P. v. Mejia

Filed 3/15/07 P. v. Mejia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. E. L. Dutemple, Judge.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury found Joshua Michael Mejia guilty of the first degree murder of Robert Johannes, and the trial court sentenced him accordingly to an indeterminate term of 25 years to life in state prison. (Pen. Code,  187, subd. (a); 189; 190, subd. (a).)

Mejia contends the trial court erred by failing to give certain jury instructions regarding accomplice testimony; by giving an incomplete instruction regarding witness credibility; and by allowing a witness to testify pursuant to an improper condition in a plea agreement. Alternatively, Mejia argues his trial counsel was ineffective for acceding to these alleged errors. We disagree with these claims, and will affirm the judgment.

FACTS AND PROCEEDINGS

The Prosecutions Case

Robert Johannes, age 48, lived by himself in a house owned by his mother in the Crystal Falls area of Tuolumne County, east of Sonora. Johannes had been injured in a work-related accident in 2001, and he eventually received, in late 2003 or early 2004, a lump sum workers compensation payment of about $5,000, followed by biweekly benefit checks for $382. Johanness condition deteriorated further when he suffered a stroke in the fall of 2002. The stroke left him with limited mobility, and required him to use a cane to get around.

Johanness house was located on a wooded, steeply sloped lot uphill from a county road. There were some 70 steps leading from a parking area along the driveway to the house itself, which one entered through a sliding glass door off the porch. The living area was on the right, and the kitchen and dining areas on the left. Across the room from the door, a staircase led to Johanness bedroom in a second-story loft area. Given his limited mobility, Johannes spent a lot of time in his bedroom. And he relied on his family and friends to take him places, and help with shopping, the housework, and his other needs.

Johanness other needs included methamphetamine. He sometimes gave people money to go buy it for him, including the defendant, Joshua Mejia, and Mejias girlfriend Rachel Demore. Johannes had been seen taking the money he paid for the drugs from an envelope of cash he kept in his bedroom.

Mejia and Demore had grown up in the area. After becoming a couple, they lived for a while with her parents, then with his parents (whose house was only two or three away from Johanness), and finally, beginning in December of 2004, by themselves in a converted garage apartment they rented for $400 per month (which was paid initially by Mejias parents). Neither Mejia nor Demore worked regularly, however, and they both smoked methamphetamine whenever they could, so they seldom had much money. As a result, they were unable to pay their rent, and had to move out of their apartment at the end of February of 2005.

During the several preceding months, Mejia had often talked to his friends about a comeup, meaning pretty much getting anything that you can thats worth something that you can get money [f]or. More particularly, Demore would later testify, Mejia said he knew this guy that has a lot of money and it would be a good comeup and he wanted to, you know, go up there and beat him up and rob him.^[1] Mejia was referring to Robert Johannes.

The only person, according to Demore, who showed any real interest in Mejias idea, was his friend, Josh Perry (sometimes identified as Josh Menking).

On March 1, 2005, Mejia and Demore packed up the stuff at their apartment, and spent the night there. The next afternoon, March 2, they drove in Mejias pickup truck to a friends house who fronted them some meth. They smoked some of it, and took the rest with them to Johanness house later the same day. Mejia was wearing a sweatshirt, jeans, and a new pair of boots he had bought two weeks earlier with birthday money his parents gave him.

Mejia and Demore went up to Johanness bedroom and smoked more of the meth with him. After awhile, Demore began cleaning Johanness house as a way of repaying him the money he had given her and Mejia a few days before to buy drugs. She picked up the trash, vacuumed upstairs and down, did some dusting, washed the dishes, and wiped down the counters. Mejia remained upstairs with Johannes.

At some point, Mejia came down and got Johannes a glass of Kool-Aid. He later told Demore he had put something in it -- evidently Formula 409 household cleaner -- that he had hoped would make Johannes fall sleep. But the Kool-Aid tasted bad and Johannes did not drink it.

Later that afternoon, while Mejia and Demore were still at Johanness house, some people came by and paid him $150 for a car he had sold them.

Once she finished cleaning, Demore talked some more with Mejia and Johannes in the bedroom, then left the house to wait for Mejia in the pickup. At that point, Demore testified, Johanness metal cane was downstairs, hanging on the back of one of the dining room chairs.

Demore had been waiting in the pickup for five or ten minutes when the outside lights around Johanness house went out. She walked back up to the house to investigate and found Mejia downstairs in the darkened living room. He motioned for her to be quiet and to go back to the pickup, which she did. Demore described what happened next.

It was quiet for a minute and then I heard what sounded like a wrestling match going on. I didnt hear anybody yelling, I didnt hear anything, I just heard like banging, like somebody was wrestling, and that went on for a couple minutes and then it went quiet and a couple minutes later, Josh [Mejia] ran down the driveway and he had a pillowcase over his shoulder and it had a bunch of stuff in it. [] []

He was pretty shook up. He told me when he was up there, Bob [Johannes] had come down the stairs and he said he [Johannes] was holding the cane up like he was going to hit him [Mejia] and Josh said he took a swing at him [Johannes] and they started wrestling, and somehow they ended up in the bathroom and he told me that he had hit him several times over the head with the cane and that he stomped on his chest and then he beat him up with his fists and he said he wouldnt knock out when he was hitting him. He [Johannes] was saying, I didnt mean to touch her, I didnt mean to touch her. [] []

He said after he hit him over the head with the cane and stuff, he had gone upstairs and he grabbed everything that he could and he said when he flipped up the mattress, he found like child pornography and like a bunch of sex toys and he threw them all over the place before he left.

Demore observed that Mejias hand was swollen up huge.

Demore did not see Josh Perry at Johanness house at any time that evening, nor did Mejia ever tell her Perry was, or had been, at the house.

Mejia and Demore drove to a friends house, where Mejia dumped out the contents of the pillowcase onto a bed. There were some video game cartridges, a pistol in a blue canvas carrying case (the same pistol Mejia had stolen once before and sold to Johannes), a BB rifle, some glass meth pipes, an old stamp with a picture of Hitler on it, and several pieces of womens jewelry in a wooden box. All these items would later be identified as having belonged to Johannes; the jewelry had been his aunts, and had been given to him to pass on to his two daughters. Mejia gave some of the items to the people at the house.

Mejia and Demore then drove back to their apartment. Demore resumes the story.

[W]hen we got there, Josh told me to take off my clothes, change my clothes and take off my shoes, and he took off his sweatshirt and his pants and he sorted through everything that he wanted in the bag [pillowcase] and left it out and everything that he didnt want, he put in the bag with our clothes and he threw it on the fire [in an outdoor burn pile].

Mejia did not, however, throw his new boots into the fire. [W]e went and got some beer after that, after he [Mejia] had burned the stuff,and we came back and packed up a little bit and we went to sleep.

When Mejia and Demore awoke the following afternoon, March 3, Mejia started calling around trying to sell the things he had taken from Johanness house. Someone named John agreed to buy the video games. Mejia and Demore drove to Johns house. He gave them a hundred dollars for the games. [W]e stayed there for a minute and did a line and left.

They drove next to Josh Perrys house, because Mejia said Perry owed them some money or drugs. It was dark by the time they arrived. Demore overheard Mejia ask Perry where were you and stuff . And Mejia told Perry something to the effect that he had beaten up a child molester. Mejia gave Perry some of the jewelry, and the Hitler stamp.

Mejia and Demore stayed only about 20 minutes at Perrys house before returning to their apartment. They packed up more of their stuff, gave the owner some money, and then drove to yet another friends house, where they spent the rest of the night sleeping in their pickup in the driveway. It was now early in the morning of March 4. The following day, Mejia and Demore borrowed some money from Mejias aunt and headed for Salinas where Mejias brother was living.

Mejia and his brother sold the handgun for $100 and a pretty good amount of cocaine. Two days later, on March 7, Mejia and Demore drove to the nearby town of Prunedale, where they stayed with some friends of Mejias parents (who also were there). It was in Prunedale, on March 9, that Mejia and Demore learned warrants had been issued for their arrest for Johanness murder. Mejias parents hired a lawyer, who arranged for the couple to turn themselves in to police. Before that happened, however, Mejia took off his boots and threw them into some bushes near the Prunedale house. He was wearing tennis shoes when he was arrested

Johanness body had been discovered on the afternoon of March 3, downstairs on the floor of a bathroom adjoining the kitchen. Based on an analysis of blood stains and spatters found in the house, Johannes initially was attacked near the bottom of the stairs, then dragged across the carpet to a point in the living room, and then dragged again from there through the dining area and across the linoleum floor in the kitchen to the bathroom, where he was beaten some more. There were two bloody footprints on the kitchen floor. Johanness metal cane was on the sofa; it appeared to be bent, and had dried human blood on it. The canes rubber tip had detached and was found on the living room floor.

Johannes had $147.15 in the pocket of his pants. The T-shirt he was wearing had what later appeared to one investigator to be a shoe print in the blood on the front of the shirt, with a herringbone pattern different from that in the bloody footprints on the floor. But a criminalist who also examined the shirt was unable to confirm the investigators suspicion.

The pathologist who performed an autopsy of Johanness body found numerous blunt force injuries and lacerations on his face and head inflicted by something like a pipe or something heavy and hard with a relative[ly] linear shape to it, like Johanness metal cane. The pathologist acknowledged the injuries also could have been inflicted with a pool cue. One potentially fatal blow had fractured the base of Johanness skull and caused bleeding over the surface of his brain. There also were bruises and contusions on his face consistent with his having been punched or kicked.

Another potentially fatal blow to Johanness neck had fractured the hyoid bone protecting his breathing passage. Such an injury could have caused a severe spasm of the airway leading eventually to suffocation.

And Johannes had very significant chest injuries caused by having been kneed or stomped with great force. The breast bone was fractured in two and all the ribs around the edges were broken inward and there was a depression there. This resulted in what we call a flail chest on both sides and that is a loss of continuity of the rib cage [such that] the person can no longer exchange air properly [and] they may suffocate. Similar knee or stomping blows to Johanness abdomen had lacerated his liver and spleen, and caused internal bleeding. Johanness death was probably caused by the combined effect of these injuries.

A toxicology test established that Johannes, at the time of his death, had a large quantity of methamphetamine in his system.

A palm print from Mejias right hand was found on top of the kitchen stove, in an area adjacent to the route from the bathroom into the kitchen, and facing outward from the bathroom. The print was consistent with one that would have been left if a person were to step out of the bathroom over the victim [Johannes] and put their hand on the stove for support. A thorough cleaning of the stovetop (such as Demore said she had done) would have removed any pre-existing prints, in which case the palm print would have to have been left afterward.

Seven latent prints were found on Johanness cane. Three matched Mejias left palm, and one matched his right little finger. The remaining three were insufficiently clear to establish a definite match, but could have been left by Mejia. The location and orientation of the prints indicated that Mejia had held the cane by the end away from the curved handle.

All the prints found at the scene were compared with those for Johannes, Demore, and Josh Perry, in addition to Mejia. Two prints taken from the sliding glass door were matched to Johannes, and one print on the bathroom sink was matched to Demore. None of the prints belonged to Josh Perry.

The soles of Mejias boots (the ones he had tossed into some bushes in Prunedale) were compared with the two bloody footprints found near Johanness body on the kitchen floor of his house. Despite some similarities, there was too little detail in the footprints to match them positively to the boots.

Investigators searching Johanness bedroom found a sexually explicit magazine called Naughty Neighbors under his bed, but they found nothing there or elsewhere in the house containing photographs of children in sexual poses. Nor was any such material found among Mejias possessions when officers searched the contents of his pickup truck.

In addition to telling police where to look for Mejias boots, Demore provided other information that led investigators to some of the items Mejia reportedly had taken from Johanness house on the night of the murder. Some pieces of the jewelry (but no clothes) were found in the burn pile at Mejias and Demores former apartment. The BB gun, rifle, some video games, and additional jewelry items were recovered from the persons to whom, by Demores account, Mejia had given them. This included Josh Perry, who later led investigators to the mud hole where he had disposed of the jewelry.

Mejias Defense

Mejia testified in aid of his own defense, which was, essentially, that Josh Perry killed Robert Johannes after he (Mejia) had left Johanness house.

Mejia acknowledged having talked to some people, including Perry, about a comeup, i.e., a theft, at Johanness house, but dismissed the talk as idle conversation and denied going to the house on March 2, 2005 for that purpose. He went instead, he said, to make up for having accepted $100 from Johannes a few days earlier to go buy him some meth, and then using all the drugs for himself and Demore.

By Mejias account, he and Demore smoked the meth they had brought with them with Johannes. They talked and played video games in his bedroom. Time passed. The people who were buying Johanness car came and left. Demore was downstairs cleaning; Mejia and Johannes were upstairs in the bedroom. Then Johannes went to the restroom.

While Johannes was in the restroom, Mejia decided to help Demore with the cleaning, and started to collect the trash in the bedroom. As he did, he found a sexually explicit magazine called Naughty Neighbors. He sat down on the bed to look through it, when two Polaroid photographs fell out. They appeared to Mejia to show Johanness two young daughters engaged in some sort of sexual act. Mejia was really disgusted and put the photographs back inside the magazine. Then, for reasons he could not later explain, Mejia gathered up the video games and a BB gun and put them in a pillowcase. (He denied taking Johanness black pistol or the wooden box of jewelry.) Mejia took the pillowcase downstairs and put it outside on the porch with the trash, near the sliding glass door. Then he went back upstairs.

At this point, Johannes came out of the bathroom. Mejia accused him of being a child molester. Johannes got angry and started yelling at Mejia to leave. The commotion brought Demore upstairs. Johannes made a lewd comment to Demore, and she hit him in the face three times with her fist. Johannes lifted his cane as if to hit Demore, whereupon Mejia stepped in between them and told Demore to go downstairs. She left the house and walked down toward the pickup. Mejia took the cane away from Johannes and threw it on the bed. He then went downstairs and out of the house through the sliding glass door.

At that moment, Mejia testified, Josh Perry jumped out from behind the house over the railing and onto the porch. He was dressed entirely in black, and was wearing blue rubber gloves. He asked Mejia if we were going to do a comeup. Mejia said no, but added that Bob [Johannes] was more than likely a child molester. Perry reportedly responded he needed money and he wanted to do a comeup and basically he didnt care what was going on. Mejia reportedly told Perry that I was leaving and I didnt want nothing to do with it. Mejia denied having previously made plans with Perry to do a comeup that day at Johanness house.

Despite Mejias attempts to stop him, Perry ran into the house and up the stairs to the bedroom. Mejia followed as far as the living room. I heard a few noises going on upstairs and I was at the bottom of the stairs and I had seen Bob come to the door and he had his cane in his hand and Perry was hitting him. Perry knocked Johannes to the ground and stomped him repeatedly in the head and chest before sending him Tilt-A-Whirling down the stairs, stilling holding onto his cane. Perry then started beating the hell out of [Johannes] with the cane, and stomping on him intermittently while looking around the house for things to steal. Mejia was too frustrated and scared at this point to know what to do. Finally, however, he retrieved the pillowcase containing the BB gun and video games, and left the house. Demore was waiting for him down below. They got into the pickup and drove to their former apartment. According to Mejia, he told Demore along the way about everything that had happened up at the house with Perry.

At the apartment, Mejia punched his truck out of frustration, which accounted for his swollen hand. He acknowledged burning some junk that night in the burn pile, but described it as miscellaneous items that we didnt want to take with us to Salinas. He recalled, however, seeing Demore throw a bag of clothes into the fire, along with a small wooden box. Mejia denied trying to poison Johanness Kool-Aid, and denied throwing his boots into the bushes in Prunedale.

After his arrest, Mejia gave an interview to investigators in which, over the course of several hours, he offered various conflicting versions of the circumstances surrounding Johanness death. His testimony at trial was different still, in many particulars, from what he had told the investigators. He had not been entirely truthful, Mejia explained, because he was trying to protect Demore, and avoid implicating his friends. Eventually, however, as we have explained, he directly implicated Demore in the theft of Johanness property (his jewelry in particular), and named Perry as Johanness killer.^[2]

Officers arrested Perry on March 17, 2005. A search of the vehicle he was driving, which belonged to his girlfriend, produced the bottom half of a screw-together pool cue, a rifle belonging to a friends father, and a pair of tennis shoes having a herringbone pattern on the sole.

Rebuttal Testimony

Demore, in rebuttal, reaffirmed her earlier testimony and denied Mejias account of events insofar as it differed from hers.

The prosecution also called Josh Perry as a rebuttal witness. Perry testified he did not know Robert Johannes; he had never been to Johanness house and was not there on March 2, 2005; he did not steal anything from Johannes; and he did not hit, kick, or beat Johannes with anything, nor did he kill him.

The Criminal Charges

A criminal complaint filed in March of 2005, charged Mejia, Demore, and Perry -- all three of them -- with the murder of Robert Johannes.

Demore subsequently reached an agreement with the district attorney under which the charge against her (and a separate assault charge in another case) would be dismissed if she testified truthfully in the murder case.

Perry eventually agreed to plead guilty to conspiring with Mejia to rob Johannes, and to receiving stolen property from Mejia (the stamp and jewelry). The agreement also included Perrys promise to testify truthfully if called upon to appear as a witness in the murder case.

At trial, the prosecution maintained Mejia was guilty of first degree murder on any one of three theories: premeditated murder, felony murder in the course of a robbery, and felony murder in the course of a burglary. The jury also was given instructions on second degree murder, voluntary manslaughter, and involuntary manslaughter.

The jury found Mejia guilty of first degree murder.

DISCUSSION

The Accomplice Instructions

Mejia faults the trial court for convinc[ing] an unprepared defense attorney, and the attorney for allowing himself to be convinced, to withdraw his request for accomplice instructions in regard to the testimony of Josh Perry. (Mejia does not appear to be making the same arguments with respect to Rachel Demores far more damaging testimony.)

A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. (Pen. Code,  1111.)

The defense, at the outset of the trial, asked the court to instruct the jury that Perry was an accomplice as a matter of law (CALJIC No. 3.16), that an accomplices testimony should be viewed with caution (CALJIC No. 3.18), and that accomplice testimony must be corroborated by other evidence (CALJIC No. 3.11).^[3]

The prosecutions general theory of the case, as broadly outlined to the jury in closing argument, was that Mejia and Perry had agreed to meet at Johanness house on March 2, 2005, to get him high on methamphetamine, and then to steal the large amount of money they believed he kept in his bedroom. But Perry decided at the last minute, apparently because he had been paid a visit the same day by his probation officer, that he would not participate in the plan. Consequently, he never showed up at Johanness house.

The prosecution decided to call Perry as a witness, and only then as a rebuttal witness, after Mejia decided to testify and identify Perry as the person who beat Johannes to death. Perrys testimony was limited to his denial he had taken any direct part in either the theft or the beating; he did not give any testimony implicating Mejia in these crimes.^[4]

The question then in regard to the accomplice instructions was whether to tell the jury, in effect, that Perry had conspired with Mejia to commit murder. Mejias defense at that point was that he had not conspired with Perry to do anything; that he had gone to Johanness house that day with purely innocent intentions; that Perrys sudden appearance at the house was completely unexpected; and that he (Mejia) had done nothing to assist or encourage Perrys assault on Johannes. The court asked defense counsel whether, with the case in this posture, he still wanted the court to give the accomplice instructions. The following exchange is representative.

THE COURT: I dont want to make a mistake here and I certainly want to give your client every benefit that hes entitled to in the instructions but if I give that [i.e., an accomplice is a person subject to prosecution for the identical offense], arent I announcing to the jury that [Perry is] an accomplice to murder with your client?

MR. CHANNELL [defense counsel]: No , because at one point, Rachel Demore, Perry and Mejia were all charged with murder.

THE COURT: Well, you can clearly argue that[,] but now youve got to get from there to being an accomplice to the specific count [Mejia] is charged with. [] []

Thats the hard part because what Im telling [the jurors] to do, if they find from the facts that either Demore or Perry are accomplices, theyre accomplices with your client by reason of aiding and abetting him in a criminal conspiracy to commit murder. You can clearly argue with or without this instruction that they were offered plea bargains, they were charged with the same offense and you think they did it, but you really want me to instruct the jury that they should consider whether Josh Perry is an accomplice with your client for murder?

MR. CHANNELL: The way youre phrasing it, absolutely not.

THE COURT: Well, thats what it says. [] [] Now, maybe Im missing something, and Id like to get the perspective from the district attorney.

MR. SEGERSTROM [the prosecutor]: [I]t is the Peoples view that Demore was not an accomplice and thats why I objected to these [instructions]. Perry was clearly an accomplice to the robbery.

THE COURT: Which [Mejia] isnt charged with.

MR. SEGERSTROM: Correct.[T]he plea bargain [with Perry] was struck[] because he didnt show up for the robbery and didnt commit the homicide. Now [] [] [t]heres evidence from the defense that he did.[A]ssuming, as I anticipate[,] that Perry testifies, the purpose of these instructions really is to require corroboration [] [] [of Perrys testimony] to convict [Mejia]. To the extent that a murder conviction is based on felony murder on a robbery theory, I think the answer is yes, [Perry] is an accomplice to the crime of robbery. [] []

MR. CHANNELL: You know, I guess either way is that if its given, and its incorrect, were going to get dinged by the appellate court and if I dont give it and its incorrect [sic, correct], then its going to come back incompetence of counsel. [] [] So, Im just trying to think which one is the better way to go. [] []

THE COURT: I think Im inclined to give it. I think Im inclined to give it.

MR. CHANNELL: Im going to withdraw it, I think -- well, okay. While youre talking, Im sitting here and [Im] trying to balance out how to do this. I dont want the Court instructing the jurors that Mr. Mejia is -- for this instruction to be given, basically I know youre not going to say it that way, but for this instruction to be given, that Mr. Mejia had to have been involved with the murder[,] and my argument to the jury is he is not, that Josh Perry did it, so I think based upon the wisdom of the Court and its understanding, that Im going to withdraw it.

Defense counsel had several subsequent opportunities to reconsider and renew his request for accomplice instructions, including after Perry testified, but he did not.

To say the trial court convinced an unprepared defense attorney to withdraw his request for accomplice instructions completely mischaracterizes what actually happened here, and unfairly denigrates both the court and the attorney. The court and both counsel engaged in a lengthy and thoughtful discussion of the instructions; defense counsel was given ample time and opportunity to weigh the relative advantages and disadvantages of giving them; and by all appearances he took good advantage of the opportunity. More to the point here, there clearly were advantages and disadvantages to giving the instructions. Mere disagreement with the reasonable tactical choices made by an attorney in the course of providing a defense is no basis for finding ineffective assistance of counsel. (People v. Frierson (1979) 25 Cal.3d 142, 158 [except in rare cases, appellate court should not try to second-guess trial counsels choice of tactics].)

An accomplice is a person who is subject to prosecution for the identical offense charged against the defendant on trial by reason of aiding and abetting [the defendant to commit the offense] or being a member of a criminal conspiracy [with the defendant to commit the offense]. (CALJIC No. 3.10, italics added.) The identical offense in this instance was murder.

Mejia observes that Perry might have been subject to prosecution for murder even had he not conspired to commit that specific crime. That is, a person who conspires with another to commit an offense may be held liable for a different offense committed in the course of the conspiracy, if the other offense was a natural and probable consequence of the intended one. (People v. Garcia (2000) 84 Cal.App.4th 316, 325-326.) Thus, Perry might theoretically have been an accomplice in Johanness murder if he conspired with Mejia to rob Johannes, and Johannes was killed during the robbery (and if Perry was still a member of the conspiracy when the robbery occurred). This same reasoning, of course, would also have made Mejia liable for the murder, which presumably is why he took the position he had not conspired with Perry at all, to do anything.

There were, in short, sound tactical reasons for not wanting to identify Perry as Mejias accomplice. (See People v. Hill (1967) 66 Cal.2d 536, 555-556 [if a witness has admitted the crime charged against the defendant, an instruction identifying the witness as the defendants accomplice tends to impute the witnesss admission to the defendant].) It is not error in this situation to omit the instruction. (Id. at p. 555.)

The Witness Credibility Instruction

Defense counsel asked the court to instruct the jury pursuant to CALJIC No. 2.20 that one of the factors it could consider in assessing the believability of a witness (Perry and Demore specifically) was whether he or she was testifying under a grant of immunity. (See People v. Echevarria (1992) 11 Cal.App.4th 444, 449-450.) Counsel abandoned the request once it was pointed out that neither Perry nor Demore had in fact been granted immunity.

MR. SEGERSTROM [the prosecutor]: There hasnt been an outright grant of immunity. There has been a plea bargain.

THE COURT: Which I think goes to the credibility of the witness, but its not an outright grant of immunity and I dont think there is one.

MR. CHANNELL [defense counsel]: Well, with Ms. Demore because theres no -- the only plea bargain in her case is to testify; isnt that immunity?

MR. SEGERSTROM: No, I mean, if she got up on the witness stand and said yeah, yeah, yeah, I did it, I could still charge her.

MR. CHANNELL: Well, okay, I have to go back to my law school stuff here which I havent thought about in years. Transactional immunity.

THE COURT: Well, transactional immunity, its still a grant of immunity and there isnt a technical, as defined in the Penal Code, grant of immunity here. Theres plea bargains and you can argue that at length .

Mejia concedes there was no immunity, but faults the court for formalistically following the wording of CALJIC No. 2.20 rather than modifying the instruction, sua sponte, to refer to the plea agreement that prosecution witnesses entered into with the district attorney before they testified against [Mejia]. He also maintains his trial counsel was ineffective for failing to press the point.

Mejia cites no authority, nor are we aware of any, that imposes a sua sponte duty on the trial court to give a cautionary instruction regarding witnesses testifying pursuant to a plea agreement. (See People v. Echevarria, supra, 11 Cal.App.4th at p. 449 [no sua sponte duty to give cautionary instruction regarding immunized witness].)

Moreover, the unmodified CALJIC No. 2.20 instruction adequately conveys the rather obvious point that a witnesss testimony may be colored by his or her self-interest. It advises the jury it is the sole judge[] of the believability of a witness[,] and that it may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness. This is followed by a nonexclusive list of general factors that may, depending on the circumstances, reflect on a witnesss truthfulness. The list includes [t]he existence or nonexistence of a bias, interest, or other motive. Adding to this list that the jury may consider whether the witness was testifying pursuant to a plea agreement only would have provided a more specific example of this same general idea. (See People v. Castro (1979) 99 Cal.App.3d 191, 196-197 [not error in light of CALJIC No. 2.20 to refuse cautionary instruction regarding testimony of a witness who provides evidence against the defendant for pay or for immunity from punishment, or for personal advantage or vindication].)

Defense counsel went to considerable lengths in his cross-examinations of Demore and Perry, and in his closing argument, to call the jurys attention to their agreements with the prosecution to testify in this case. The jury cannot have missed the suggestion, indeed the accusation, that their testimony was self-serving and untruthful. We do not mean to say necessarily that the trial court would have been justified in refusing a properly worded addition to CALJIC No. 2.20, but only that defense counsels failure to offer one, if error, was undoubtedly harmless. (People v. Garcia, supra, 99 Cal.App.3d at pp. 197-198.)

Perrys Plea Agreement

When the prosecution called Perry as a rebuttal witness, it began by questioning him about the nature of his plea agreement. The examination included the following:

Q. [by the prosecutor] And in that plea bargain, there were a bunch of cases that got taken care of, correct?

A. [by Perry] Yes.

Q. In this case you pled guilty to conspiracy to commit robbery and receiving stolen property, correct?

A. Yes.

Q. And in another case, you pled guilty to possession of methamphetamine and receiving stolen property?

A. Yes.

Q. That was a completely unrelated case, right?

A. Exactly.

Q. And in [still another case], you were on probation in that case for possession of a deadly weapon?

A. Yes.

Q. So your probation got violated as a result of the plea bargain?

A. Yes.

Q. And you got a total stipulated sentence of six years eight months, right?

A. Yes.

Q. And as part of that disposition, you agreed to testify truthfully in this case, correct?

A. Well, the agreement was, was that if Mr. Mejia was to take the stand and say that I was the one that killed Mr. Johannes, then I would have to come in and say basically no to that.

Q. Is that what you understood the agreement to be?

A. Yes. (Italics added.)

Mejia interprets Perrys description of his plea agreement to mean it compelled him to testify he had not killed Johannes, regardless of whether this was in fact the truth. Perrys testimony pursuant to such an agreement, Mejia reasons, was so prejudicial as to deny him his constitutional right to a fair trial.

[A] defendant is denied a fair trial if the prosecutions case depends substantially on accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion. [Citation.] Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in defendants conviction [citation], the accomplices testimony is tainted beyond redemption [citation] and its admission denies defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid. (Fn. omitted.) [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 417.)

We understand Perrys statement differently, to mean only that he would not be required to appear as a witness unless Mejia testified and implicated him in Johanness murder. That is, we find no support for Mejias conclusion Perry had been coerced into testifying falsely in that situation. Indeed, Mejias argument assumes the thing he was hoping to prove at trial -- that Perry killed Johannes -- and reasons from that premise that Perrys testimony to the contrary therefore must be false. It would be the epitome of naivete, Mejia asserts, to think that a 23-year-old man facing a life sentence would not testify the way the prosecution wanted him to testify. This is simply a more dramatic way of saying there is a certain degree of compulsion inherent in any plea agreement. (People v. Maury, supra, 30 Cal.4th at p. 417.) But this observation is not evidence the prosecution used its bargaining leverage to extract perjured testimony from a witness.

Finally, the prosecutions case against Mejia did not rely to any significant degree; much less did it depend substantially, on Perrys testimony. Perry simply testified he was not the person who robbed and murdered Johannes. The evidence that the person who did was Mejia came from numerous other sources, and was compelling if not overwhelming.

DISPOSITION

The judgment is affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

LEVY, Acting P.J.

_____________________

GOMES, J.

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^[1] In fact, Johannes had already spent most, if not all, of his $5,000 lump-sum workers compensation payment. Johanness sister testified he had given her $3,000 in 2004 to take his two daughters on a trip to Disneyland, and another $2,000 to buy them clothes and Christmas gifts.

^[2] One of the witnesses who testified for the defense was a friend of Mejias named Carl Greenway. Greenway and Mejia had been housed at the same time at the county jail, sometime after Mejias arrest in this case. Greenway testified he had seen Josh Perry at a friends house on the night of March 2, 2005. He remembered the date because he had seen a story in the local newspaper that day about Johanness murder. Perry had come to the house to sell Greenways friend some crystal meth, and Greenway acted as the middleman in the transaction, which took place outside at Perrys car. According to Greenway, Perry seemed scared and agitated. He was also flashing around a large roll of cash that appeared to Greenway to contain between four and five thousand dollars. The roll of cash was wrapped in a check stub and secured with a rubber band. The check stub had United States Treasury written on it, along with the name Robert Johannes or Robert Johnson.

In rebuttal, the prosecution presented evidence that Johanness murder was not reported in the newspaper until March 4, 2005; that Johanness benefit checks came from the state rather than from the federal government; and that his name did not appear on the check stubs.

^[3] The defense also requested CALJIC No. 3.10 (accomplice defined); CALJIC No. 3.12 (sufficiency of corroborative evidence); CALJIC No. 3.13 (one accomplice cannot corroborate another); CALJIC No. 3.14 (criminal intent necessary to make one an accomplice); CALJIC No. 3.19 (defendants burden to prove witness was an accomplice).

^[4] Perry acknowledged he had agreed to plead guilty to conspiracy to commit robbery and receiving stolen property because he was in fact guilty of those offenses. He did not say he had conspired with Mejia or received the stolen property from him, although that might reasonably have been inferred under the circumstances.