P. v. Ling

Filed 6/16/06 P. v. Ling CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

After a jury trial, defendant Ricky Eclevia, Jr. was found guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with an enhancement for personally using a deadly weapon (Pen. Code, § 12022.7, subd. (a); 1203, subd. (e)(3)). His co-defendant, Benjamin Ling, was found guilty of being an accessory in the assault (Pen. Code, § 32). Both defendants appeal. Eclevia contends that (1) the prosecutor impeded his defense and committed misconduct by intimidating a defense witness into asserting his Fifth Amendment right against self-incrimination; (2) the trial court should have instructed the jury on the defense of third-party culpability; (3) the prosecutor committed misconduct during closing argument by commenting on a third party's absence at trial; and (4) his trial counsel was ineffective for failing to present a nonhearsay basis for the admission of exculpatory evidence. Ling joins in the first and third arguments, adding that the intimidation of the defense witness deprived him of a fair trial and that the prosecutor's improper closing argument lowered her burden of proof. Ling also contends that the court prejudicially erred by denying his motion to exclude evidence that he cleaned his car after the assault. We will affirm the judgment.

Eclevia has also filed a petition for writ of habeas corpus, which this court previously ordered considered with the appeal. In the petition, Eclevia argues that he received ineffective assistance of counsel based on his attorney's failure to retain and present an eyewitness-identification expert. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 24(a).)

Background

The victim, Robert Bonifacio, testified that on October 25, 2001, a friend drove him to an event at the Lime Light nightclub, where he consumed four or five drinks. He did not remember leaving the club or, in fact, anything after 11:30 or 12:00 that night. His next memory was waking up in the hospital with a breathing tube in his throat and severe injuries to his skull, face, right eye, and back.

The chief prosecution witness at trial was Michael Favreau, an off-duty military police sergeant. He had spent the evening with friends at a pub across the street from the Lime Light, but he did not consume any alcohol. When he left the pub at 1:00 or 1:30 a.m. the next morning, he went to the Pho Hoa restaurant next to the Lime Light, where he saw defendant Eclevia sitting with some other people. Eclevia had caught Favreau's attention because of the white hooded sweatshirt or jersey he was wearing.

After leaving the restaurant and dropping off his friends, Favreau drove his truck out of the parking lot and stopped at a traffic light. Across the intersection he saw a man later identified as Bonifacio leaning into the driver's side of a white or silver "two-seater" Honda, equipped with a rear spoiler, parked on the street. Favreau recognized Eclevia as the passenger in this car, but he could not identify the driver. Bonifacio "did like a fast retreat, backed up real quick," before being chased by the occupants of the two-seater and those of a second, dark-colored Honda parked in front of the first car. When Eclevia got out of the passenger side of the first car, he picked up a chunk of concrete from the sidewalk area and "went after" Bonifacio, followed by the occupants of the second car. Eclevia threw the rock, Bonifacio "went down," and the "main four aggressors" of the group, including Eclevia, encircled him and began kicking, stomping, and punching him. During the "melee" the group of eight to 10 grew to 20 or 30 people.

Favreau ran the red light and drove toward the crowd, honking and flashing his lights. He saw that Eclevia again had the chunk of concrete in his hand and was using it to beat the victim in the face. Favreau concentrated on Eclevia the entire time. At trial Favreau was asked about his preliminary hearing testimony, in which he said that Bonifacio came to be on the ground when the group started kicking and stomping him.[1]

When Favreau approached, the aggressors returned to their cars and left the scene in their cars. Eclevia got back into the passenger side of the silver Honda, and a person Favreau did not see got into the driver's side and left as Favreau wrote the license plate number on the back of his hand. He checked on Bonifacio, who was gasping for air and gurgling, surrounded by "a lot" of blood. Then he chased the two cars until they turned into oncoming traffic. Favreau returned to the victim and flagged down police officer Greg Sula.

Later that day, Favreau was deployed to an undisclosed location and could not be reached by police until November 1, 2001. After a second deployment, he returned to the area in April 2002, at which time he was shown a photo lineup and picked out Eclevia. He thought there was a "good possibility" that one of the photographs was of another person at the scene, but he was not 100 percent sure. That photograph was of defendant Ling.

At trial Favreau identified defendant Ling's car from a photograph shown to him. The photograph depicted a silver Honda del Sol without a spoiler, but the license plate number was the same as the one he had written on the back of his hand.

Officer Sula testified that he called for medical assistance and examined the victim at the scene. Bonifacio was lying in the street almost motionless, his head in a large pool of blood. In the middle of the street near the victim's body another officer found a large rock, about three and one-half pounds, and a half-pound rock that appeared to have once been part of the larger one. After the paramedics arrived, Officer Sula returned to Favreau and obtained a description of Eclevia and the license plate number of the Honda del Sol. According to Sula's testimony at trial, Favreau told him that he had seen somebody throw the rock, knocking the victim down. Sula did not recall Favreau specifically saying that the person he had seen at the restaurant was the same person who had thrown the rock. Sula said that Favreau had told him he did not know who had thrown the rock.

Officer Sula determined that the Honda del Sol was registered to defendant Ling. Later that morning, Detective Dan Vicencio[2] interviewed Ling at home. Ling told the detective that he had been at the Lime Light the previous evening with his friend Ricky Eclevia, that he had been driving, and that he and Eclevia had left the club for the Pho Hoa restaurant. As they returned to the car later, they witnessed part of a fight occurring in the street. He and Eclevia tried to chase the car in which the "suspects" had escaped, but they were unable to obtain a license plate number.

Ling permitted Detective Vicencio to examine his car. The car was very clean and appeared to have just been vacuumed. When asked if his car had a spoiler, Ling said that it did, but he had removed it to clean it when he washed the car the day before. Ling gave the detective Eclevia's cell phone number, and Vicencio interviewed Eclevia later that day. Eclevia gave a version of events similar to the one Ling had given Vicencio; he said there were about five males there, and they were kicking the victim. Like Ling, Eclevia could not give the detective a description of any of the people beating the victim. He did not return to help the victim, and he did not call 911 or try to contact the police about the beating.

Detective Vicencio obtained a telephone statement from Favreau on November 1, 2001. Favreau told the detective that the person with the concrete rock had kneeled over the victim, beating him repeatedly, but he did not mention the perpetrator throwing the rock at the victim. At the April 2002 meeting, however, Favreau included the description of the person throwing the rock, knocking the victim down.

After Favreau identified Eclevia from the photo lineup that day, Detective Vicencio arrested Eclevia. At the police station, Eclevia waived his Miranda rights and gave another statement. After initially repeating the previous story, Eclevia admitted that in the dark Honda they had chased were his own friends, including Earl Dizon, Earl's brother Lyle, and Marc Domingo. Lyle had been at the Pho Hoa restaurant with Eclevia earlier that night. At some point Eclevia admitted that he was one of the people involved in the fight, and that he had punched the victim in the face. Afterward, the group met at his house and swore to each other that they would not say anything about what had happened.

At Detective Vicencio's direction, Eclevia attempted to make a recorded "pretext" telephone call to Lyle Dizon. Instead, he reached Earl Dizon.

In late April or early May of 2002, Detective Vicencio interviewed Lyle and Earl Dizon. He repeatedly attempted to schedule an interview with Marc Domingo, but Domingo failed to show up for any of the appointments. Lyle and Earl told inconsistent stories about what had happened. After speaking with the Dizon brothers, Vicencio issued Lyle a juvenile citation for assault with a deadly weapon. Eclevia called Marc Domingo at trial to testify for the defense. Domingo said that he was sitting in the driver's seat of Earl Dizon's black Honda Civic that was parked behind Ling's silver Honda. As Domingo and four others were talking, Bonifacio approached the car, saying it was his. Knowing he was drunk, the group did not agitate Bonifacio, but continued to deny that it was his, even as Bonifacio scratched the car door while trying to open it with his keys. When he tried to reach into the window, Eclevia, who was behind Bonifacio, hit him on the side of the head. Then Bonifacio turned toward Eclevia as if to fight. Domingo and Earl got out of the car, and Domingo saw something fly through the air and hit Bonifacio on the side of the head, knocking him down. Domingo did not actually see who threw the object, but he thought that Lyle had done so. He was sure that Eclevia could not have been the one because of his position. Domingo did not remember seeing anyone stomp or kick the victim while he was lying on the ground. As soon as the victim hit the ground, the flashing headlights from the truck appeared and everyone scattered and went back to their cars. Domingo said he never did any kicking or stomping himself, because he was too busy trying to get back in the car at that point. He had no idea how the victim got two black eyes; Eclevia had hit him in the back of the head and the rock hit him on the right temple, and no one hit him in the face.

After fleeing, the five met at a Denny's restaurant and talked about what had happened. Ling's mother had called Ling to tell him that the police had been looking for him. The group agreed that they would deny being involved in the fight.

Domingo denied making an agreement with Eclevia or Ling that they would blame the fight on Lyle Dizon because Lyle was a juvenile. He did acknowledge that he had become more friendly with Eclevia since Eclevia was accused, because he did not think it was right that Eclevia had to take the blame for what Lyle had done. Both Eclevia and Ling were his "good friends," he said, and they were completely innocent of any wrongdoing. Yet after Eclevia and Ling were arrested, he did not tell the police that they had been wrongly accused because he did not want to be involved. When Detective Vicencio repeatedly called him about the incident, he was always busy at work. Likewise, although Officer Sula tried to reach him, he forgot or was too busy to talk to the officer. Eventually they did speak by telephone, however.

Domingo said that he did not remember what anyone was wearing that night. But he did recall telling a defense investigator that Eclevia had been wearing a white sweater when he returned to the car.

Eclevia testified on his own behalf. His description of the events was similar to that of Domingo. He was standing outside Earl Dizon's car with Lyle Dizon and Ling when Bonifacio staggered up to the car, claiming it was his. Eclevia admitted that he struck Bonifacio when Bonifacio tried to reach into the car. He did not hit him very hard, however; it was "sort of like a slap." He did so because Bonifacio was "starting to scream and yell and was getting . . . pretty crazy." Eclevia was concerned about damage to the car and the safety of the occupants. He was also personally afraid of Bonifacio, who was "walking at [him] in an aggressive manner." Backing away from Bonifacio, Eclevia threw another punch, but Bonifacio continued walking toward him. He did not see the object being thrown, but after Bonifacio was hit, Eclevia looked up, and Lyle was "standing right there." After that, Lyle started "stomping and punching" the victim in the face. When he saw the truck approaching, he alerted the others and they all ran back to the cars.

Eclevia said he had been wearing a white sweater in the Pho Hoa restaurant that night, but he did not think he had been wearing it during the altercation. He did not tell Detective Vicencio, however, that he had taken it off at any time. Eclevia described Lyle as being taller and heavier than he was, comparable to the description Favreau had given of the person who threw the concrete.

At Denny's later, the group made up the story about witnessing a group beating in order to protect Lyle and one another. He told that story to Detective Vicencio the next day, along with the statement that Bonifacio had tried to pull Domingo out of the car. But when the detective confronted him in April 2002, Eclevia changed his original story about a group beating the victim, and instead told a version similar to his trial testimony. He agreed to make the pretext telephone call to Lyle but reached Earl instead. During that conversation Eclevia suggested to Earl that Lyle, as a juvenile, would get at most an easy 30 days in Juvenile Hall, and then the offense would be "off his record."[3]

Ling also testified on his own behalf. He stated that his car was parked in front of Earl's car, which contained Domingo and Earl. He and Eclevia were standing next to Earl's car on the driver's side, with Lyle standing behind Eclevia near the trunk, when Bonifacio approached them. Ling related Bonifacio's claim to the car and his attempt to use his keys to open the driver's door, but Ling did not remember Bonifacio screaming, yelling, or "acting crazy," as Eclevia had testified. When Eclevia hit him in the back of the head, Bonifacio did not appear to be hurt. He started to walk toward Eclevia when a rock came through the air and hit the victim in the head, knocking him down. At that point he saw Favreau's truck and ran to his car. The entire incident took about five seconds.

After the meeting at Denny's, Ling said, he went directly home; he did not clean the car or remove the spoiler. He told the police the pre-arranged story in order to protect his friends. Lyle was the only person in the area from which the rock could have been thrown; it "couldn't have been anybody else." Lyle was the tallest of the group, and heavier than Eclevia. At first Ling had wanted to protect Lyle, but he had not talked to Lyle in about two years. All of the friendships he had had with the group had dissolved over this event.

Eclevia and Ling were charged by information with assault with a deadly weapon, a four-pound rock, and by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1).^[4] Attached to this count was the further allegation that Eclevia had personally used a deadly weapon and that he had personally inflicted great bodily injury on the victim, within the meaning of section 12022.7, subdivision (a); section 1203, subdivision (e)(3); section 667; and section 1192.7. Count two charged Ling with being an accessory. (§ 32.) The jury found Eclevia guilty of count one and the associated allegations true. It found Ling not guilty of assault, but guilty of being an accessory. Eclevia received a suspended six-year prison sentence, with probation for five years and one year in county jail. Imposition of Ling's sentence was suspended and he was placed on probation for three years, along with a four-month term in county jail.

Discussion

1. Intimidation of Earl Dizon

Both defendants contend that they were deprived of their rights to present defense witnesses and to receive a fair trial because the prosecutor "manipulated" or intimidated Earl Dizon into refusing to testify at trial. The claim arises from pretrial proceedings at which Earl asserted his Fifth Amendment privilege not to answer questions related to his presence at the scene of the October 26, 2001 beating. Defense counsel objected that Earl faced no criminal liability as an aider and abettor of these defendants, but the court recognized--and the prosecutor confirmed--that Earl could still be charged with aiding and abetting an attempted murder, and no immunity was being offered.

Alleging misconduct by the prosecutor, defendants invoke both the Sixth Amendment right to compulsory process and the Fourteenth Amendment right to due process. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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 convince either the trial court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Guerra (2006) 37 Cal.4th 1067, 1124.) Intimidating a witness to prevent a defendant from compelling the attendance of a witness violates the defendant's right to due process. (People v. Panah (2005) 35 Cal.4th 395, 460.) Suggesting to witnesses that they will be prosecuted for any crimes they reveal or commit in the course of their testimony constitutes misconduct in violation of this compulsory-process right. (In re Martin (1987) 44 Cal.3d 1, 30; see also People v. Warren (1984) 161 Cal.App.3d 961, 973 [prosecutor's voir dire violated due process by threatening prosecution, thereby intimidating witness].)

The facts before us do not support defendants' assertions of prosecutor misconduct or unconstitutional interference with the defense. At the very inception of the pretrial hearing it was clear that Earl, upon the advice of his own attorney, would be asserting his Fifth Amendment rights. The record does not support defendants' claim that the prosecutor instilled in Earl the fear of murder charges; Earl's counsel acknowledged that the possibility of being charged with attempted murder was "remote." The prosecutor only advised the court, in response to its inquiry, that the People were not offering immunity and that Earl legally could be charged in the future with attempted murder on an aiding and abetting theory, even though defendants had not been charged with that crime. This conduct does not appear to be so egregious that it infected the trial with such unfairness as to deny defendants due process.

2. Prosecutor's Closing Argument

Defendants next take issue with the prosecutor's closing argument, during which she commented on Lyle Dizon's absence at trial. The jury had heard testimony from Ling that he and Lyle were no longer friends, that he saw Lyle infrequently and only when visiting Earl at home, and that he and Lyle rarely spoke to each other. Ling testified that it did not make any sense to try to reach Lyle, because he would not have been able to talk to Lyle directly; either Earl or their father would screen the communication. Ling said that he did try to find Lyle to "get him to court somehow," and twice he discovered where Lyle worked. He did not talk to him, however.

While delivering her closing argument to the jury, the prosecutor queried, "You know, by the way, I was wondering a little bit: Where is Lyle Dizon? [B]ecause Benjamin Ling stated during his direct testimony that he knows where he lives. He knew where he was working at the time. The defense has the power to subpoena him to come in here to speak to you. He didn't show up. You can consider the fact that the defense isn't calling logical witnesses like the person that everyone's pointing a finger at as holding the rock." The court overruled an unreported defense objection, and the prosecutor continued: "As I was saying before, Benjamin Ling, when he got on the stand, said he knew where Lyle Dizon lived and he knew where he worked."

After closing arguments the court excused the jury and heard further objections on the record. Defense counsel took issue with the suggestion that Lyle could have been located and subpoenaed; on the contrary, they argued, both the defense and the prosecution had tried unsuccessfully to find Lyle. Counsel also contended that even if they had been able to compel Lyle's appearance, it would have been "completely futile" because the prosecutor would have pointed out that he could assert his Fifth Amendment right to remain silent. In response, the prosecutor noted that the defense could have produced evidence of the efforts to find Lyle after Ling testified that he knew where Lyle lived and worked. As no such evidence was proffered, the jury could question why Lyle was not produced, and the People were permitted to comment on the failure to call logical witnesses. The trial court agreed.

On appeal, defendants contend that the prosecutor's comments on Lyle's absence at trial constituted prejudicial misconduct and improperly shifted the burden of proof to the defense. We disagree. It is not misconduct to point out to the jury that the defense has failed to produce material evidence or call logical witnesses. (People v. Kennedy (2005) 36 Cal.4th 595, 627; People v. Szeto (1981) 29 Cal.3d 20, 34.) Furthermore, the court instructed the jury, in the language of CALJIC No. 2.11, that neither side was required to call all persons who might have been present during the events disclosed by the evidence or who might appear to have some knowledge of those events. We presume that the jury understood and followed that instruction. (People v. Hinton (2006) 37 Cal.4th 839, 864; People v. Scott (1988) 200 Cal.App.3d 1090, 1095.) The prosecutor's comments were neither improper nor prejudicial.

3. Evidence Regarding Ling's Car

Ling contends that the court erroneously denied his motion in limine to exclude Detective Vicencio's testimony that Ling appeared to have recently washed and vacuumed his car. Defense counsel had argued that the evidence was irrelevant and would lead the jury to speculate about what was being cleaned off or out of the car. Counsel also urged exclusion under Evidence Code section 352 because it would mislead the jury and engender an excessive consumption of trial time to establish when the cleaning had actually taken place.

On appeal, Ling challenges the court's denial of his motion. The trial court's admission of the evidence, however, was neither improper nor prejudicial. Trial courts have broad discretion in determining whether evidence is relevant and in weighing its probative value against its prejudicial effect. We cannot reverse unless the court acted in an "arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) Here the court, after hearing arguments from all parties, exercised its discretion to allow Detective Vicencio's observations to be presented to the jury. Washing the outside and vacuuming the inside could have suggested that Ling was attempting to destroy blood or other evidence of the beating. The witness only stated his impression that the car appeared to have been recently cleaned. The defense rebutted the evidence with testimony from Ling, Domingo, Eclevia, and Ling's mother that Ling always kept his car clean, and that he did not clean his car that night after the beating, but had most likely done so before going out on October 25, 2001. No abuse of discretion, nor any prejudice from the admission of this evidence, is apparent on the record before us.

4. Exclusion of Testimony

During direct examination of Eclevia, his attorney was questioning him about the meeting at Denny's, where the group had agreed on a story to tell the police. Defense counsel asked, "And did Lyle and Earl Dizon and Marc Domingo agree to say any particular things if they were contacted by the police?" At this point the prosecutor objected that the question called for hearsay. The court asked Eclevia's attorney if he was able to articulate an exception, and counsel stated his belief that the answer would be a "statement against interest at that point." The prosecutor responded that the statement would have to be made "by the witness declarant," and the court sustained the objection.

On appeal, Eclevia contends that his attorney was constitutionally ineffective for failing to proffer a nonhearsay basis for admitting the testimony. Eclevia's answer was "completely admissible," he argues, to show "a culpable state of mind on the part of Lyle Dizon," and was not intended to prove the truth of any of the declarants' statements. He further suggests that Lyle's statement was admissible to show its effect on Eclevia himself--that is, how Eclevia behaved in reaction to the statement.

We agree with Eclevia that the proffered testimony was relevant and admissible as nonhearsay. A statement that does not declare a mental state but is merely circumstantial evidence of that state of mind is not hearsay, as it is not received for the truth of the statement but is relevant to determination of declarant's state of mind. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389; People v. Frye (1985) 166 Cal.App.3d 941, 950.) Nonhearsay evidence that is relevant to a disputed issue should be admitted unless some other rule requires its exclusion. (See Evid. Code, § 351.)

We cannot agree, however, that he received ineffective assistance of counsel. To establish this claim, Eclevia must show deficient performance under an objective standard of professional reasonableness and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Huggins (2006) 38 Cal.4th 175.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "Prejudice is established if there is a reasonable probability that a more favorable outcome would have resulted had the evidence been presented, i.e., a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. 668, 693-694; People v. Williams, supra, 44 Cal.3d 883, 944-945.) The incompetence must have resulted in a fundamentally unfair proceeding or an unreliable verdict." (In re Clark (1993) 5 Cal.4th 750, 766; accord, People v. Fairbank, supra, 16 Cal.4th at p. 1241.)

Eclevia maintains that the excluded testimony was "crucial" to his defense, as it would have enhanced his credibility and supported his theory that Lyle was the person who threw the concrete at the victim. But even if Eclevia had been permitted to relate "particular things" that Lyle agreed to say to the police, he had already told the jury that everyone present had agreed to the fabricated story. The contribution of the detail sought in the challenged question was minimal. We see no reasonable probability that a more favorable outcome would have resulted had the evidence been presented to the jury.

5. Instructional Error

Eclevia next contends that his rights to a fair trial and due process were violated because the trial court failed to instruct the jury sua sponte regarding third-party culpability. He argues specifically that the jury should have been provided an explanation that he did not have to prove that Lyle threw the rock, but had only to raise a reasonable doubt that he himself did so. The error, according to Eclevia, left the jury with an inadequate understanding of how to apply the reasonable-doubt concept to the evidence of third-party culpability. In other words, it allowed the jury "to determine who [was] more likely guilty--the defendant or the third party. This inevitably causes juries to evaluate the preponderance of the evidence," contrary to the proper standard of proof. Eclevia acknowledges that his attorney did not request an instruction on third-party culpability, and for that reason he asserts ineffective assistance of counsel.

The jury instructions were adequate here. The court informed the jury, in the language of CALJIC No. 2.90, that the People had the burden of proving the defendant guilty beyond a reasonable doubt. As a key issue was whether Eclevia or Lyle Dizon threw the concrete, the court appropriately read CALJIC No. 2.91, which reinforced and supplemented the prosecutor's obligation by emphasizing that "[t]he burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether a defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty." No authority requires an additional special instruction relating the burden of proof to third-party culpability, and we can find no reason the trial court in this case was obligated to devise one.

In a related argument, Eclevia maintains that he had a right to a pinpoint instruction on third-party culpability as it relates to flight. The court instructed the jury, consistently with CALJIC No. 2.52, that the "flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."

Eclevia contends that this instruction should have been modified to apply to Lyle Dizon as well as both defendants. Neither the facts nor applicable authority supports his position, however. The court made it clear to the jurors that if the evidence of Lyle's culpability raised a reasonable doubt that Eclevia was guilty, then they must find Eclevia not guilty. No modification of the existing instructions was required in this case. As no instructional error occurred, Eclevia did not receive ineffective assistance of counsel based on the failure to request special instructions.

6. Cumulative Effect

Defendants finally contend that the cumulative effect of prosecutor misconduct and other errors deprived them of a fair trial. Because we find no instructional or evidentiary error and no prejudicial misconduct, we reject this contention.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_______________________________________

PREMO, Acting P. J.

_______________________________________

BAMATTRE-MANOUKIAN, J.

People v. Ling, et al.

H028697

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[1] At the hearing Favreau said he did not see Eclevia pick up the rock; he did not see the concrete rock until Bonifacio was on the ground being struck with it. An objection to the admission of this testimony was sustained.

[2] Although Vicencio had been promoted to "agent" by the time of trial, we will refer to him as Detective Vicencio, the position he held while investigating the crime.

[3] An edited version of the taped pretext call was played for the jury. In that conversation between Eclevia and Earl Dizon, Eclevia was complaining about being charged for something he had not done. Earl, however, said, "You all did the dirt together. It really comes down to it. You all go down together." Earl also said, "Yeah. I know, but see but what you call it you're acting like that you were just there, nigger. You know what I'm saying?" When Eclevia said he was going to tell the police that Lyle did it, Earl responded, "Naugh, naugh [sic], because . . . what I'm saying you, you socked his ass. You know what I'm saying? That's it." Earl also advised Eclevia that he could get in trouble for assault with a deadly weapon, because "kicking somebody is assault with a deadly weapon too, and, and hitting them." But when Eclevia complained that he was being wrongly charged for hitting the victim in the head with a rock, Earl replied, "I know you didn't. You know what I'm saying?" He also said, however, that he and Ling were the only ones who had not done anything. Earl suggested that all the guys talk that night, so they could "keep the story straight." He promised Eclevia that his family would help Eclevia pay for a lawyer. Before the tape was read to the jurors, the trial court admonished them that Eclevia's statements were being admitted for the sole purpose of "putting [Earl] Dizon's statements in context."

[4] All further statutory references are to the Penal Code except as otherwise indicated.