P. v. Ocegueda

Filed 9/18/07 P. v. Ocegueda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant Arturo Ocegueda.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Alfredo Moreno.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Deputy Attorney General, for Plaintiff and Respondent.

An information charged defendants Arturo Ocegueda (Defendant O.) and Alfredo Moreno (Defendant M.) with murder (Pen. Code, 187, subd. (a))^[1]and alleged the special circumstance of lying in wait ( 190.2, subd. (a)(15)). Following a jury trial, Defendant O. was convicted of first degree murder, and the special circumstance of lying in wait was found to be true. Defendant M. was found guilty of second degree murder, but the special circumstance was not found to be true. Defendant O. was sentenced to state prison for life without the possibility of parole. Defendant M. was sentenced to state prison for a term of 15 years to life.

I. PROCEDURAL BACKGROUND AND FACTS

Francina Urquidez (Urquidez) was the best friend of Daniell Alonzo (the victim). Urquidez met Defendant O. in summer 2001. She went out on a few dates with him and decided to stop the relationship. Immediately thereafter, Defendant O. began dating the victim. One time while the three were together, Defendant O. said to Urquidez, If it wasnt for [the victim] being your friend, something would happen to you. By 2002, Defendant O. was living with the victim in a duplex apartment. Defendant O. was a controlling and jealous boyfriend. In March 2002, the victim told Urquidez that Defendant O. threatened her while flashing a gun, stating that he would hurt her if he found her with anyone else. The victim walked with her head down because if Defendant O. saw a man walk by her, he would assume that the victim had looked at the man. Defendant O. dropped the victim off at her work, picked her up, and phoned her many times during the day. He falsely accused the victim of sleeping with guests at the motel where she worked.

In May 2002, the victim found out that she had contracted a sexually-transmitted disease from Defendant O. She then broke up with him and made him move out. She called Urquidez and asked for help in changing the locks on her front door. On May 25, 2002, the victim called 911 because she was having trouble with Defendant O., who was no longer living with her.

The victim had two young children from a prior relationship. Her landlady, Lourdes Ramos (landlady), was the childrens babysitter. After Defendant O. moved out, the victim told the landlady that Defendant O. would still come by and visit. Defendant O. had four daughters, two with Defendant M.s sister, Corinna (Defendant M.s sister). When Defendant O. and Defendant M.s sister were a couple, Defendant M. was a little boy. The couple separated approximately eight years ago; however, Defendant O. would speak to Defendant M. when picking up his two daughters.

The victim worked at the Comfort Inn with Dennis Lim (Lim). She told him that her live-in boyfriend, Defendant O., was very jealous, resisted her efforts to break up with him, and kept her from going anywhere with friends. When she showed up at work with a bloody mouth, she explained that Defendant O. was the cause. Lim also noted a bruise on the victims wrist, which the victim described as being caused by Defendant O.

In early June 2002, Defendant O. asked the niece (Elaina Sabala) of a female friend (Susan Navarro) to lure a woman to Riverside, where Defendant O.s younger cousin and some friends would take care of the woman over a drug deal gone bad. The niece refused to have anything to do with the plan, even after Defendant O. offered to take care of her. He told her she had better not tell anyone about their conversation or else he would come talk to [her.]^[2]

About a week before victims murder, Defendant O. asked the victim to meet him after work. He wanted the victim to look at a car. The victims supervisor advised the victim not to meet Defendant O. because of the way Defendant O. was acting. The victim did not want to be talked out of it because she needed a car; however, because it was late in the night, she declined Defendant O.s invitation. Nonetheless, on June 13, 2002, the victim told her supervisor that she was going to go out that weekend to look at a car with Defendant O.

Around 12:33 a.m. on June 14, 2002, the victim called the police and reported that she had received 16 phone calls from Defendant O. between 11:15 p.m. and 12:30 a.m., in which he attempted to disguise his voice. He told her, among other things, to be careful and watch her back. The final call was from a female (later identified as Danielle Jacobs), who stated something about a threesome being planned for the victim that weekend.

The victim and Lim made plans to go out Friday night, June 14, 2002. By prearrangement, the landlady agreed to baby-sit the victims two children. At approximately 7:00 p.m., the victim told her grandmother that she was going to meet Defendant O., who had found a car for her. Shortly before 8:00 p.m., the victim dropped off her children at the landladys apartment. She was carrying a gift bag and was dressed to go to a party. She called Lim and said that she was going to meet Defendant O. to check out a car but that she would be no longer than 40-45 minutes. She said that if it was longer, she would meet Lim at the party.

That same night, Defendant O. picked up his daughters at the home of Defendant M.s sister after 9:00 p.m. and left with them about 20 or 30 minutes later. He had called earlier that day to arrange to pick them up. Meanwhile, Defendant M., who was about 18 years old, walked into TXI cement plant and asked someone to call a cab.^[3] A taxi was called at 9:10 p.m. When the dispatcher asked for a name, Defendant M. replied, John. Defendant M. waited outside but later returned, stating the cab did not show. He then called his mother around 9:53 p.m., but she did not pick him up. A TXI employee noticed what appeared to be a bloodstain on the bottom back of Defendant M.s T-shirt, which was hanging out from underneath his jacket. Defendant M. eventually left TXI.

When Lim did not hear from the victim, he began calling her every 15 or 20 minutes beginning at 10:00 p.m. Lim drove by the victims duplex before midnight. He did not see Defendant O.s car but he was not looking for it. Lim later called the victims phone again but hung up when a man answered.

On Saturday morning, a little before 8:00, Defendant O. and his two children went to the landladys apartment with Happy Meals for the victims children. The landlady went to the victims apartment and talked to Defendant O., who asked where the victim was. The landlady said the victim had gone to a party but had never returned. Defendant stated that he was in the victims apartment because she had called him and asked him to bring his children over to watch a movie with her children. The landlady did not think this was odd because the victim had said that defendant came over even after she had kicked him out.

On Saturday, June 15, 2002, at about 9:20 a.m., the victims car was found high-centered on a dirt berm in a residential neighborhood in Rubidoux. No keys were in her car, and there was no purse or a gift bag. Blood was soaked into the front seats, and blood was on the seat belt and smeared on the inside passenger door. A possible bullet fragment was behind the drivers seat on the floor.

The landlady unlocked the victims apartment for the police officers, who arrived there about 9:40 a.m. on June 15, 2002. The apartment was immaculate and there was no one home. All the windows and doors, including the rear sliding glass door, were closed and locked. A patrol officer informed the landlady that the police had found the victims abandoned car with blood in it. Approximately one and one-half hours later, Defendant O. returned to the landladys apartment asking if she had seen the victim. When the landlady informed him the police had found the victims car with blood in it, Defendant O. said he would call the police. However, he did not place the call until 7:20 p.m. Defendant O. told the police that he was the victims boyfriend and had just found out that her vehicle was covered in blood.

Detective Bryan Lentz, a San Bernardino police detective, began interviewing Defendant O. at 8:20 p.m. on June 15, 2002. Riverside Sheriffs Detective John Powers also interviewed Defendant O. on June 15 at approximately 10:50 p.m. Defendant O. admitted that he and the victim had broken up. He claimed that it was because he was seeing other girls. He admitted that he was no longer living with the victim but that he had stayed overnight a few times since the breakup. He claimed that he and the victim had argued on June 13, 2002. He admitted making a number of phone calls but claimed he was just messing around. Defendant O. said that on Friday, June 14, the victim invited him to her apartment and suggested that he bring his children over so they could take all of their children to a movie on Saturday. She also said that he and his children could stay in the apartment that night.

Defendant O. claimed to arrive at the victims apartment around 7:15 p.m. on Friday, June 14. She was getting ready to go out. She said she was going out with Amanda.^[4] Defendant O. said he left about 8:00 p.m. for his mothers house to get some clothing. He insisted that he stayed at his mothers house from 8:00 p.m. to 9:00 p.m. Then he picked up his children from Defendant M.s sister and returned to the victims apartment about 10:00 p.m. on Friday. He said that he went inside victims apartment through the unlocked sliding door left open for him. Defendant O. said he watched television until he fell asleep. He woke up between midnight and 1:00 a.m., went outside, and drank beer with the neighbors. When Defendant O. heard the phone ring, he answered it, but no one replied. Defendant O. went to bed about 2:00 a.m. He awoke the next morning and the victim was not home.

Defendant O. claimed he first heard that the victim was missing when he talked to her father in the mid-afternoon. Defendant O. phoned police after the victims father told him that the victims car had been found with blood inside. Defendant O. phoned the police to make sure the victim was listed as a missing person.

When Detective Powers interviewed Defendant O., he asked about Defendant O.s relationship with the victim. Defendant O. stated that on one occasion when he and the victim were drinking and arguing, she called the police. He hurt himself once when he got angry and hit the wall, and that past Christmas, when he was drinking during a heated argument, he cut himself accidentally with a kitchen knife. About a month and a half before their most recent breakup, Defendant O. said the victim had thrown him out. Defendant O. admitted hitting the victim but claimed that it was only once after she hit and scratched him and would not let go of his shirt. He also stated that he slapped her once when they were drinking. He claimed that any bruises on her had resulted from his grabbing her hand when she was scratching him. When Detective Powers told Defendant O. that a person matching Defendant O.s description had been seen near the victims car where it was found, Defendant O. stated he had not been there and asked that the witness be shown his photo.

On June 16, 2002, a bloodhound consistently followed a trail from the victims car to the TXI cement plant, which took 11 minutes to walk. That same day, Defendant O. went to the home of the victims best friend (Urquidez) asked her if she knew where the victim was. Defendant O. stated that the victims car had been found with blood in it. When he said how much he loved the victim, Defendant O.s voice cracked; however, he did not cry. The best friend thought his expression of grief was fake.

Susan Navarro (Navarro) sold balls of methamphetamine that she would get from Defendant O. She was interviewed on September 11, 2002, by Ricardo Fuentes, who was an investigator with the Riverside County Sheriffs Department Central Homicide Unit at that time. Navarro stated that she had seen Defendant O.s Honda being cleaned by one of his friends, Mike, in Defendant O.s presence. The car was cleaned inside and outside. The carpets were taken out and shampooed. At trial, Navarro said that she saw dark stains, [l]ike black, dark, like grease, oil on the carpets. However, in her interview with Fuentes, she stated that the stains looked like chocolate milk or like oil or dirt, and the carpet was really dirty.

On June 17, 2002, the victims body was found in a field near the TXI cement plant in Rubidoux, about a mile from her car and 12 miles from her home. She had two gunshot wounds to her head. One bullet had entered behind her right ear and the other in the top area of her head.

Detective Powers opined the victim was shot while in her car as she talked to someone outside the passenger window, and the first shot was the one that entered behind her right ear. The detective testified that in his opinion, when she fell over, her head probably landed in the passenger seat, and she was then shot in the top of her head. It was his opinion that her body was pulled out through the passenger door, but nothing suggested this occurred in the location where her car was found.

Defendant O.s car was seized on June 17, 2002. A fingerprint on the car matched that of Defendant O.s friend, Lucas Murrieta, a mechanic who was working on the car. There were mechanics tools inside the car and black staining on the front carpets, but there was no blood or indication the carpets had been recently removed or installed. The car had no floor mats.

On September 9, 2002, the police apprehended Defendant M., who tried to flee. He had dyed his hair since the murder. He was interviewed at the police station after he waived his Miranda^[5]rights. Defendant M. made the following statements, which were introduced against him alone. He denied knowing anything about the victims murder. He often stayed with his mother and brothers in San Bernardino. When confronted with his mothers statement that he phoned from Rubidoux the night of the murder, requesting a ride, Defendant M. claimed he phoned for a ride back to San Bernardino after he got stranded by a girl.

After telling Defendant M. that a cement plant employee saw him covered in blood, investigators advised Defendant M. to tell them what he knew about the bloody vehicle and the females body found nearby. They suggested that he may only have played a peripheral role in the homicide. Defendant M. then changed his story. He claimed a friend told him someone wanted to talk to him on the phone. When he picked up the phone, the caller asked him to do a favor by getting rid of an abandoned car near the cement plant in Rubidoux. The caller told Defendant M. the motor would be running when he found the car. He knew the caller since they used to drink and pick up girls together. The caller said he would pay Defendant M. later.

Defendant M. claimed that he got a ride to Rubidoux from a friend who just dropped him off. When Defendant M. jumped into the car, he got panicky after feeling the wet, bloody interior. He could not find the keys, so he walked to the cement plant to phone for a ride back to San Bernardino.

On April 3, 2003, David Hussey, an investigator with the Riverside County District Attorneys office, interviewed Defendant O. before arresting him. Defendant O. stated that he and the victim occasionally had problems. He claimed that she was jealous and possessive and accused him of seeing other women. He initially had other girlfriends when he lived with the victim, but he eventually dropped everyone except for her. He again claimed that his hitting her was in response to her attacking him. He denied ever threatening her. He claimed that three days after their last breakup, she called and told him to come over to spend the night, and he did.

Defendant O. admitted making crank calls to the victim. He claimed that he was just joking around like he had done in previous calls to her. He and another person told the victim to watch [her] back with that girl from work; that she was a little tramp and into a type of weird sh--. Defendant O. repeated his earlier statement that they had plans to take their children to see a movie on Saturday, June 15. The victim said she was going to the house of the girl from work, then to her friend Tinas, and after that, he thought she was working. He did not believe that she was dating anyone. Defendant O. denied ever trying to lure the victim out anywhere. He also denied asking a friends niece or anyone else to lure out the victim or any other girl.

Defendant O. claimed he had left his car at Lucass house so that Lucas could adjust the transmission. When Lucas returned the car, the floor mats were missing. Lucas said that someone had stolen them. Defendant O. could not recall Lucass last name or address and did not think that he had a phone.

Regarding Defendant M., Defendant O. claimed that he had known Defendant M. when Defendant M. was a child, but Defendant O. had not really talked to him since the breakup with Defendant M.s sister. Defendant O. stated that he probably talked to Defendant M. when dropping off or picking up the children, but he did not talk to Defendant M. the night of the murder. Defendant O. denied killing the victim or knowing who had done so.

Fingerprints from the victims car did not match either defendant. According to a defense witness, a driver would take 23-27 minutes to drive the 18-mile distance from the spot where the victims body was found to the residence of Defendant M.s sister, where Defendant O. picked up his girls. However, a witness for the prosecution testified that it would take 19-21 minutes to drive the approximate 17-mile distance. The same defense witness also testified that a driver would take 18-22 minutes to drive from the spot where the victims body was found to her apartment, while the prosecutions witness estimated the driving time to be around 15 minutes for the approximate 12-mile distance.

II. ISSUES ON APPEAL

On appeal, Defendant O. raises the following issues:

(1) Whether the trial court prejudicially erred by permitting Defendant M.s police statement to be used as evidence against Defendant O. during closing arguments.

(2) Whether the trial court prejudicially erred by permitting the prosecution to play the entire recording of Navarros police interview.

(3) Whether the trial court prejudicially erred by permitting Urquidez to testify that Defendant O.s expression of grief was fake after the victims car was found with blood inside.

(4) Whether the trial court prejudicially erred by failing to instruct the jury, sua sponte, with CALJIC No. 8.80.1.

(5) Whether section 190.2, subdivision (a)(15), the lying-in-wait special circumstance statute, is void for vagueness.

(6) Whether the imposition of a court security fee violated the ex post facto principles and section 3.

Defendant M. raises the following issues:

(1) Whether the jury instructions erroneously permitted the jury to return a finding of murder based on a conspiracy theory without finding that Defendant M. personally harbored the specific intent that the victim be killed.

(2) Whether there is sufficient evidence to support Defendant M.s conviction for second degree murder.

(3) Whether the redacted version of Defendant M.s statement to the police violated Evidence Code section 356 and denied Defendant M. his due process right to a fair trial.

(4) Whether the cumulative effect of the instruction error and the redacted statement requires reversal of Defendant M.s conviction.

Defendant M. further joins in any arguments raised by Defendant O. to the extent that they favorably affect his judgment.

III. USE OF DEFENDANT M.S POLICE STATEMENT

In his police interview, Defendant M. gave three versions of his connection to the victims car. Because the third version identified Defendant O. as the person who had called Defendant M. asking him to pick up the victims car, the prosecution intended to play only the first two versions. The prosecution wanted to avoid Aranda/Bruton^[6]problems and having two juries. The trial court encouraged and subsequently allowed the prosecution to play the third version and use neutral pronouns for Defendant O.s name. Thereafter, extensive redactions were made to Defendant M.s statement, and the prosecutor acknowledged that he must be scrupulously careful to avoid any reference to Defendant O. After initially objecting under Evidence Code section 356 and requesting that the entire statement be admitted, Defendant O.s counsel agreed to the admission of the redacted statement.

In Defendant M.s third version of his statement, he stated the following about the person (denoted as he) who asked him to pick up the victims car. He called Defendant M. and told him where to pick up the car. He described the car and gave directions to it. He called when it was still light out, perhaps around 6:00 or 7:00 p.m. Defendant M. had seen him earlier in the day and he wanted to know if Defendant M. would be home that night. He told Defendant M. to do what he wanted with the car and to get rid of it. He said the car would be on with the keys inside and that Defendant M. only had to take it. He was disappointed when Defendant M. said that he had not taken the car.

Prior to closing, Defendant O.s counsel lodged a prospective objection to any argument that would attribute [Defendant O.] as having made the phone call to Defendant M. The trial court stated it would not restrict the prosecution from arguing the reasonable inference that the person who called Defendant M. was the killer and that the killer was Defendant O. When Defendant M.s counsel stated that he should be able to make the same argument, the trial court responded: The statement that [Defendant M.] gave was that somebody called him up. Who that somebody was from the circumstances, you can argue who you feel it was under the circumstances of this case. I expect you to. Id be surprised if you dont.

In his initial closing statement, the prosecutor did not argue that Defendant O. was the he who called Defendant M. However, Defendant M.s counsel, in closing, immediately launched into an argument that Defendant M.s big brother had asked him to go pick up the car. Counsel stated: I remember growing up as a boy. I always looked up to my big brother. I mean, where he went, thats where I went. . . . And also because he was five years older than me, if he would tell me to do stupid things, I would do it because I was the little brother. [] . . . [] Isnt that what we have here when it comes to [Defendant M.]? His big brother asked him to do something for him. His big brother asked him to go pick up a car. Defendant M.s counsel argued that Defendant M.s sister had testified that Defendant M. looked up to Defendant O. as a big brother, and that Defendant O., the big brother, called Defendant M. and asked him to get the car. In his rebuttal argument, the prosecutor argued that the big brother had to be Defendant O. The prosecutor stated: Counsel suggests to you the whole thing was about stealing a car, and he talks about the big brother. Who could big brother be on this evidence? Who could it possibly be? It has to be [Defendant O.].

A. Defendant O.s Challenge

On appeal, Defendant O. contends the trial court prejudicially erred in permitting the redacted version of Defendant M.s third police statement to be used as evidence against him during closing arguments.

In considering defendants claim of constitutional error, we find guidance in Justice Epsteins analysis of the applicable law:

In Bruton v. United States, supra, 391 U.S. 123, the Supreme Court held that a defendants Sixth Amendment right of cross-examination is violated by the admission of a nontestifying codefendants confession implicating the defendant. Although a jury may be instructed to disregard the confession in determining the nondeclarant defendants guilt or innocence, the court recognized that there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. (Id. at pp. 135-136 [88 S.Ct. at pp. 1627-1628].) Three years earlier, the California Supreme Court had reached a similar conclusion on nonconstitutional grounds. (People v. Aranda, supra, 63 Cal.2d at pp. 528-530.)

In Richardson v. Marsh (1987) 481 U.S. 200 [107 S.Ct. 1702, 95 L.Ed.2d 176], the United States Supreme Court limited Bruton, holding that the confrontation clause is not violated by the admission of a codefendants confession that has been redacted to eliminate not only the defendants name, but any reference to his or her existence, even if the confession incriminates defendant when considered in conjunction with other evidence. (481 U.S. at p. 211 [107 S.Ct. at p. 1709].) While Bruton required that the admission be powerfully incriminating, Richardson required that it also be incriminating on its face . . . . (481 U.S. at p. 208 [107 S.Ct. at pp. 1707-1708].)

The confession in Richardson was not incriminating on its face, but only became so when linked with evidence introduced later at trial. The case involved the joint murder trial of Clarissa Marsh and Benjamin Williams. At their joint trial, Williamss confession was admitted, redacted to eliminate any reference to Marsh, and to omit all indication that anyone other than Williams and a third person had participated in the crime. In the redacted confession, Williams indicated that he and the third person had discussed the murder in the front seat of the car as they drove to the victims house. The redacted confession contained no indication that Marsh was in the car. Later in the trial, Marsh testified that she was in the backseat of the car, although she also testified that she did not hear the conversation because the radio was on and the speakers were close to her head. Considered with Marshs testimony that she was in the car, Williamss confession could have helped convince the jury that Marsh knew about the murder in advance and therefore knowingly participated in the crime. (Richardson v. Marsh, supra, 481 U.S. at pp. 201-203 [107 S.Ct. at pp. 1704-1705].)

The Supreme Court held that in such a case, where the confession is not incriminating to the nontestifying defendant except when linked with evidence introduced later at trial, the judges instruction to disregard the evidence in assessing the defendants guilt may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. (Richardson v. Marsh, supra, 481 U.S. at p. 208 [107 S.Ct. at p. 1708].)

In People v. Fletcher (1996) 13 Cal.4th 451 . . . our Supreme Court considered a question left open by Richardson whether it is sufficient to avoid violation of the confrontation clause to edit a codefendants extrajudicial statement by replacing references to the nondeclarants name with pronouns or similar neutral and nonidentifying devices. The court concluded that the efficacy of this form of editing must be determined on a case-by-case basis in light of the other evidence that has been or is likely to be presented at the trial. The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun. (13 Cal.4th at p. 456.) (People v. Archer (2000) 82 Cal.App.4th 1380, 1386-1387.)

In reviewing the statement in this case in the context of the evidence admitted at trial, we do not find that either Defendant M.s counsel or the prosecution violated any of the Aranda/Bruton principles during their closing arguments. In the closing argument passages referenced by Defendant O., counsel for Defendant M. suggested that Defendant M. looked upon Defendant O. as a big brother and Defendant M. went to Rubidoux because he got a call from his big brother asking him to go pick up a car. However, independent evidence supported counsels inference that Defendant O. was the big brother, or the he who called Defendant M. Defendant M.s sister testified that Defendant M. looked up to Defendant O. like he would a big brother. The two had a good relationship and hung around together. Defendant O. routinely spoke with Defendant M. when picking up his children at the home of Defendant M.s sister, and Defendant O. had a tendency to involve his acquaintances in his nefarious plans.

As for the prosecutions closing argument, the prosecutor never argued that Defendant O. called Defendant M. to go pick up a car. Instead, the prosecutor argued against such inference presented by Defendant M.s counsel. For Defendant M.s counsel, it was all about stealing a car. However, the prosecutor replied: Counsel suggests to you the whole thing was about stealing a car, and he talks about the big brother. Who could big brother be on this evidence? Who could it possibly be? It has to be [Defendant O.]. Was there any evidence at all about [Defendant O.] trying to steal a car? No, none whatsoever. Had nothing to do with stealing a car. You know that. Clearly, the only potential impact of Defendant M.s redacted statement was indirect. As argued by Defendant M.s counsel and supported by independent evidence, the jury had to use inference to connect the he in the statement to Defendant O. (Richardson v. Marsh, supra, 481 U.S. at pp. 207-208.) As such, we reject Defendant O.s claim that the trial court prejudicially erred in permitting Defendant M.s statement to be used as evidence against Defendant O. during closing arguments.

B. Defendant M.s Challenge

Defendant M. contends that his trial counsels initial objection to the use of the redacted version of his statement was correct. Defendant M.s trial counsel had explained: Your Honor, I have a problem now. Once you start redacting all of this and it doesnt make sense and the jurors start hearing the tape and hearing what my client is saying and its not making any sense, I think we have [an Evidence Code section] 356 problem here. On appeal, Defendant M. argues that [b]y replacing Ocegueda with some guy or the guy, the veracity of [Defendant M.s] statement was undermined because it made it appear that [he] was hiding something (i.e., the identity of the person that asked him to get rid of the vehicle) and, therefore, was more likely to have been involved in the scheme to kill [the victim].

The People urge us to reject this argument as meritless and find that the trial court properly found [Defendant M.s] police interview admissible against [him] under the admissions exception to the hearsay rule (Evid. Code,  1220) since [Defendant M.s] shifting stories throughout the interview suggested he was lying and therefore revealed a consciousness of guilt. The People contend the trial court reasonably decided to redact Defendant O.s name from the statement so as not to violate the Aranda/Bruton rule by independently incriminating Defendant O. We agree with the People.

Evidence Code section 356, in relevant part, provides: Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence. The purpose of [Evidence Code section 356] is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a partys oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which have some bearing upon, or connection with, the admission . . . in evidence. (People v. Arias (1996) 13 Cal.4th 92, 156.)

Here, the admission of the redacted version of Defendant M.s third statement did not violate the principle of completeness set forth in Evidence Code section 356 because there was no misleading impression created by the redaction. According to Defendant M., the redaction of his statement made [him] appear deceitful because one of the principle [sic] factual issue[s] in the trial was the identity of the unnamed guy. We disagree. What made Defendant M. look deceitful was the varying stories he told regarding his presence in Rubidoux at the time and on the evening in question. Thus, there was no argument that Defendant M. was deceitful for failing to identify Defendant O. as the person who phoned him. Instead, the prosecutor pointed out the fact that Defendant M. gave three different versions of why he was near the TXI cement plant immediately after the murder of the victim.

Notwithstanding the above, Defendant M. claims the trial courts challenged redaction violated his constitutional right to present a meaningful defense. However, the general rule remains that the ordinary rules of evidence do not impermissibly infringe on the accuseds [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834.) As the People point out, the redaction of Defendant M.s statement never implicated Defendant M.s right to present a defense, because Defendant M. was not prevented from testifying that Defendant O. was the caller. Moreover, as we noted above, Defendant M.s counsel, in closing, argued that Defendant O. was the caller.

IV. USE OF NAVARROS INTERVIEW

The prosecution called Navarro, Defendant O.s friend who sold balls of methamphetamine for him, as a witness. In questioning her, the prosecution focused on Navarros observations regarding Defendant O.s car being cleaned and the statements of Navarros niece to her (Navarro) concerning Defendant O.s request that her niece lure a girl to Riverside. The prosecutor also confronted Navarro with her statements to investigators on September 11, 2002.

Later, the prosecution asked to play the entire recording of Navarros police interview because it was replete with prior consistent and inconsistent statements and did not support Navarros testimony that the police had pressured her into making statements. Counsel for Defendant O. objected to the request. After further discussion, the court stated: I would have designated her as hostile but you never sought that. But under the circumstances, given the manner in which she testified in the trial, you can play the tape.

There are some inconsistencies between Navarros statement and her testimony. Although Navarro testified that she did not know if Defendant O. and Mike, the person who cleaned the car, were best friends or if she had previously indicated they were, her statement indicates they were best friends. Navarro testified that she saw dark stains on the cars carpets, but she could not recall her statement indicating the stains looked like chocolate milk. She testified the car was cleaned before she knew of the victims death, and she did not recall telling the police it was before the victims body was found. When confronted with her statement, Navarro said the car was cleaned before the body was found, but she implied that she said this because the police suspected her daughter, Danielle Jacobs, of committing the murder.

Regarding Elaina Sabalas conversation with Navarro, initially Navarro testified that she did not recall the conversation. Navarro testified she told the police that two days before the arrest of her daughter, Danielle Jacobs, Sabala stated that Defendant O. had asked her to lure a girl out, and that Sabala was calm and appeared to be joking. Navarro then testified she did not recall telling the police the conversation with Sabala occurred before her daughters arrest, and she could not recall specifically when the conversation occurred. In her police statement, Navarro stated Sabala was shaken up and scared over defendants request to pick up the girl, and Sabala had told Navarro about it a day or so after Defendant O.s request and a few days before Sabala went to jail.

Defendant O. claims that Navarros statement contains far more than inconsistencies with Navarros testimony and covers unrelated subjects. He notes that in her statement, Navarro indicated she found out from Defendant O. that the victim was missing. Navarro described Defendant O. as looking like someone who was wondering how he could have done something like that, i.e., kill the victim. She further opined that Defendant O. knows a little too much about what happened. Thus, on appeal, Defendant O. contends the trial court prejudicially erred by overruling his objection to playing the entire recorded police interview of Navarro. He argues that only those portions of Navarros statement that were inconsistent with her testimony should have been admitted. (Evid. Code,  770, 1235; People v. Morgan (1978) 87 Cal.App.3d 59, 75 [defendants exculpatory statement which conflicted with the victims testimony could not be admitted as nonhearsay evidence tending to show a consciousness of guilt because the falsity of the statement had not been established by the defendants own statements], disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498.)

The People urge this court to reject Defendant O.s contention on the grounds that [b]esides containing statements inconsistent with Navarros trial testimony . . . the entire redacted interview was relevant to Navarros credibility as a witness by showing the basis of her fear of incriminating [Defendant O.] and therefore the existence or nonexistence of her bias, interest or other motive when testifying. . . . The People point out that the record shows the prosecution had to impeach Navarro throughout Navarros direct examination and that such impeachment was necessary regarding (1) Navarros observations when she saw Defendant O.s car being cleaned; (2) whether Defendant O. once said that the victims father and brother had held a gun to his head over a bad drug deal; (3) whether Navarro had reason to fear Defendant O. and his brother; (4) Navarros relationship to her niece, Sabala; (5) whether Navarro advised her daughter to avoid testifying; and (6) whether Navarro feared retaliation against herself or her family for testifying Also, on cross-examination, Navarro claimed that she was under the influence of methamphetamine.

As the People note, in wanting to use Navarros recorded statement, the prosecution properly noted that it showed Navarros reluctance to incriminate Defendant O., while simultaneously rebutting her claim at trial that the police pressured her into making incriminating statements against him. The entire recording revealed Navarros basis for her reluctance to implicate Defendant O. (Evid. Code, 780, subd. (f); People v. Burgener (2003) 29 Cal.4th 833, 868-870.) Navarro stated she was scared. Although she thought Defendant O. wanted to kill her, she worried about Defendant O.s brother, who had a gun, was not afraid to use it, and wanted to shoot someone. Navarro was also afraid of what Defendant O. would, or could, do.

Although Defendant O. was concerned about Navarros repeated opinion during her recorded statement that he knew too much, the People note that such opinion helped to illustrate the basis of Navarros anxiety regarding Defendant O. and her reluctance to testify against him. (Evid. Code,  780, subd. (f); People v. Burgener, supra, 29 Cal.4th at pp. 868-870.) We agree.

Emphasizing Navarros recorded statements concerning Defendant O.s knowledge that (1) the victim went to a club with a girl who did not like him; (2) someone had threatened the victim over the phone; (3) the victim was missing; (4) the victim was shot twice; and (5) the victim was going up to a car the night she was killed, the People point out that the jury already heard testimony to the same effect from others. Also, the People suggest the jury could have inferred that some of Navarros statements amounted to an attempt to deflect suspicion to other perpetrators. Again, we agree. No more incriminating evidence came out of Navarros recorded statement than was introduced by other means. Thus, we reject Defendant O.s challenge to the admission of Navarros recorded statement.

V. ADMISSION OF OPINION THAT DEFENDANT O.S GRIEF SEEMED FAKE

Over objection, Urquidez was allowed to testify that Defendant O.s expression of grief upon hearing that the victims car had been found with blood inside seemed fake.^[7] Defendant O. contends the trial court erroneously admitted this speculative lay opinion testimony. (Evid. Code, 210, 702, & 801.) In support of this claim, he cites to such cases as People v. Melton (1988) 44 Cal.3d 713, 744 . . . for the proposition that [l]ay opinion about the veracity of particular statements by another is inadmissible on that issue. Melton and similar cases involved lay opinion from those who had no personal knowledge of the facts. Such opinions are of little assistance in deciding the credibility of testimony by percipient witnesses who do have personal knowledge. There is a difference between asking a witness whether, in his opinion, another is lying and asking that witness whether he knows of a reason why another would be motivated to lie. (People v. Chatman (2006) 38 Cal.4th 344, 381.) Thus, [a] lay witness may testify to an opinion if it is rationally based on the witnesss perception and if it is helpful to a clear understanding of his testimony. (People v. Farnam (2002) 28 Cal.4th 107, 153.) The decision whether to permit lay opinion rests in the sound discretion of the trial court. (People v. Medina (1990) 51 Cal.3d 870, 887.)

Here, we are unable to say that the trial court abused its discretion in admitting the challenged lay witness opinion testimony. As the People note, Urquidezs opinion that the crack in Defendant O.s voice was fake helped the jurors understand her testimony. She based her opinion on the following: (1) Defendant O. immediately talked about how much he loved the victim when Urquidez asked him why he had not come by on Friday night; however, he displayed no emotion; (2) he did not cry; (3) he had not been crying because his eyes were not red or puffy; (4) Urquidez had seen her own children fake crying when trying to get attention; (5) Urquidez had also seen grieving people cry; and (6) her previous experiences and current perceptions of Defendant O. incited her to tell him that she thought he was faking it. Her opinion about Defendant O.s state of mind at the time he reported that the victims car had been found was admissible because it was based on Urquidezs perceptions and helped to understand her testimony better. (Evid. Code,  800, subd. (a); see also People v. Kennedy (2005) 36 Cal.4th 595, 621 [witnesss opinion about defendants state of mind on the night of the murder was admissible because it was based on her perceptions and helped to better understand her testimony].)

Indeed, the defense solicited Urquidezs lay opinion that Defendant O. was not dating material, that the victim saw something good in him, and that, based on his actions, he was attempting to make a pass at Urquidez when he confronted her about not being dating material. The defense also solicited Danielle Jacobss opinion that when she called the victim on behalf of Defendant O., it was all a joke. In any event, the defense was allowed to cross-examine Urquidez and expose the basis for her opinion to the jury, and the jury was instructed that it need not accept a lay opinion but should give it the weight, if any, to which it is entitled. Under these facts, the admission of Urquidezs opinion, even if error, could not have been prejudicial. (People v. Hinton (2006) 37 Cal.4th 839, 911.)

VI. CALJIC NO. 8.80.1

Defendant O. contends the trial court erred in failing to instruct the jury with CALJIC No. 8.80.1: The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true.^[8] He argues that such failure to give CALJIC No. 8.80.1 constitutes federal Constitutional error, and the error must be assessed under [the Chapman^[9]standard] as the error impacted the jurys fundamental task of assessing the special circumstance allegation. According to Defendant O., the failure to instruct with CALJIC No. 8.80.1 left the jury with the impression that they could find the special circumstance true even if it was not proven beyond a reasonable doubt. The People disagree, pointing out that when considered as a whole, the jury instructions left no such impression.

For purposes of argument, we will assume error in the omission of CALJIC No. 8.80.1. Having made such assumption, we note that an instructional omission may be harmless when other instructions adequately pinpoint the burden of proof. (People v. Ayers (2005) 125 Cal.App.4th 988, 998.) Here, the court began by admonishing the jury to consider the instructions as a whole and in light of all the others. (CALJIC No. 1.01 [Instructions to be Considered as a Whole].) One of the others was the standard reasonable doubt instruction telling jurors that the prosecution had the burden of proving defendants guilty beyond a reasonable doubt, which was defined. (CALJIC No. 2.90 [Presumption of Innocence Reasonable Doubt Burden of Proof].) The trial court emphasized the burden of proof in the instruction regarding the sufficiency of circumstantial evidence (CALJIC No. 2.01 [Sufficiency of Circumstantial Evidence Generally]), in the instruction that stated the defendant may rely on the state of the evidence in deciding whether or not to testify (CALJIC No. 2.61 [Defendant May Rely on State of Evidence]), in the instructions on the alibi defense (CALJIC Nos. 4.50 [Alibi] & 4.51 [Alibi Aider and Abettor or Co-conspirator]), and in the instruction on lesser included offenses (CALJIC No. 17.10 [Conviction of Lesser Included or Lesser Related Offense Implied Acquittal First]).

Additionally, the jury was given CALJIC No. 8.81.15.1 (Special Circumstances − Murder By Lying In Wait) wherein they were told: To find that the special circumstance referred to in these instructions as murder by means of lying in wait is true, each of the following facts must be proved: [] 1. The defendant intentionally killed the victim; and [] 2. The murder was committed by means of lying in wait. Specifically, when instructing the jury that the defendant could rely on the state of the evidence, the trial court referenced the prosecutions burden to prove beyond a reasonable doubt every essential element of the charge against him. We agree with the People that the word charge necessarily included the lying-in-wait special circumstance charge.

Moreover, the People note that neither defendant disputed the evidence showing the killer murdered the victim by means of lying in wait. Instead, defendants contested the claim that they were the murderers or the ones who participated in the crime. Thus, viewing the instructions as a whole, with the trial record, we are unable to find that the jury believed it could return a true finding on the special circumstance absent proof beyond a reasonable doubt. In addition to the numerous references in the instructions of the prosecutions burden, defense counsel also discussed such burden during closing argument. Counsel for Defendant O. argued: The bottom line is this: In a criminal case the prosecution is obligated to bring in evidence that proves beyond a reasonable doubt the individual thats charged in the case is guilty. Counsel for Defendant M. argued: Youre to look at the evidence in this case the evidence to see whether or not [the prosecution] proved each and every element of a first-degree lying-in-wait murder beyond a reasonable doubt. Given the above, we are unable to find that the jury believed it could return a true finding on the special circumstance absent proof beyond a reasonable doubt. Accordingly, we conclude that the trial court erred by failing to instruct the jury with CALJIC No. 8.80.1, but the error was harmless beyond a reasonable doubt.

VII. CONSTITUTIONALITY OF LYING-IN-WAIT SPECIAL CIRCUMSTANCE

Defendant O. contends that because there is no meaningful distinction between the lying-in-wait special circumstance and murder by means of lying in wait, section 190.2, subdivision (a)(15) is unconstitutionally vague, in violation of the Fourteenth Amendment. Specifically, Defendant O. notes that prior to the 2000 amendment to section 190.2, subdivision (a)(15), the lying-in-wait special circumstance was upheld against a challenge that it was unconstitutionally vague in Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 907-908, based on the temporal distinction that the special circumstance required murder while lying in wait, not just by means of lying in wait. However, since the statute has been amended to eliminate the temporal distinction, Defendant O. argues there is no longer any distinction between the lying-in-wait special circumstance and murder by means of lying in wait. We disagree.

As our colleagues in Division Four of the First District noted, Proposition 18 (Stats. 1998, ch. 629,  2, enacted as Prop. 18, approved by voters, Primary Elec. (Mar. 7, 2000) eff. Mar. 8, 2000) changed the word while lying in wait in the special circumstance to by means of, conforming that part of the definition with lying-in-wait first degree murder, arguably to essentially eliminate the immediacy requirement that case law had placed on the special circumstance. [Citation.] [However,] [t]he special circumstance requirement that the defendant intentionally kill the victim continues to distinguish the special circumstance from first degree murder under a lying-in-wait theory. Lying-in-wait first degree murder requires only a wanton and reckless intent to inflict injury likely to cause death. [Citations.] (People v. Poindexter (2006) 144 Cal.App.4th 572, 580, fn. 10.)

Because section 190.2, subdivision (a)(15) includes an element not expressly required for first degree murder, we find that it is not void for vagueness. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149; People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 307.)

VIII. COURT SECURITY FEE

Section 1465.8, subdivision (a)(1) provides: To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses . . . .^[10] This statute was enacted on August 2, 2003, and became operative on August 17, 2003. (Stats. 2003, ch. 159, 25.) Defendant O. committed the underlying offense on June 14, 2002, and was sentenced to state prison in September 2005. He argues that because he committed the original offense before the effective date of section 1465.8, the imposition of the $20 court security fee pursuant to that statute must be stricken because it violates ex post facto provisions of the United States and California Constitutions and it cannot be applied retroactively pursuant to section 3.

Citing People v. Wallace (2004) 120 Cal.App.4th 867 (Wallace), Defendant O. concedes that application of section 1465.8 to conduct preceding its effective date does not violate ex post facto principles.^[11] However, Defendant O. argues that Wallace wrongly concluded that because section 1465.8 was not a punitive measure, it did not violate ex post facto and antiretroactivity principles. He notes that the Supreme Court has granted review in two cases raising this issue and the issue of retroactivity. (People v. Alford (2006) 137 Cal.App.4th 612, review granted on ex post facto issue May 10, 2006, S142508, supplemental briefing ordered on retroactivity issue; People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415, consideration deferred pending disposition in Alford.) Thus, he contends that we should reject Wallaces analysis and strike the security fee from the judgment on ex post facto grounds. We reject this contention for the following reasons.

As applicable here, the ex post facto clauses prohibit legislation that makes more burdensome the punishment for a crime, after its commission. (People v. McVickers (1992) 4 Cal.4th 81, 84 (McVickers), quoting Collins v. Youngblood (1990) 497 U.S. 37, 42.) In this case, the $20 assessment created a burden on defendant that arose only after he committed his offense. Ex post facto principles, however, are implicated only when legislation creates a more burdensome . . . punishment. (McVickers, supra, at p. 84.) Thus, whether the challenged fee can be imposed on defendant depends on whether it constitutes punishment.

The determination of whether legislative action constitutes a punishment involves a two-part inquiry. First, we must ascertain the Legislatures intent in passing the law. If the expressed legislative intent is to punish, ex post facto prohibitions operate to bar retroactive application. (Smith v. Doe (2003) 538 U.S. 84, 93.) If, however, the intention [is] to enact a regulatory scheme that is civil and nonpunitive, then no ex post facto problem arises, unless the statutory scheme is so punitive either in purpose or effect as to negate [the States] intention to deem it civil. (Id. at p. 92.)

Applying these principles here, the $20 court security fee assessed under section 1465.8 is not a punitive measure. (Wallace, supra, 120 Cal.App.4th at pp. 871-878.) The fees collected are specifically earmarked for the Trial Court Trust Fund. ( 1465.8, subd. (d).) The express legislative purpose of section 1465.8 is nonpunitive: To ensure and maintain adequate funding for court security. ( 1465.8, subd. (a)(1).) As discussed in Wallace, legislative history demonstrates that the statute is part of a nonpunitive civil regulatory scheme designed to shore up the finances of the court system. (Wallace, supra, at pp. 871-878.) These fees apply to civil litigants as well as criminal defendants, and were prompted by budgetary concerns. (Ibid.) The assessment is labeled a fee throughout the statute, as opposed to a penalty or fine ( 1465.8, subd. (b)), and does not increase based on the severity of the crime committed. Accordingly, the imposition of the fee does not violate the constitutional protection against ex post facto laws.

We also reject the argument that the imposition of the security fee violates section 3, which provides, No part of [the Penal Code] is retroactive, unless expressly so declared. In section 1465.8, subdivision (a)(1), the Legislature stated its intent that a $20 fee be imposed on every conviction. (Italics added.) Because Defendant O. was not convicted of the offenses in this case until afte