the probability its admission would cause undue prejudice. (Evid. Code, § 352.) Here, there was no gang special circumstance or enhancement allegation, and the drawing was, at most, merely marginally relevant to any issue concerning Uitz's gang membership, which was undisputed. Moreover, given that the prosecutor primarily argued, both at the Evidence Code section 402 hearing and before the jury, that the drawing was Uitz's admission about the Lee and Hesse murders—a purpose for which the drawing was inadmissible— we conclude that its low probative value on any gang issue was substantially outweighed by the probability its admission would cause undue prejudice. (See People v. Archer (2000) 82 Cal.App.4th 1380, 1393-1394 [materials in the defendant's home about fighting with knives went merely to his interest in weapons and how to use them, an interest having "little or no probative value" and raising the possibility that the jury would improperly infer that he had a propensity to act in accordance with his interests].)
The People argue that Uitz forfeited raising an issue under Evidence Code section 352 because his defense counsel did not specifically argue that the evidence was excludable under that section. The prosecutor, however, filed a motion in limine to admit, among other things, the drawing. The prosecutor argued that Evidence Code section 352 did not prohibit admission of the drawing. Where the proponent of the evidence puts an issue on the table by virtue of a pretrial motion, the evidentiary issue is not forfeited on appeal, even if the appellant is not the one who first raised it. (People v. Brenn (2007) 152 Cal.App.4th 166, 174.)
Nonetheless, we find no reasonable probability that the outcome would have been more favorable to Uitz absent the error in admitting the drawing. (People v. Watson (1956) 46 Cal.2d 818, 836; Lewis, supra, 43 Cal.4th at pp. 499-500.) A "reasonable probability" means " 'merely a reasonable chance, more than an abstract possibility.' [Citation.]" (People v. Racy (2007) 148 Cal.App.4th 1327, 1335.) As we have said, the drawing was of marginal, if any, relevance or probative value. It was not clear Uitz drew it—the evidence was only that it was found in his home. It was not clear when it was drawn—before or after the Lees and Hesse were murdered. And it did not depict the crimes at issue—the victim in the drawing bore not even a superficial resemblance to any victim in this case. Thus, in terms of its probative value, we see little: it was another piece of violent graffiti-like art commonly associated with gangs.
And when considered against the other evidence, we cannot say there was a reasonable probability the outcome would have been different. True, the first jury, which apparently did not see the drawing, deadlocked 11-to-1 in favor of guilt on counts 1 and 2 (the Lee murders) and 9-to-3 on count 3 (the Hesse murder). But whatever motivated the holdout juror on counts 1 and 2 and those on count 3, given the marginal relevance and low probative value of the drawing, it is unlikely its admission in the second trial would have motivated the jury to convict Uitz on that basis.
Rather, this case hinged on the believability of Renteria, an unsavory character who, by his own admission, participated to some extent in five murders, including the Lee and Hesse murders. Still, Renteria gave details of the crime that other witnesses corroborated. Renteria said only he and Uitz went into the Lee house; Rios, the Lees' neighbor, saw two Hispanic men running from the house, and Wen Tou said there were two Hispanic men in the house that night. Renteria said they drove his brother-in-law's red car; Rios saw the two men get into a red car, and he later identified Renteria's brother-in-law's car as the one he saw that night. Renteria's brother-in-law confirmed that Renteria sometimes borrowed his car in 1997. Renteria said that Solorio stayed in the car as the getaway driver; Rios saw a man sitting in the driver's seat of the red car. Renteria said he had a shotgun and Uitz had a revolver; Wen Tou said the men had a long guns and ballistics evidence showed that the same gun was used to kill Shen and Rick and Hesse, most likely a .357 revolver.
True, Wen Tou said that both men had long guns, but to the extent he meant that both intruders had shotguns or rifles, the ballistics evidence did not support that conclusion.
Renteria was corroborated by other witnesses, albeit with disreputable pasts. Louallen testified that on New Year's 1997, just days after the Lees and Hesse were killed, he asked Uitz to give him a gun, but Uitz said the only gun, a .357, he had was hot, that it had been used in a home invasion of some Asian people. Garivay, who associated with Lomas gang members and whose husband was in jail for murder at the time of trial, testified that she was driving Renteria somewhere in 1998 when Renteria said he, Uitz, and Miramontes had robbed and shot some "Chinos," a mother and son. Ahumada, also a Lomas gang member in jail for murder at the time of trial, repeated a conversation he had with Uitz about a month after the murders: Uitz had tossed a gun used to kill some Asians under a car just before police detained him.
True, there was a discrepancy between Renteria's version and Garivay's testimony about what she overheard. According to Garivay, Renteria said that he was there with Uitz and Miramontes (Diablo). At trial, however, Renteria said that he was there with Uitz and Solorio (Goofy), who testified for the defense that he was not there. This discrepancy, however, was as to whom the third participant was—Miramontes or Solorio. There was no dispute between any version of events as to Uitz's presence.
Uitz details other problems with the witnesses' credibility and discrepancies, but witness credibility was for the jury to decide. The jury had before it not only Renteria's, Louallen's, Garivay's, and Ahumada's testimony, but also well-done and vigorous cross-examination of their criminal pasts and the incentives some of them may have had to testify against Uitz. Despite all this, the jury clearly believed that Uitz was there that night.
Moreover, the jury had Wen Tou's identifications. They were not unassailable, but the fact remains he only ever identified Uitz and Renteria. In January 1998, less than one month after the murders, Wen Tou was shown several six pack photographic arrays. He pointed out Uitz's photograph, saying he looked "very similar" to one of the men in his home and that Uitz's eyes and eyebrows were similar. When he was shown more photographic lineups in 2002, he again pointed out Uitz's picture, saying that his eyes and eyebrows were familiar and he looked like the man who killed his wife and son. Finally, in April 2002, Wen Tou was shown, for the first time, a six-pack containing Renteria's photograph. Wen Tou said Renteria was present when his wife and son were murdered.
Finally, notwithstanding our conclusion that the drawing should have been precluded, its admission did not, for the same reasons as we have said above, deprive defendant of his federal constitutional due process rights. Rarely do violations of state evidentiary rules rise to the level of a violation of federal due process rights. (People v. Benavides (2005) 35 Cal.4th 69, 91.)
V. Prosecutorial misconduct.
Next, Uitz contends that the prosecutor engaged in misconduct by implying during closing argument that the gun in the same drawing was "pointed at the jurors."
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (Ibid.; see also People v. Thompson (2010) 49 Cal.4th 79, 126.) Misconduct that infringes upon a defendant's constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury's verdict. (Chapman v. California (1967) 386 U.S. 18.) A violation of state law only is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward comment. (People v. Watson, supra, 46 Cal.2d 818.) In either case, only misconduct that prejudices a defendant requires reversal (People v. Fields (1983) 35 Cal.3d 329, 363), and a timely admonition from the court generally cures any harm (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375).
Here, during closing argument, the prosecutor made these comments about the drawing found in Uitz's home, "Now, ladies and gentleman, I submit to you that this drawing gives us a glimpse, it gives us an idea of those last moments of Linda Hesse's life on December 29, 1997, an artistic rendering, so to speak. [¶] In this drawing we see a Lomas gang member. We see Bugsy, albeit in the form of Bugs Bunny[,] [r]ight. We see that on the left side of this drawing. And if you look closely you can see L-O-M-A on what is the arm of this gang member. [¶] And you not only see this Lomas gang member, but what . . . else? There is something pointed at every single one of you at this time. Through the testimony of Deputy Ed Anderson and through the testimony of Boyd Zumwalt we've learned about guns in this case[,] [r]ight. [¶] And it's through the testimony of these deputy sheriffs that we now know that we are looking at the front of a revolver in this drawing, which is the contents of People's 108. [¶] How do we know it is a revolver? We know it is a revolver because a revolver not only has a circular barrel at the front of it, but it has this sight at the top, which is depicted in this drawing. . . . [¶] And when we go back to the diagram that's People's 108, what we see is this gang member is pointing that revolver with a triangular sight at the top right at you. Just as it was pointed at Linda Hesse on December 29, 1997. You also see in this drawing on the right side what looks like the head and upper torso of a man who is lying back with a hole in his head and blood coming out. This, ladies and gentleman, gives you an idea of what she saw in those last fleeting seconds of her life before it was stolen from her on December 29 of 1997." (Italics added.)
Defense counsel did not object to these comments, and therefore the issue was forfeited on appeal. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) But any misconduct by the prosecutor was not prejudicial. " 'A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.' [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1195.) It was, for example, misconduct for a prosecutor to argue, during the guilt phase of a trial, " 'Suppose instead of being Vickie Melander's kid this had happened to one of your children.' " (People v. Pensinger (1991) 52 Cal.3d 1210, 1250.)
Here, while discussing the drawing of Bugs Bunny with a dead man and what might be the muzzle of a gun, the prosecutor twice said the gun was pointing at the jury. Placed in context, however, the first comment—"There is something pointed at every single one of you at this time"—was made in the context of describing the contents of the drawing. Thus, the drawing of the gun was literally pointing at the jury. The jury may not have construed the comment as an implication that Uitz had a gun pointed at them as opposed to a statement that the drawing was simply facing them. (See, e.g., People v. Morales (2001) 25 Cal.4th 34, 44 [we ask whether there is a reasonable likelihood that the jury construed or applied the complained of remarks in an objectionable fashion]; see also People v. Lucas (1995) 12 Cal.4th 415, 475 [statements should be viewed in the context of the argument as a whole].)
The prosecutor's next comment—"And when we go back to the diagram that's People's 108, what we see is this gang member is pointing that revolver with a triangular sight at the top right at you. Just as it was pointed at Linda Hesse on December 29, 1997"— could be interpreted as an inappropriate appeal to the jury's passion or prejudice by suggesting that a gun was pointing at them, just as it was pointed at Hesse. Even if we assume this was misconduct, it was not prejudicial. For one thing, to the extent the remarks could be construed in an offensive way, they would be improper but the type of prosecutorial misconduct curable by a timely objection in the trial court. (See People v. Samayoa, supra, 15 Cal.4th at p. 841.) Moreover, it was an isolated comment in a long trial made during a long closing argument. In no way was it a part of a pattern of conduct so egregious it infected the trial with such unfairness as to make the conviction a denial of due process under the federal Constitution, and it was not of a nature requiring reversal to protect defendant's right to a fair trial. (Ibid.)
VI. Instructional error on the multiple-murder, special circumstance allegation.
The jury found true a multiple-murder special circumstance allegation; namely, that Uitz was convicted in this case of more than one offense of murder in the first or second degree. (§ 190.2, subd. (a)(3).) For the multiple-murder special circumstance to apply where the defendant is an aider and abettor, the defendant must be found to have had intent to kill. (§ 190.2, subd. (c); People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150; People v. Jones (2003) 30 Cal.4th 1084, 1117; People v. Rogers (2006) 39 Cal.4th 826, 891.) As to the multiple-murder special circumstance, the jury was not, however, instructed that if they believed Uitz was an aider and abettor, then they had to find he had the intent to kill in order to find the special circumstance true. Uitz contends that there was sufficient evidence to show he was an aider and abettor, and therefore the instructional omission was prejudicial error.
The jury was not instructed with CALCRIM No. 702, which provides: "If you decide that (the/a) defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance[s] of ____ , you must also decide whether the defendant acted with the intent to kill. [¶] In order to prove (this/these) special circumstance[s] for a defendant who is not the actual killer but who is guilty of first degree murder as (an aider and abettor/ [or] a member of a conspiracy), the People must prove that the defendant acted with the intent to kill. [¶] [The People do not have to prove that the actual killer acted with the intent to kill in order for (this/these) special circumstance[s] to be true. [If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find (this/these) special circumstance[s] true, you must find that the defendant acted with the intent to kill.]] [¶] If the defendant was not the actual killer, then the People have the burden of proving beyond a reasonable doubt that (he/she) acted with the intent to kill for the special circumstance[s] ____ to be true. If the People have not met this burden, you must find (this/these) special circumstance[s] (has/have) not been proved true [for that defendant]."
People v. Jones, supra, 30 Cal.4th 1084, considered, and rejected, a similar argument. There, the jury found true a felony-murder special circumstance allegation under section 190.2, subdivision (a)(17), which then required a finding that the defendant had an intent to kill if the jury believed he was an aider and abettor rather than the actual killer. The trial court, however, refused to instruct the jury that if it did not find defendant to be the actual killer, then it could find the special circumstance to be true only if it found beyond a reasonable doubt that defendant participated in the robbery with the intent to kill. (30 Cal.4th at p. 1117.) Although two persons were involved in the robbery and the evidence did not preclude the possibility that defendant was not the one who shot the victim, Jones nevertheless found it "doubtful whether there was sufficient evidence to justify the proposed instructions. Defendant now claims that his principal defense was that, although he was a participant and guilty of felony murder, he was not the actual killer. But this is a construct on appeal. Defense counsel at trial simply tried to discredit each of the prosecution witnesses; the defense made no claim, and offered no evidence, that defendant was present during the killing but not the actual killer. It might be possible to support the defense argument here by going through the testimony of the prosecution witnesses selectively, accepting testimony showing defendant was present but rejecting other testimony of the same witnesses showing defendant was the actual killer. On the whole record, however, it is a very weak basis for claiming error in the trial court's failure to instruct." (People v. Jones, supra, at p. 1118.)
Similarly, here, the notion that Uitz was the aider and abettor rather than the actual killer rests not on what the evidence was but what it did not preclude, namely, that Uitz was there that night but was not the shooter. In other words, it rests primarily on the notion that Renteria was telling the truth that he and Uitz were involved in the Lee and Hesse murders, but that it was Renteria, not Uitz, who was the actual killer. But the evidence was that Uitz was the shooter: Renteria testified that Uitz shot the Lees and Hesse; Louallen said Uitz had a "hot" gun used to kill some Asian people; Garivay overheard Renteria say he and Uitz committed the home invasion; Uitz told Ahumada that he hid a gun used in a home invasion; and Wen Tou identified Uitz as the shooter and Renteria as the man who hit him. As in Jones, the defense strategy was to discredit these prosecution's witnesses and to counter with one of their own, Solorio/Goofy, who testified he never drove Renteria and Uitz to a home invasion robbery. Thus, while the evidence did not preclude the possibility that Uitz was the aider and abettor, that is not the same as there being sufficient evidence to support instructing the jury on it for the purposes of the multiple murder special circumstance.
VII. Cumulative error.
Uitz contends that the cumulative effect of any purported errors undermined the fundamental fairness of the trial. As we have " 'either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial,' " we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
VIII. Sentencing issues.
A. Conduct credit.
The trial court did not award Uitz conduct credits on the mistaken belief that section 2933.2, which precludes a person convicted of murder from accruing credits, was in effect in 1997, when the crimes at issue were committed. That section did not become operative until June 1998. Because Uitz committed the murders in December 1997, he was entitled to conduct credit under section 2933.1, which Uitz contends amounts to an additional 330 days. The Attorney General concedes that Uitz is entitled to conduct credit.
As of May 27, 2010, the sentencing hearing, Uitz had 2,204 days of actual time. Fifteen percent of 2,204 is 330 days.
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B. Correction of the minute order and abstract of judgment.
The jury found true personal gun use allegations under section former 12022.5, subdivision (a)(1). The May 27, 2010 minute order and abstract of judgment, however, incorrectly state he was sentenced under section 12022.53. The minute order and abstract of judgment must be corrected accordingly.
DISPOSITION
The minute order and abstract of judgment must be corrected to reflect that a personal gun-use-enhancement allegations were found true under section 12022.5, subdivision (a), and not under section 12022.53. The abstract of judgment must also be corrected to reflect that defendant is entitled to custody credits under section 2933.1. The clerk of the superior court is directed to forward a copy of the corrected abstract of judgment to the Department of Corrections. The judgment is otherwise affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
KLEIN, P. J.
KITCHING, J.