Filed on 8/30/17 P. v. Van CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

In 1995, Norma Esparza told her ex-boyfriend, defendant Gianni Anthony Van, that someone had raped her. Defendant, Esparza, and a group of people kidnapped Gonzalo Ramirez, the person Esparza later identified as the rapist. The following day, someone discovered Ramirez’s dead body just off the freeway. Santa Ana police arrested defendant for the murder. But at a preliminary hearing, just before Esparza was to testify against defendant, she disclosed that the couple had secretly married in Las Vegas and she invoked the marital privilege. The People dismissed the charges. Esparza later divorced defendant and moved out of the country. The case went cold for 17 years.

In 2012, Santa Ana police were notified that Esparza was on an international flight into Boston. The police went to Boston and arrested Esparza. She ultimately agreed to a six-year prison term in exchange for her testimony. A jury convicted defendant of first degree murder and found true a felony-murder special circumstance. The trial court sentenced him to life in prison with no possibility of parole.

On appeal, defendant claims that two jury instructions were inaccurate. Defendant also claims that the trial court improperly excluded evidence and that the cumulative prejudice of these errors require reversal.

We disagree and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

In March 1995, Esparza was a student at Pomona College. One night she went to the El Cortez, a nightclub in Santa Ana, where she met and danced with Ramirez. The following day, Ramirez raped Esparza in her dorm room. Esparza did not report the rape to the police. [1]

One or two weeks later, Esparza told defendant, her ex-boyfriend whom Esparza described as jealous and controlling, that someone named “Gonzalo” had raped her. Defendant was angry and wanted Esparza to go back to the nightclub to identify the person that had allegedly raped her. Esparza thought defendant wanted to “rough up” Ramirez, but did not want to kill him.

The Kidnapping and the Murder

On April 15, 1995, defendant and Esparza, defendant’s close friend Kody Tran and his wife Diane Tran, Shannon Gries and his girlfriend Julie Rojas, all met up at Kody Tran’s transmission shop and then went to the El Cortez nightclub. [2] There was a plan in place to identify and kidnap Ramirez, and take him back to the transmission shop.

Once the group arrived at the nightclub, Ramirez was there with his friend Noel Reyes. Esparza pointed out Ramirez to defendant. At about 1:30 a.m., Ramirez left the nightclub in his truck with Reyes. Gries followed behind Ramirez’s truck in a van; with him were Rojas and Tran. They planned to stage a traffic accident with Ramirez’s truck. Defendant and Esparza followed right behind the van in defendant’s car.

When Ramirez stopped at a red light, Gries rammed into the back of Ramirez’s truck with the van. Ramirez pulled to the side of the road and got out of his truck. As Ramirez was inspecting the back of his truck, Gries and Tran got out of the van and started punching Ramirez. Defendant got out of his car and also punched Ramirez several times. Ramirez’s friend Reyes ran to find help because he saw the attack and he thought defendant had a gun or a weapon in his waistband. Defendant, Gries, and Tran dragged Ramirez inside of the van and drove away. During the attack, Rojas got into defendant’s car with Esparza; they drove to a bar in Costa Mesa.

Meanwhile Reyes found a security guard at a nearby hotel; when they returned to the accident scene only Ramirez’s truck was there with its engine still running. One of Ramirez’s shoes was in the gutter. Police later found defendant’s broken wristwatch at the scene along with some blood on the ground.

Defendant, Tran, and Gries took Ramirez to Tran’s transmission shop in Costa Mesa. In a loft area of the shop, they tied Ramirez to a ceiling by chains; they suspended his hands and his arms over his head; his legs were off the floor. Gries had a gun. At some point, Esparza, Rojas, and Diane Tran arrived at the shop. Esparza saw that Ramirez had blood all over his torso and face. When defendant asked Esparza if this was the man that had raped her, Esparza started sobbing. Tran told Diane Tran that “they were going to take [Ramirez] to a place, beat him up, and [defendant] was going to kill him.” After overhearing a discussion among the group about killing Ramirez, Esparza begged them not to do it. Defendant then took Esparza home and returned to the shop.

The Investigation and the Aftermath

The following morning, a passerby discovered Ramirez’s dead body in a portion of undeveloped land off the 405 freeway. There was no eyewitness testimony as to Ramirez’s death, but the police surmised that he was killed at this location. A blue cloth, like the kind found in a towel dispenser used in gas station restrooms at that time, was wrapped around Ramirez’s face and neck. Ramirez’s shoes were missing; one sock was dirtier than the other. Ramirez had a broken jaw and multiple skull fractures, he had contusions and subdural hemorrhages. There were multiple chopping injuries to his torso caused by a very sharp instrument, such as a meat cleaver. He had defensive wounds on his arms. Ramirez had essentially bled to death.

Police searched Tran’s transmission shop and found a small sample of Ramirez’s blood. Inside the shop was a towel dispenser that dispensed the type of cloth that had been found wrapped around Ramirez’s body. A janitorial supply service noticed that one of the rolls was missing. The carpet from Tran’s van had been removed after the murder. Police interviewed Esparza, who told them that she had told defendant that Ramirez had raped her. Police interviewed defendant, who denied knowing anything about Ramirez’s death, and lied about his friendship with Tran.

The day after the police interviewed defendant, he and Esparza went to Las Vegas and got married so that she would not have to testify against defendant. Esparza did not tell any of her family members or her friends about the marriage. At the preliminary hearing, Esparza invoked the marital privilege and did not testify. Defendant was released from jail and the case went cold. Esparza eventually divorced defendant and moved out of the country. In October 2012, Esparza flew back into the United States and was arrested.

The Defense

Several character witnesses testified that defendant was a calm, nonviolent person. Defendant testified the Esparza told him that she had been raped by a person she had met at a nightclub, someone named “Gonzalez.” Defendant said that he was angry about it, but not “rageful.” Defendant said that he encouraged her to call the police.

Defendant later told Tran about the rape. Defendant did not ask Tran to do anything about it. Tran asked defendant, “Don’t you want to know what this guy looks like?” Defendant said, “No.” Tran came up with a plan for a group to go to the El Cortez nightclub so that Esparza could identify Ramirez. Initially defendant did not want to go, but he agreed because Tran was persistent. Defendant “thought that it would just be something like okay, we saw the guy. Let’s leave. That was it.” They never discussed kidnapping and assaulting Ramirez.

On the night of April 15, 1995, defendant picked up Esparza. They did not want to go to the nightclub, but they agreed to go because of Tran’s persistence. Defendant drove Esparza to the transmission shop where they met up with Tran, Gries, and Rojas. When they left to go to the nightclub, Esparza rode with Tran in the van, Gries and Rojas drove separately, and defendant followed in his car. When they arrived, everybody went into the nightclub except for defendant because Tran told him, “You’re not going in.”

Defendant had been waiting in the parking lot for about an hour, when he saw the group running out of the bar. Defendant followed Tran’s van out of the parking lot, but he lost sight of it. When Tran happened upon the van again, it was parked and its hazard lights were on. Defendant saw a truck stopped in front of the van; it looked like there had been a fender-bender. Defendant saw Tran and Gries with two other men defendant did not recognize; they were all standing outside of the vehicles.

Defendant saw Tran and Gries “throwing a lot of punches” at the two men. Defendant was in shock, but he got out of his car, and tried to stop it. Gries opened the side door of the van and threw one of the men inside. Tran and Gries got into the van and drove away. Esparza and Rojas had been sitting in Rojas’s car and drove away. Defendant was in shock; he got back into his car and drove home. Defendant considered calling the police, but did not because he was “confused at the whole thing.”

After 30 or 40 minutes, defendant drove to the transmission shop to see if anyone was there. Defendant knocked on the door and Tran opened it. When defendant asked Tran what happened, he told defendant to shut up. Tran was “amped” and excited. Inside of the shop, in a loft area, defendant saw Gries next to a man with his hands tied over his head who was covered in blood. After 20 minutes or so, Rojas and Esparza eventually arrived at the shop. Esparza said, “Yes, it’s him.” Defendant took Esparza home and then returned because he was ordered to do so.

When defendant returned to the shop, Tran told defendant to get in the van. Defendant “saw the body of a man wrapped up, laying in the back of the van.” Defendant believed the man was dead. Tran drove to a dead-end street off the freeway, opened the sliding door of the van, and dropped the body on the ground. While driving back to the shop, Tran told defendant not to tell anyone. Defendant followed Tran’s orders because he was afraid of him. The next day, defendant told Esparza that they had let Ramirez go. After the police interviewed defendant, Tran told defendant and Esparza they had to get married, so they did. They never lived as a married couple. Tran committed suicide in 2012.

Trial Proceedings

In 2013, a grand jury filed an indictment accusing defendant, Gries, and Diane Tran of murdering Ramirez, along with a felony-murder special circumstance (kidnapping), and a firearm enhancement solely as to Gries. (Pen. Code, §§ 187, 190.2, subd. (a)(17).)[3] Diane Tran testified at defendant’s trial; she had signed a cooperation agreement without an explicit promise of a reduced sentence; she later pleaded guilty to voluntary manslaughter in exchange for a four-year sentence. (§§ 192, 12022, subd. (a).) Rojas also testified at trial; she had been assured that she would not be charged, but she was not given an immunity agreement. Esparza, who was separately charged, pleaded guilty to voluntary manslaughter in exchange for her trial testimony and a six-year sentence.

A jury found defendant guilty of first degree murder, and found true the felony-murder special-circumstance enhancement. The trial court sentenced defendant to life in prison without the possibility of parole. Gries later pleaded guilty to murder and was sentenced to prison for 25 years to life.

II

DISCUSSION

Defendant contends: a) the trial court did not accurately instruct the jury on how to treat the testimony of an accomplice (Rojas); b) the court did not accurately instruct the jury regarding the special circumstance allegation (murder during the commission of a kidnapping); c) the court improperly excluded evidence (two prior threats by Tran and his suicide, which all occurred in 2012); and d) the cumulative effect of these alleged errors was prejudicial.

We shall address each contention in turn.

A. The Accomplice Testimony Jury Instruction

Generally, “the testimony of all witnesses is to be judged by the same legal standard.” (People v. Howard (2008) 42 Cal.4th 1000, 1021.) However, when an accomplice testifies against a defendant, a trial court must admonish the jury that such testimony is to be viewed with caution; that is, a jury is to treat an accomplice’s testimony differently than the testimony of other witnesses. (People v. Guiuan (1998) 18 Cal.4th 558, 571 (conc. of Kennard, J.).) The instruction must also tell the jury that it cannot convict the defendant based on an accomplice’s testimony alone; there has to be some corroborating evidence—however slight—that tends to connect the defendant to the crime. (Ibid.)

On appeal, defendant argues that the pattern jury instruction regarding accomplice testimony as to Rojas (Gries’s girlfriend, who was present at the kidnapping and the transmission shop, but was not charged with any crime), was imprecise and therefore “the jury could not have reasonably found Rojas was an accomplice” to the murder. (CALCRIM No. 334.) That is, according to defendant, the jury would have treated Rojas’s testimony just like the testimony of any other witness. We disagree. Further, even if we were to assume error, it was not prejudicial because there corroborating evidence beyond Rojas’s testimony—much more than slight—that tended to connect defendant to the murder.

1. There was evidence suggesting Rojas was an accomplice.

In reviewing the correctness of jury instructions, appellate courts assume jurors are intelligent people capable of understanding and correlating all of the instructions given to them. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.) As such, we review the correctness of a challenged jury instruction within the context of the trial court’s instructions taken as a whole, not in isolation. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.)

“A conviction [cannot] 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 . . . .” (§ 1111.) The rationale for the rule is that an accomplice may testify in expectation of immunity; therefore, an accomplice’s testimony should be viewed with caution. (See People v. Warner (1969) 270 Cal.App.2d 900, 911-912.) An accomplice is “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.” (§ 1111.)

An accomplice can either be a direct perpetrator of a crime, or an aider and abettor. (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) An aider and abettor may be held directly liable for any crimes that he or she intentionally aided and abetted; an aider and abettor may also be held indirectly liable for any crimes that are a “natural and probable consequence” of the crime that was intentionally aided and abetted. (People v. Prettyman (1996) 14 Cal.4th 248, 260-263.) Further, in a conspiracy, each coconspirator is liable for the acts of any of the other coconspirators that are a reasonable and probable consequence of the conspiracy. (In re Hardy (2007) 41 Cal.4th 977, 1025-1026.)

A trial court has a sua sponte duty to instruct on the principles of law governing accomplice testimony, including the need for corroboration, where the evidence suggests that a witness could be an accomplice. (People v. Rangel (2016) 62 Cal.4th 1192, 1221-1222.) “When a person is not an accomplice as a matter of law, a defendant has the burden of proving by a preponderance of the evidence that a witness was an accomplice in the crime charged against the defendant.” (Id. at p. 1222.)

Here, the trial court instructed the jury that if they found that Ramirez was murdered, then Esparza, Tran, Diane Tran and Gries were accomplices as a matter of law. (CALCRIM No. 335.) That instruction further told the jury that that the testimony or statements of those four witnesses should be viewed with caution and needed corroboration, however slight.[4] (CALCRIM No. 335.) Defendant does not challenge the correctness of this accomplice testimony instruction. He only challenges the accomplice testimony instruction concerning Rojas.

Rojas testified at trial that she was part of the group that went to the nightclub on April 15, 1995, but she was not present when the group developed a plan to kidnap and/or murder Ramirez. Rojas said she saw Esparza point out a person as her rapist at the nightclub, and she left in the van, but she was just present as Gries’s girlfriend. Rojas said that while she was in the van, she overheard Gries and Tran discuss staging an accident, so they could get Ramirez out of his truck and beat him up. After the accident, Rojas testified that she got into the car with Esparza, and drove to a bar. According to Esparza, at the bar she told Rojas that she didn’t want this to happen, and Rojas replied: “Oh, I thought you did. . . . [W]ell, it makes me feel protected, it make me feel that guys are gonna think twice before . . . they do anything to us.” After leaving the bar, Rojas said that she drove Esparza to the transmission shop. She said that upstairs at the shop she briefly saw that a person was tied up. Rojas said that her last recollection was overhearing Esparza scream either “That’s him” or “That’s not him.” Rojas testified that at that time she was using methamphetamine. The prosecution did not charge Rojas with any crimes. Prosecutors assured Rojas she would not be prosecuted, but she was not offered an immunity agreement.

In sum, the evidence showed that Rojas was present before and during the identification of Ramirez at the nightclub. Rojas was present at the staged traffic accident and drove Esparza to a bar afterwards. Rojas also was present at the transmission shop where she saw Ramirez tied up. Rojas also appeared to have approved of the actions of defendant, Gries, and Tran. Therefore, although the prosecution did not charge Rojas with any crimes, there was at least some evidence suggesting that she may have been an accomplice to Ramirez’s kidnapping and eventual murder.

Thus, the trial court instructed the jury according to the appropriate pattern jury instruction: “Before you may consider the statement or testimony of Julie Rojas as evidence against the defendant, you must decide whether Julie Rojas was an accomplice. A person is an accomplice if she is subject to prosecution for the identical crime charged against the defendant.” (CALCRIM No. 334.) The instruction told the jury that if they found Rojas to be an accomplice, then her testimony needed to be viewed with caution and required corroboration, however slight.

2. The trial court’s instructions accurately communicated to the jury that it could have found Rojas to be an accomplice to the murder.

Defendant does not argue that the trial court improperly instructed the jury that it was their job to determine if Rojas was an accomplice. Rather, he takes issue with the wording of CALCRIM No. 334, and its definition of an “accomplice.” Again, the instruction states: “A person is an accomplice if she is subject to prosecution for the identical crime charged against the defendant.” (CALCRIM No. 334, second italics added.) Defendant’s argument is somewhat complicated and hard to follow. In sum, defendant claims that the evidence only showed, at most, that Rojas aided and abetted a kidnapping. Defendant infers that since the only crime he was charged with was murder, the jury could not have found Rojas subject to prosecution for the identical crime charged against him; therefore, the wording of the instruction did not allow the jury to find Rojas to be an accomplice. Thus, defendant concludes that the court committed error. We disagree.

First off, we note that: “‘“‘“f the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request an [i]additional or qualifying instruction in order to have the error reviewed.”’”’” (People v. Welch (1999) 20 Cal.4th 701, 757.)

In this case, defendant does not argue that CALCRIM No. 334 is incorrect as to the law. Indeed, the pattern instruction precisely states the statutory definition of an accomplice: “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.” (§ 1111, italics added.) Further, defendant did not object to the standard jury instruction at trial, nor did he request an additional or qualifying instruction. (People v. Welch, supra, 20 Cal.4th at p. 757.) Thus, defendant has forfeited this argument on appeal. Nevertheless, we will review the merits of the assertion, in order to address defendant’s related ineffective assistance of counsel claim. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [court addressed forfeited issue thereby forestalling ineffective assistance of counsel claim].)

Defendant is correct that CALCRIM No. 334 told the jurors that they could not find Rojas to be an accomplice unless she was subject to prosecution for the identical crime as him (murder). But even if we were to assume the evidence showed only that Rojas intentionally aided and abetted a kidnapping, the jury could have found Rojas subject to prosecution for murder (and thus was an accomplice) under a natural and probable consequences theory or under a felony-murder theory. (See People v. Russo (2001) 25 Cal.4th 1124, 1132 [jury need not agree on the theory of defendant’s guilt].)

Within CALCRIM No. 334, after telling the jury that an accomplice is a person “subject to prosecution” for the same crime that defendant was charged with (murder), the trial court instructed the jury that: “Someone is subject to prosecution if he or she personally committed the crime or if; [¶] 1. She knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 2. She intended to, and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime.” The court also separately instructed the jury: “Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” (CALCRIM No. 401.)

The prosecution presented two theories of liability for murder: murder with malice aforethought and felony murder. Within the malice murder instruction, the trial court instructed the jury on indirect aider and abettor liability under the natural and probable consequences theory: “An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.” As far as the felony-murder theory, the court instructed the jury: “To prove that defendant is guilty of first degree murder under this theory, the People must prove that: [¶] 1. The defendant committed kidnapping; [¶] 2. The defendant intended to commit kidnapping; [¶] AND [¶] 3. While committing kidnapping, the defendant caused the death of the other person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.” (CALCRIM No. 540A.)

Here, we presume that the jurors correlated and understood the trial court’s instructions. That is, if the jury found that Rojas intentionally assisted, facilitated, or otherwise encouraged Ramirez’s kidnapping, we presume that the jury understood that it could then find Rojas subject to prosecution for murder (the identical crime as defendant). The jury could have found Rojas subject to prosecution for murder as an aider and abettor either under the natural and probable consequences theory (the murder was a natural and probable consequence of the kidnapping), or under the felony-murder theory (the murder occurred during the kidnapping).

Further, if the jury found that Rojas was subject to prosecution for murder under either of these two theories, then the jury would have found Rojas met the legal definition of an “accomplice” and would have treated her testimony accordingly. That is, the jury would have viewed Rojas’s testimony with caution, and would have required corroborating evidence, however slight, in order to convict defendant of murder. Thus, the trial court’s instruction correctly stated the law and did not constitute error.

3. Even if we assume error, it was not prejudicial because there was sufficient evidence at trial—much more than slight—that corroborated Rojas’s testimony.

A trial court’s failure to adequately instruct on accomplice testimony is harmless if there “is sufficient corroborating evidence in the record.” (People v. Lewis (2001) 26 Cal.4th 334, 370.) “The evidence ‘is sufficient if it tends to connect the defendant to the crime in such a way that as to satisfy the jury that the accomplice is telling the truth.’” (Ibid.) “‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.’” (People v. Williams (2008) 43 Cal.4th 584, 636.)

Although one accomplice may not corroborate another accomplice, a defendant’s admissions may provide the necessary corroboration. (People v. Williams (1997) 16 Cal.4th 635, 680.) “Error in failing to instruct the jury on consideration of accomplice testimony at the guilt phase of a trial constitutes state-law error, and a reviewing court must evaluate whether it is reasonably probable that such error affected the verdict.” (People v. Williams (2010) 49 Cal.4th 405, 456.)

Here, there was evidence beyond Rojas’s testimony that tended to connect defendant to the crime. Defendant testified that Esparza had told him that Ramirez had raped her, providing a motive for defendant to commit murder. Defendant also testified that Esparza identified Ramirez at the nightclub and that he was present at the staged traffic accident. Further, based on Reyes’s identification testimony, and the discovery of defendant’s broken wristwatch at the scene, there was evidence that he was directly involved in Ramirez’s kidnapping. Defendant also put himself in the transmission shop, where Ramirez’s blood was later found. Finally, defendant admitted his sham marriage to Esparza; therefore, it is a reasonable inference that he did this in order to allow Esparza to invoke the marital privilege, which demonstrates his consciousness of guilt.

In sum, even if we assume instructional error regarding Rojas’s testimony, it is not reasonably probable that the error affected the outcome of the trial. There was other evidence presented at trial—much more than slight—that corroborated Rojas’s testimony.[5]

B. The Kidnapping Felony-Murder Special-Circumstance Instruction

Defendant argues that the trial court inaccurately instructed the jury as to the felony-murder special-circumstance allegation (a murder committed during a kidnapping). We disagree.

If a jury finds a defendant guilty of first degree murder, the defendant may be subject to the death penalty or life in prison without the possibility of parole if the jury finds one or more alleged statutory special circumstances true. (§190.2, subd. (a).) One of those special circumstances is when the murder is committed while the defendant is engaged in committing a designated felony (a felony-murder special circumstance), and one of those designated felonies is the crime of kidnapping. (§190.2, subd. (a)(17)(B).)

At the time of the kidnapping and murder of Ramirez, there was a rule in place that in order for the kidnapping felony-murder special circumstance to apply, the felony could not be “merely incidental to the murder.” (See People v. Green (1980) 27 Cal.3d 1, 61-62 (Green).)[6] In Green, the defendant took his wife to a remote area by force where he killed her. (Id. at p. 37.) During the murder, the defendant “took his wife’s clothes, rings, and purse as part of a deliberate effort to leave her unidentifiable so that he would not be connected with the murder if her body was found.” (Id. at p. 55.) The jury convicted defendant of murder, robbery, and kidnapping, and found true both a kidnapping and a robbery felony-murder special circumstance. (Id. at pp. 47-48.) The California Supreme Court reversed the robbery felony-murder special circumstance because this “was not in fact a murder in the commission of a robbery but the exact opposite, a robbery in the commission of a murder.” (Id. at p. 60.)

The California Supreme Court has since restated the Green rule as follows: “‘[in order] to prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.’ [Citation.]” (People v. Horning (2004) 34 Cal.4th 871, 907 (Horning), italics added.) When a felony-murder special circumstance is alleged, if the evidence supports a reasonable inference that the felony was committed merely to facilitate the murder, then the court has a duty to instruct the jury that the felony must be independent of the murder. (Green, supra, 27 Cal.3d 1, 61; People v. Clark (1990) 50 Cal.3d 583, 609.)

Here, Esparza testified that she thought defendant wanted to “rough him up,” but did not want to kill Ramirez. Further, Esparza testified that it was only after they arrived at the transmission shop, that one of the men asked whether they should kill Ramirez. This evidence suggests that the kidnapping was committed independent of the murder.

However, Diane Tran testified that when she visited Esparza in her dorm room along with defendant and Tran, Esparza disclosed that someone had raped her. Diane Tran said that defendant was very angry, and on the drive home from the dorm room defendant said that he wanted to kill the rapist. Diane Tran also testified that after the group had kidnapped Ramirez, Tran told her at the transmission shop that “they were going to take him to [another] place, beat him up, and [defendant] was going to kill him.” This evidence suggests that the kidnapping may have been committed merely to facilitate the murder.

Given the conflicting evidence, the trial court fulfilled its duty and instructed the jury as to the Green rule. The court restated the rule using the pattern jury instruction: “in order for this special circumstance to be true, the People must prove that the defendant intended to commit kidnapping independent of the killing. If you find that the defendant only intended to commit murder and the commission of kidnapping was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.” (CALCRIM No. 730, italics added.) Defendant did not object to the instruction at trial.

On appeal, defendant only takes issue with the wording of the pattern jury instruction, CALCRIM No. 730. He claims that it was inaccurate and inadequate. He claims that the instruction is “an abbreviated shorthand of case law” that “failed to convey the substance of the Green requirement” and that it “does not make linguistic sense.” But defendant did not request any clarifying language or any correction to the pattern jury instruction at trial; therefore, he may not now “complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete.” (People v. Lang (1989) 49 Cal.3d 991, 1024.) A defendant’s failure to either object to the proposed instruction as written, or request that the trial court add clarifying language, forfeits this claim on appeal. [7] (People v. Hart (1999) 20 Cal.4th 546, 622.) Defendant’s claim fails on the merits as well.

Generally, “[a]n instruction is considered flawed only if there is ‘“a reasonable likelihood that the jury misconstrued or misapplied the words” of the instruction. [Citation.]’” (People v. King (2010) 183 Cal.App.4th 1281, 1316.) Specifically, as far as the Green rule itself, the California Supreme Court has clarified that: “The point we made in [Green], is that if the felony was merely incidental to the murder—as the evidence showed it was in Green—no separate felony-based special circumstance exists. We have used various phrasings in explaining this requirement . . . but we have never suggested . . . that any precise language was required to explain the concept to the jury. . . . Several ways exist to explain the requirement.” (Horning, supra, 34 Cal.4th at pp. 907-908, fn. omitted.) Indeed, the California Supreme Court has stated that the former instruction concerning the Green rule, CALJIC No. 8.81.17, “accurately states the law[,]” but that the current version, CALCRIM No. 730—the language used by the trial court in this case—“is clearer.” (People v. Boyce (2014) 59 Cal.4th 672, 697, fn. 14 (Boyce).)

Defendant argues that the Boyce court’s approval of the language used in CALCRIM No. 730 to explain the Green rule is “obiter dictum” and therefore it “is not binding” on this court. We agree. However, “even if it is, dicta from the California Supreme Court is highly persuasive and should generally be followed.” (Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 393-394, fn. 2.)

We do not think that it is reasonably probable that the jury misconstrued the words in CALCRIM No. 730; the instruction concisely explained the concept from Green, supra, 27 Cal.3d 1, 61-62. That is, that the purpose of the kidnapping needed to be independent of the killing and not merely incidental to the commission of the murder. (CALCRIM No. 730.) We also agree with the California Supreme Court that the wording of CALCRIM No. 730 is both accurate and clear. (Boyce, supra, 59 Cal.4th at pp. 697-698, fn. 14.)

Defendant cites a federal circuit court opinion for the proposition that a trial court must instruct the jury that the Green rule is an element of the felony-murder special circumstance. (Pensinger v. Chappell (9th Cir. 2015) 787 F.3d 1014, 1025-1028.) However, defendant also recognizes that our Supreme Court has disagreed with this proposition. (See People v. Monterroso (2004) 34 Cal.4th 743, 767.) Of course, we are required to follow the holding of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see also People v. Memro (1995) 11 Cal.4th 786, 882 [lower federal court opinions are not binding on California courts].)

In sum, we find no error regarding the felony-murder special-circumstance jury instruction.

C. Exclusion of Evidence

Defendant argues that the trial court abused its discretion by excluding domestic violence threats allegedly made by Tran in 2012, as well as evidence concerning his 2012 suicide. We disagree.

Generally, all relevant evidence is admissible. (Evid. Code, § 351.) However, a “court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352, italics added.)

A trial court is given wide latitude in its discretion to admit or exclude evidence; the decision is reviewed under the deferential abuse of discretion standard. (People v. Peoples (2016) 62 Cal.4th 718, 748.) “A trial court’s exercise of discretion under section 352 will be upheld on appeal unless the court . . . exercised its discretion in an arbitrary, capricious, or patently absurd manner.” (People v. Thomas (2012) 53 Cal.4th 771, 806.) In exercising its discretion, “courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (People v. Wheeler (1992) 4 Cal.4th 284, 296-297, fn. omitted.)

Here, throughout his testimony, defendant generally claimed he was fearful of Tran, who purportedly intimidated defendant into taking whatever actions he may have taken. Defendant sought to introduce evidence concerning Tran’s violence to explain his fear, as well as the reluctance of Diane Tran and Rojas to contact the police. Specifically, defendant sought to introduce evidence concerning two domestic violence threats allegedly made by Tran against Diane Tran in 2012, as well as the events surrounding his 2012 suicide.

As to the 2012 threats, the trial court opined in a pretrial hearing that: “Our experience has shown us oftentimes some of the biggest, dare I say, bullies in domestic violence situations are absolute wimps outside of the closed door of the family. So I don’t find the crossover there.” During trial, the court questioned defendant’s counsel: “So 17 years later, [Tran is] involved in an allegation of domestic violence where he’s making threats against his -- against Ms. Tran, that that’s relevant to show conduct 17 years earlier? I’m trying to follow you, make sure that we’re clear on that.” Counsel responded: “Right. I am seeking it. Yes, your honor.” The court excluded the two incidents because they were “too remote in time.” The court also determined that the two threats were “too dissimilar because of the domestic violence aspect.”

We find that the trial court did not make its ruling in an arbitrary or capricious manner. Rather, the court made a thoughtful decision that the 2012 incidents were too remote in time. Further, even if we disagreed, we are not permitted to substitute our discretion for that of the court. (People v. MacArthur (1954) 125 Cal.App.2d 212, 219 [“Whether or not evidence is too remote is for the trial court which is vested with a wide discretion in making such decisions”].) Similarly, we defer to the court’s judgment that Tran’s 2012 threats in a domestic violence situation are dissimilar from other threats he may have made in 1995. That is, the domestic violence threats were not particularly probative as to whether defendant and others were fearful of Tran at the time of Ramirez’s murder.

As far as Tran’s 2012 suicide, defendant sought to introduce the evidence in a pretrial in limine hearing. The trial court opined that the suicide was too remote in time and “I’m not sure that self-inflicted suicide is a character trait of violence toward others.” Counsel responded that: “It’s one of those things that depending upon how things play out, I think that could -- there could be an attached relevance to it.” The court said: “So my initial indication is to exclude it. But obviously, along with all of these rulings, they’re subject to change in evidence. Counsel are free to bring it back before the court in that regard.”

However, counsel never pressed for a definitive ruling during the trial. Thus, defendant has forfeited the issue for purposes of appeal. (See People v. Morris (1991) 53 Cal.3d 152, 195 [defendant failed to preserve an evidentiary issue for appeal because he did not press the trial court for a definitive ruling], disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) In any event, the trial court did not abuse its discretion. That is, the court’s reasons for excluding Tran’s 2012 suicide were thoughtful and reasoned rather than arbitrary and capricious.

In sum, the trial court did not abuse its discretion by excluding evidence regarding Tran’s 2012 domestic violence threats and 2012 suicide.

D. Cumulative Error

Defendant argues that the prejudicial effect of cumulative error requires reversal. We disagree.

“In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself.” (In re Reno (2012) 55 Cal.4th 428, 483.) However, the rejection of each of a defendant’s individual claims “cannot logically be used to support a cumulative error claim [where] we have already found there was no error to cumulate.” (Ibid.; see People v. Williams (2013) 56 Cal.4th 165, 201.)

Here, we have analyzed each of defendants’ individual claims and have determined that none of them constitute error. Having found no errors to cumulate, we reject defendant’s separate claim of cumulative error.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.