P. v. Barajas

Filed 6/21/07 P. v. Barajas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Brian S. McCarville, Judge. Affirmed as modified with directions.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant was charged with the first degree murders of Sue and Jim Moller (Pen. Code,  187, subd. (a);^[1]counts 1 & 2), with special circumstances of multiple murder ( 190.2, subd. (a)(3)), murder in the commission of a burglary (id., subd. (a)(17)(G)), murder in the commission of a robbery (id., subd. (a)(17)(A)), and murder of a witness (id., subd. (a)(10)). Defendant was also charged with one count of first degree residential burglary ( 459; count 3) and two counts of first degree robbery ( 211, counts 4 & 5). In each count, it was alleged that a principal was armed with a firearm. ( 12022, subd. (a).)

The robbery charges and robbery special circumstance allegation were dismissed following the close of the Peoples case based on insufficient evidence. ( 1118.1.) A jury found defendant guilty as charged of the first degree murders and burglary in counts 1, 2, and 3, respectively, and found the multiple-murder special circumstance, burglary-murder special circumstance, and armed allegations true.^[2] The murder of a witness

allegations were found not true. Defendant was sentenced to life without parole (LWOP) plus one year,^[3]and appeals.

Defendant was prosecuted as an aider and abettor to each of the charged crimes. The evidence showed that on the evening of Friday, September 20, 2002, defendants cousin, Ernestina Bernal, shot and killed the Mollers in their home, then stole a Sues purse, Jims wallet, and travelers checks from the home. Defendant testified he accompanied Bernal to the scene of the crimes, but he maintained he had no knowledge that Bernal intended to commit murder, robbery, or burglary, and no intention of aiding, facilitating, or encouraging the commission of the crimes. The principal issue at trial was whether defendant aided and abetted the charged crimes.

II. SUMMARY OF CONTENTIONS AND CONCLUSIONS

Defendant first contends insufficient evidence supports his convictions as an aider and abettor to the murders and burglary in counts 1, 2, and 3. He maintains the evidence of his guilt is based solely on his presence at the scene of the crimes, and on an inference of his guilt based solely on his lies to police during his interviews with police. We reject this contention. Substantial evidence shows defendant aided and abetted Bernals commission of the murders and the burglary.

Second, defendant contends the trial court prejudicially erred in admitting, over his objection, evidence suggesting he had taken and failed a polygraph examination. Specifically, he complains the trial court violated Evidence Code section 351.1 and abused its discretion under Evidence Code section 352 in admitting a videotape of his interviews with police, showing him seated next to a polygraph chair, and showing a sphygomometer in the interview room. Defendant did, in fact, take a partial polygraph examination between the time of the videotaped interviews, but the videotapes were sanitized to redact all verbal references to the polygraph examination. We find no violation of Evidence Code section 351.1 or abuse of discretion in admitting the videotape evidence, because the videotapes did not suggest defendant had just taken or failed a polygraph examination.

Third, defendant contends the trial court committed three prejudicial instructional errors, specifically: (1) in giving a flight instruction (CALJIC No. 2.52) based in part on evidence Bernal fled to Mexico shortly after the crimes were committed; (2) in instructing the jury on the definition of burglary without sua sponte specifying or defining all possible target offenses of the burglary (e.g., theft, assault with a firearm, murder); and (3) in failing to instruct the jury sua sponte on the merger doctrine relative to the burglary-felony-murder instruction. We find no prejudicial instructional error.

Lastly, defendant raises two claims of sentencing error: (1) a parole revocation fine was erroneously imposed; and (2) the abstract of judgment erroneously reflects that his sentence on count 2 was imposed consecutively rather than concurrently to his sentence on count 1. The People and we agree with these claims. We modify the judgment accordingly and remand the matter with directions. In all other respects, we affirm the judgment.

III. SUMMARY OF EVIDENCE

A. Prosecution Evidence

The following facts are stated in the light most favorable to the judgment. (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Bernal worked as an unlicensed realtor and mortgage loan officer under the name Lisa Alvarez. By mid-September 2002, Bernal either had obtained or was in the process of obtaining fraudulent loans on behalf of her various clients, including defendant. The fraud entailed submitting false income and other documentation through Statewide Mortgage, a mortgage broker, to a mortgage lender.

Defendants loan was approved and funded before his lender discovered the fraud. Escrow on the purchase of defendants $78,900 home closed on August 7, 2002. In connection with his loan application, defendant submitted false W-2 forms, a false social security number, false credit references, false employment information, and a fraudulent prior residence address and landlord information. He also failed to disclose an outstanding $23,000 child support judgment; he represented there were no outstanding judgments or liens against him.

Statewide Mortgage was wholly owned and operated by Sue Moller, her husband Jim Moller, Sues daughter, Sheri Murray, and Murrays husband. Jim held the brokers license for the company. Sheri was the president of the company and oversaw its loan processing operations. The loan processing entailed gathering income and other information from borrowers to verify their loan eligibility. Sue processed loans through the company on behalf of Bernal. By September 2002, Sue had processed 40 to 50 loans for Bernal, including defendants loan. Sheri testified that her mother became angry with her in June 2002, when she questioned the authenticity of the employment information in defendants loan file. Sue told Sheri to submit the loan to the lender anyway.

By mid-September 2002, Sheri discovered that fraudulent documents had been submitted on roughly twenty of Bernals loans, including defendants loan. Sheri contacted the San Bernardino County District Attorneys Office, which promptly commenced a criminal fraud investigation. After an investigator, Robert Schreiber, contacted Jim and Sue, both of them began cooperating with the investigation. Defendants loan was one of the loans under investigation. Defendant faced foreclosure, the loss of his home, and criminal penalties. Bernal stood to lose a total of $9,000 in deposits paid by her clients, plus lost commissions and criminal penalties.

On September 19, Schreiber arranged to have Sandy Viera, the officer manager for Statewide Mortgage, make a pretext call to Bernal. The purpose of the call was to elicit incriminating statements or other information from Bernal. Two calls were made, and both calls were tape-recorded. During the first call, which lasted about five minutes, Viera told Bernal that investigators were looking into her loans, and asked Bernal about the documentation in some of the loan files. In response to Vieras questions, Bernal admitted she had submitted fraudulent information in connection with some of her loans, including defendants loan. She also indicated she did not mind being investigated, but was upset because the Mollers were not returning her calls. At that point, Bernals tone began to change and she ended the call. During the second call, which lasted about 30 seconds, Bernal told Viera she didnt know anything and promptly ended the call.

The Mollers were scheduled to leave on a cruise on Saturday, September 21. Around noon on Friday, September 20, Bernal asked a coworker, Manuel Grijalva, for permission to borrow his car, a Ford Taurus. After she obtained permission to use Grijalvas car, but before she picked up the car, she visited defendant. She showed defendant her gun, made him promise not to tell anyone about it, and told him she wanted to kill Sue. She expressed anger toward Sue because of the fraud investigation and Sues ignoring her phone calls. Defendant asked Bernal what she wanted him to do.

On the evening of September 20, Bernal, armed with a firearm and accompanied by defendant, drove to the Mollers neighborhood in her own vehicle to see whether they were home. Then, shortly before 8:00 p.m., she called Grijalva and told him she was on her way to pick up his Taurus. Between 8:00 and 8:30 p.m., Bernal and defendant arrived at Grijalvas house in Bernals Ford Explorer. While Bernal was talking with Grijalva, defendant moved Bernals gun from Bernals Explorer to Grijalvas Taurus.

Bernal and defendant then left in the Taurus. Bernal was driving. At around 9:30 p.m., Bernal and defendant returned to the Mollers neighborhood. They parked about a block away from the Mollers house and walked toward the house, which was on a corner lot. They proceeded to walk to the back of the property, where they jumped over a fence and climbed up an ice plant-covered embankment. They went to the French doors on the side of the house, which led into the living room. The French doors were open but were covered by a screen which was closed and locked. The Mollers were sitting in the living room, watching television, as defendant and Bernal walked up to the screen door.

Bernal fired three bullets through the screen door. Two bullets hit Jim in the elbow and abdomen, causing him to fall off the sofa and onto the floor. A third shot went through the love seat next to where Sue had been sitting, and apparently grazed Jims right leg. Sue had been perusing through their travel documents in preparation for their cruise the next day, but stood up when the shots were fired. Bernal and defendant then tore through the screen door and entered the house. The Mollers were ordered to lie down on the floor. Bernal then shot both Sue and Jim in their heads at close range, killing them instantly.

Bernal quickly rummaged through the Mollers belongings and took Sues purse, Jims wallet, and approximately $2,000 in travelers checks. Bernal and defendant left the Mollers house through the front door. Bernal dropped defendant off at his home, and returned Grijalvas Taurus to him around 11:00 p.m.

About 8:30 p.m., the Mollers neighbors, David and Shell Rae Hoehn, were outside their house walking Davids mother to her car. As they did so, they noticed a suspicious car parked across the street from their house. David looked inside the car and saw no one there. Between 8:45 and 9:30 p.m., the Hoehns heard gunshots when they were inside their house. They both heard a rapid series of three or four shots, a short pause, then another rapid series of several more shots.

After Bernal dropped defendant off at his house, defendant took his girlfriend and children and went to his mothers house, where they stayed until the afternoon of the following day, Saturday, September 21. He told police he stayed away from his house because he feared Bernal would go there and kill him. On Sunday, September 22, defendant, his family, and Bernal went to San Diego and spent the day there. On Monday, September 23, Bernal fled to Mexico.

B. Defendants Statements to Police

Defendant was interviewed by police throughout most of the day on September 30, 2002. Shortly after the interviews began, defendant was arrested, waived his Miranda^[4]rights, and agreed to continue being interviewed. Most of the interviews were videotaped and played for the jury. At one point between interviews, defendant took a partial polygraph test. The polygraph test was not shown to the jury and all references to it were redacted from the videotapes and transcripts of the interviews. At another point, officers took defendant to the scene of the crimes. This portion of the interview was audiotaped and played for the jury.

In the interviews, defendant initially denied he was present at the Mollers house on the night of the murders or that he knew who murdered the Mollers. He suspected, however, that Bernal was involved because, on the day of the murders, she told him about the fraud investigation and that several of her escrows had been frozen. He later admitted he had gone with Bernal to Grijalvas house to pick up Grijalvas car, but he claimed Bernal just drove by a casino, then took him back home.

Defendant then told the officers that, on the day of the murders, Bernal told him about the pretext call, that Bernal knew the call had been recorded, and that Sue had been avoiding her. Defendant said he drove by the Mollers office on the morning of September 20. He saw an undercover police car or smash car parked in front, and several people speaking to a person who appeared to be an investigator. Defendant told Bernal what he had seen.

Defendant then claimed he had never been to the Mollers house and did not know where they lived. But after police told defendant they knew he was at the Mollers house on the night of the murders, he changed his story. He first admitted that he and Bernal drove by the Mollers house in Bernals Ford Explorer. Then they picked up Grijalvas car and returned to the Mollers house in Grijalvas car. He claimed, however, that he stayed in Grijalvas car while Bernal and two other men, who met her there, went to the Mollers house for approximately 30 minutes. He said Bernal did not have a gun. When Bernal returned, she did not tell defendant what she was doing or had done at the Mollers house. She took defendant home and gave him $40, his usual fee for doing handyman work for Bernal. At this point, defendant [swore] to God he was telling the truth.

The officers then told defendant that neighbors of the Mollers had seen Grijalvas car parked in front of their house with no one in it. At this point, defendant changed his story again. He said he walked with Bernal to the back of the Mollers house and waited outside while she climbed up the embankment to the house. While he was waiting outside, he heard gunshots and a woman screaming. Believing Jim had shot Bernal, he ran to the house. Then, he saw that Bernal had a gun. A man was lying on the floor saying he had been shot, and a woman was standing with papers in her hands. He walked away, then heard more shots. Bernal gave defendant a bag or whatever, and they walked out the front door. Bernal told him she had to kill [th]em.

Defendant also told the officers that, earlier on the day of the murders, Bernal had been talking about how the Mollers owed her money, had frozen 18 of her escrows without telling her, and were avoiding her calls. She told defendant she ought to . . . smoke those motherfuckers.

During the final interview, interviewer Robert Heard told defendant he was in hot water and in trouble, and it was his last chance to tell the truth about what happened. Defendant said he knew Bernal was angry with Sue and appeared serious when she had talked about smok[ing] her. Still, when he and Bernal went to the Mollers house, he believed Bernal was only going to deliver some papers to Sue.

This time, defendant claimed he did not see that Bernal had a gun until she jumped over the fence behind the Mollers house. But he later admitted moving her gun from her Explorer to Grijalvas Taurus, and saw she was carrying it as they walked toward the Mollers house. In response to Heards question, defendant admitted it crossed his mind they were in for a . . . rumble, but he still did not believe Bernal was going to kill anyone. Instead, he thought Bernal was only going to demand payment from the Mollers for the money she was owed, and he asked her what she wanted him to do. In response, Bernal told defendant he was not going to do anything.

C. Defense Evidence

Defendants defense was that Bernal duped him into going with her on the night of the murders, he knew nothing of her intention to murder the Mollers or steal from them, and he did nothing to aid, facilitate, or encourage her commission of the crimes.

Defendants mother and cousin testified that Bernal always carried a gun, bragged about carrying a gun, and often spoke about killing or smoking people. The cousin testified that Bernal had a domineering personality, acted [l]ike one of the tough guys, and was abusive and controlling toward defendant.

Defendant testified on his own behalf. He also said Bernal was verbally abusive and bossy toward him, and often carried a gun. Although he worked for a carpet cleaning company, he relied on Bernal for additional handyman jobs. Bernal helped him purchase his house and directed him to sign several of the fraudulent documents in connection with his mortgage loan. He signed the documents because he wanted to move out of his mothers house and provide a home for his girlfriend and children. He did not know that most of the documents submitted in connection with his mortgage loan were fraudulent until he signed them.

Consistent with his statements to police, defendant testified he knew Bernal was angry with Sue because of the fraud investigation, but he claimed he knew nothing about Bernals intentions to kill Sue, rob her or her husband, or burgle their house. He explained that Bernal came to his house on the day of the murders armed with a firearm. She was upset because the Mollers would not answer her phone calls, and she said she wanted to smoke Sue.

Early on the evening of Friday, September 20, Bernal called and told defendant she had another handyman job for him. She picked defendant up at his house and explained she was going to pick up a car from Grijalva, because Grijalva owed her money. Defendant initially believed Bernal wanted him to drive her car or Grijalvas car from Grijalvas house to her house.

After defendant and Bernal arrived at Grijalvas house, Bernal told defendant to move her stuff from her car to Grijalvas car. Defendant did as he was told, knowing Bernals stuff consisted of her sweater, sandals, and a pouch containing her gun. Bernal then got in the drivers seat of Grijalvas car and told defendant to get in the passenger seat. When defendant tried to ask questions, Bernal told him to shut up.

As they were leaving Grijalvas neighborhood, Bernal said she was going to go pay somebody a visit. Based on this statement and Bernals earlier statements concerning the Mollers, defendant believed Bernal was going to hit up or shakedown the Mollers, meaning she was going to ask them to pay her the money they owed her and explain what was going on with the fraud investigation. When defendant and Bernal arrived in the Mollers neighborhood, Bernal parked down the street from the Mollers house, got out of the car, and told defendant to come with her. Defendant got out of the car. As they were walking down the street, he realized Bernal was armed with her gun.

Defendant and Bernal approached the driveway gate of the Mollers house. As defendant was trying to open the gate, Bernal began to walk around the corner of the house to the back. Defendant followed her, asked her what she was doing, and told her to go knock on the front door. She did not respond. After she reached the back of the house, defendant again asked her what she was doing. Again, he was told to shut up.

Bernal jumped over a fence and walked up an ice plant-covered slope toward the house. Defendant stayed on the street below the house. As he was waiting on the street, he saw that Bernal had gone to the French doors on the side of the house. He thought he heard Bernal say Sue and he heard yelling or mumbling. The next thing he heard was one or two gunshots, and someone screaming. Defendant fell down, got up, climbed over the fence, and went up to the house. He believed the Mollers may have shot Bernal.

When he got to the house, he did not know what to do and he feared that he, too, would be shot. So he went to the porch area in front of the house and started pacing back and forth. Then he saw Bernal popping her head out of the French doors on the side of the house. She had her gun in her hand, and told defendant to [c]ome here. Defendant followed Bernal into the living room. There, he saw a man lying on the floor and a woman standing. The man was saying he had been shot.

Defendant said he swore at Bernal and again demanded to know what she was doing. Again, Bernal told him to shut up. At this point, Bernal was holding her gun in both hands, looking at defendant, and walking toward the man lying on the floor. Defendant was frightened. He believed Bernal was going to shoot him or the man on the floor. He walked backwards and stepped outside the French doors. From outside, he heard what he believed were two more shots.

Bernal then ordered defendant to come back in the house. He knew that the man and woman had been shot, because it was quiet. He stood near the front door and concentrated on the front door, while Bernal quickly went through the house. Then, defendant and Bernal walked out through the front door and left in Grivaljas car.

Bernal dropped defendant off at his house. On the way there, Bernal kept telling defendant they had to be best friends from now on. She put $40 on the seat of the car, defendants usual fee for doing a handyman job. Defendant took the money because he believed Bernal would kill him if did not accept it. He took his girlfriend and children to his mothers house, where they spent the night, because he believed Bernal was going to come back to his house and kill him. Bernal had keys to his house, and a back window of the house was broken.

On Sunday, September 22, two days after the murder, defendant, his girlfriend and children, and Bernal went to San Diego for the day. Defendant explained he went because he had to pretend in front of [Bernal] [that] [he] wasnt scared. Earlier on Sunday, or the day before, he returned from the grocery store to find Bernal sitting on his front porch.On cross-examination, defendant admitted he and Bernal were friends and often socialized together.

IV. DISCUSSION

A. SubstantialEvidence Supports Defendants Convictions as an Aider and Abettor to the Murders and Burglary

Defendant contends insufficient evidence supports his convictions for the murders and the burglary because the evidence does not support a reasonable inference that he aided and abetted Bernals perpetration of the crimes. We disagree.

1. Standard of Review

In considering a claim that insufficient evidence supports a verdict, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence ‑‑ that is, evidence which is reasonable, credible, and of solid value ‑‑ from which a jury comprised of reasonable persons could have found the defendant guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the jury could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal is unwarranted merely because we believe the evidence might reasonably justify a contrary conclusion. (People v. Thomas (1992) 2 Cal.4th 489, 514.)

2. Aider and Abettor Liability

The law imposes criminal liability on all principals to a crime. ( 31; People v. Nguyen (1993) 21 Cal.App.4th 518, 529.) Principals include persons concerned in the commission of the crime, whether they directly commit the act constituting the offense, or aid and abet in its commission . . . . ( 31.) A person aids and abets in the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 560-561.) Intent is rarely susceptible of direct proof, but may be inferred from all the facts and circumstances. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) A persons mere presence at the scene of a crime, even if he or she knows or suspects a crime is occurring or is about to occur, is by itself insufficient to sustain a conviction based on aiding and abetting. (People v. Nguyen, supra, at pp. 529-530, citing People v. Durham (1969) 70 Cal.2d 171, 181.)^[5]

3. The Natural and Probable Consequences Doctrine

Under the natural and probable consequences doctrine, [An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury. [Citation.] Thus . . . a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the natural and probable consequence of the target crime.  (People v. Prettyman (1996) 14 Cal.4th 248, 261.)^[6]

4. Analysis and Conclusions

Defendant claims the evidence fails to support a reasonable inference that he aided and abetted Bernals commission of the murders or the burglary. Specifically, he claims the evidence fails to show he knew of Bernals criminal intent, or that, with such knowledge, he committed any act with the intent of aiding, facilitating, or encouraging her commission of the crimes. He maintains the evidence shows only that he was present at or near the Mollers house when the crimes were committed. He further argues that the prosecution relied solely on his consciousness of guilt as evidenced by his repeated lies to police to fill the gaps in the evidence and convince the jury he acted as an aider and abettor to the crimes.

We disagree with defendants view of the evidence. Based on all the evidence, the jury could have reasonably inferred that defendant, with knowledge of Bernals intent to murder and steal from the Mollers, accompanied Bernal to the Mollers house and intentionally aided her in the commission of the crimes. The evidence also permitted an inference that defendant, knowing that Bernal intended to steal from the Mollers, accompanied her to the Mollers residence with the intent of aiding and abetting the theft and that the murders were a natural and probable consequence of the theft given that Bernal was armed with a firearm and very angry with the Mollers.

Furthermore, defendants consciousness of guilt, as evidenced by his lies to the police, is by no means the only evidence supporting the convictions. The evidence of defendants consciousness of guilt, as evidenced by his lies to the police, only bolstered the inference the jury could have drawn, based on all the evidence, of defendants knowing and intentional involvement in the crimes.

(a) Defendants Knowledge of Bernals Intent

Several hours before the crimes were committed, Bernal told defendant about the pretext phone call and fraud investigation, and that she stood to lose $9,000 in deposits because 18 of her escrows had been frozen. Defendant drove by the Mollers office and told Bernal he saw a smash car parked in front and people speaking to a person who appeared to be an investigator, confirming Bernals suspicion that the Mollers were cooperating against her in the fraud investigation. Bernal told defendant she wanted to hit up the Mollers, which defendant understood as meaning she wanted to demand they account to her for the money she believed they owed her, and explain their role in the fraud investigation. Bernal also told defendant she wanted to smoke or kill those motherfuckers, meaning Sue and Jim.

The evidence also showed that defendant knew Bernal was serious about her intentions, notwithstanding his and his relatives testimony that Bernal always carried a gun and often talked about smoking people. Indeed, defendant admitted that Bernal seemed serious when she said she wanted to smoke Sue. Defendant then accompanied Bernal to the Mollers house, knowing she was armed with a firearm and knowing she was serious about her intentions to murder the Mollers and take what money she could find as compensation for her losses.

(b) Defendants Actionsin Aiding Bernals Commission of the Crimes

Contrary to defendants claim there is no evidence he did anything to intentionally aid Bernals commission of the crimes, the evidence shows he played an intentional role. First, the evidence showed Bernal needed and relied on defendants assistance in committing the crimes. Defendant told police he was aware that Jim was an ex-marine. He also knew that Jim had in the past insisted that Bernal speak to him when she called Statewide Mortgage and asked to speak to Sue. Bernal was no more than five feet two inches tall, and female. Defendant and Bernal grew up together, socialized together, and were close. Defendant knew the Mollers were cooperating in the fraud investigation against Bernal and that Bernal stood to lose substantial sums of money as a result.

Moreover, the physical evidence of how the crimes were committed, together with the testimony of the Mollers neighbors, the Hoehns, and defendants pretrial statements to police and his trial testimony, all showed that defendant intentionally assisted Bernal in the commission of the crimes. The Hoehns heard a series of three or four shots, a short pause, then another series of shots. A total of six bullets were fired in the house, all from the same gun. There were three bullet holes in the screen door, indicating the first three shots were fired from outside the house.

The first set of shots must have been the shots that hit Jim in his abdomen, elbow, and leg. The medical examiner testified that Jim was alive when he suffered these wounds, but the bullet wounds to the Mollers heads killed them instantly. The pooling of blood on the floor near the Mollers heads, the absence of blood spatter on the walls or furniture, and the nature of the bullet wounds to the Mollers heads showed the Mollers must have been lying on the floor when they were shot in their heads. Sue also had a bullet wound on her right hand, indicating her hand was shot away from her head as she was trying to protect herself. Thus, the second series of shots must have been the shots that killed the Mollers. And, according to the Hoehns, the second series of shots was fired very shortly after the first series.

Defendants version of events is categorically inconsistent with the Hoehns testimony there was only a short pause between the two series of shots. According to defendant, he was waiting outside on the street below the Mollers house when he heard the first series of shots. He fell to the ground, got up, jumped over the fence, ran up the slope to the house, and paced back and forth on the walkway until he saw Bernal pop her head out of the screen door. At that point, Bernal waved her gun at him and directed him into the house. There, he saw Sue standing in the living room, and Jim lying on the floor saying he had been shot. Frightened, he backed out of the house through the screen door. Then, Bernal shot and killed the Mollers. Thus, according to defendant, several minutes must have passed between the first and second series of shots.

The jury was entitled to believe the Hoehns testimony and disbelieve defendants story that he was outside waiting on the street and that several minutes must have passed between the two series of shots. Indeed, the jury was entitled to infer that defendant was not waiting on the street when the first shots were fired. Rather, he was with Bernal, standing right outside the screen door, for the purpose of providing her with backup or muscle in dealing with the Mollers. After the first shots were fired and Jim was disabled, he and Bernal then tore through the screen door^[7]and ordered the Mollers to lie down on the floor where Bernal shot them in their heads. Defendant and Bernal then took Sues purse, Jims wallet, and travelers checks and quickly got out of the house.

Indeed, the evidence showed Sues purse, Jims wallet, and $2,000 in travelers checks were missing from the house, but the house was not ransacked. Defendant and Bernal left the house through the front door; they did not waste time or risk being seen by going out the way they came in. Thus, the jury could have reasonably inferred that Bernal and defendant planned to murder the Mollers and take as much money as they could while getting in and out of the house as quickly as possible.

In sum, the evidence as a whole supports a reasonable inference that defendant aided and abetted the commission of the murders and burglary as charged in counts 1, 2, and 3. The jury could have reasonably inferred that defendant was not merely a passive and unwitting bystander present at the scene, but that he, with knowledge of Bernals intent to murder the Mollers and take their money, intentionally assisted Bernal in the commission of the crimes.

(c) Defendants Other Arguments

Defendant asserts that the prosecutor improperly relied solely on his consciousness of guilt as evidenced by his lies to police as an evidentiary wild card[] to fill the gaps in the evidence.^[8] He principally relies on People v. Jenkins (1979) 91 Cal.App.3d 579, 585 (Jenkins), where it was held that insufficient evidence supported the defendants convictions for manufacturing phencyclidine (PCP) and possessing chemicals with the intent to manufacture PCP. (Health & Saf. Code,  11379, 11383, subd (b).) The evidence of the defendants guilt in Jenkins consisted solely of his fingerprints on flasks in a PCP laboratory in his brothers garage, and his giving police a false name when they questioned him in jail where he had been booked under the same false name on an unrelated charge. The defendant also denied he had touched any of the flasks in the laboratory and denied he was involved in setting it up or operating it. (Jenkins, supra, at pp. 582, 584.)

The People argued that, aside from the fingerprint evidence, [the defendants] involvement with the [PCP] laboratory is also shown by his denial of even touching any of the paraphernalia and his continuing denial when confronted with the presence of his fingerprints. Finally, [defendant] used a false name over an extended period in custody, further showing his consciousness of guilt. (Jenkins, supra, 91 Cal.App.3d at p. 585.) The Peoples argument, the court said, puts entirely too heavy a burden on the evidence of [the] defendants falsehoods, and drew unreasonable inferences based on the falsehoods. (Ibid.) The court acknowledged that the falsehoods were admissible to show a consciousness of guilt but, by themselves, the falsehoods were insufficient to support a finding on all elements of the crimes. The court said the falsehoods were not evidentiary wild cards with which the prosecution can turn a pair of deuces into a full house. (Ibid.) There were simply too many other explanations and reasons for the defendants falsehoods. (Id. at pp. 585-586.)

Defendant argues that here, as in Jenkins, there was no evidence that [he] aided and abetted the murders or the burglary apart from his web of lies to the police. (Italics added.) We disagree. As discussed, the evidence as a whole, including the evidence of defendants close and supportive relationship with Bernal, the Hoehns testimony that there was only a short pause between the two series of shots, the physical evidence of how the Mollers were murdered, and defendants pretrial statements and trial testimony, all showed defendant had advance knowledge of Bernals intent to murder the Mollers and take their money, and that, with that knowledge, intentionally assisted Bernal in the commission of the crimes.

Defendant also relies on Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, where the court found insufficient evidence to support the defendants conviction as an aider and abettor to a murder and an attempted murder. The defendant, Juan H., was standing beside his brother when his brother shot and killed one person and shot at another. But there was no evidence that Juan H. knew of his brothers intention or acted in any way to encourage or facilitate the crimes. In Juan H., as in Jenkins, the convictions were based solely on conjecture. The defendant (who was 13 years old) fled from the scene of the shooting, went home, and lied to police by telling them he was not present at the scene of the crimes. (Juan H. v. Allen, supra, at pp. 1267, 1277.)

Here, in contrast to Juan H., defendants convictions are based on much more than his mere presence at the scene of the crimes, his leaving the scene of the crimes, or his initial lies to police concerning his involvement in the crimes. As discussed, the evidence showed defendant had advance knowledge of Bernals criminal purpose and played an active role in the commission of the crimes. The evidence of defendants consciousness of guilt, as evidenced by his lies to police, bolstered the other evidence of his guilt, but it was by no means the only evidence of his guilt.^[9]

Finally, defendant argues that the evidence supported only a 50/50 chance he played an active role in the crimes, that is, he argues, the evidence shows it is just as probable as not that he aided and abetted the crimes. (See, e.g., People v. Smith (2005) 135 Cal.App.4th 914, 927, citing People v. Allen, supra, 165 Cal.App.3d at p. 626 [evidence insufficient to support felony-murder special circumstance where it was just as probable as not that defendant was an actual killer or intended to kill].) Here, the evidence supported more than a 50/50 chance that defendant aided and abetted the crimes. As discussed, the evidence supports a reasonable inference that defendant played an active and intentional role in the crimes.

B. The Videotapes of Defendants Police Interviews Were Properly Admitted

Defendant contends the trial court violated Evidence Code section 351.1, abused its discretion under Evidence Code section 352, and deprived him of his right to a fair trial in admitting, over his objection, videotapes of his interviews with police which he claims indicated he had just taken and failed a polygraph examination. We conclude the videotapes were properly admitted over defendants objection.

1. Background

Several police officers and other interviewers interviewed defendant throughout most of the day on September 30, 2002. Most the interviews were videotaped, and the videotapes were played to the jury. At one point between interviews, defendant took a partial polygraph examination in the same room in which the interviews were conducted. The partial polygraph examination was not shown to the jury, but the videotapes of the police interviews showed defendant seated next to a polygraph chair (a chair with wide, flat arms) and also showed a sphygmometer (a device for measuring blood pressure) on a desk in the interview room. At one point during the last interview, defendant is also shown briefly pointing at the polygraph chair while insisting he had previously told the truth.

Defendant made a motion in limine to play audiotapes of the interviews in lieu of the videotapes. The trial court denied the motion, but sanitized the videotapes by redacting all verbal references to the polygraph examination. The People argued, and the trial court agreed, that the videotapes were probative of whether defendant was telling the truth during the interviews, because they allowed the jury to observe defendants demeanor as he was answering questions. The trial court thus concluded that the probative value of the videotapes outweighed their speculative prejudicial effect.^[10]

2. Argument

Defendant argues that the admission of the videotapes, even as redacted to exclude all verbal references to the polygraph examination, violated Evidence Code section 351.1, which prohibits the admission of any reference to the results of a polygraph examination, the opinion of a polygraph examiner, or an offer to take, failure to take, or taking of a polygraph examination in a criminal proceeding. He also argues that the admission of the videotapes violated Evidence Code section 352 because they were substantially more prejudicial than probative.

Defendant specifically argues that, based on the presence of the polygraph chair and the sphygmometer in the interview room, at least some of the jurors could have reasonably inferred he had taken and failed a polygraph exam; otherwise, he would not have been subjected to further questioning and would not be on trial. Defendant also notes that during the last interviews he is shown pointing his finger at the polygraph chair while asserting he had already told the truth. He argues that his gesture toward the polygraph chair only solidified the impression in the jurors minds that he must have just taken and failed a polygraph test.

3. Analysis

As noted, Evidence Code section 351.1 prohibits the admission of any reference to the taking of a polygraph examination. More broadly, under Evidence Code section 352, a trial court has discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial effect. We review a trial courts decision to admit or exclude evidence for an abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.)

Here, the trial court properly concluded that the presence of the polygraph chair and sphygmometer in the interview room did not constitute references to the taking of a polygraph examination within the meaning of Evidence Code section 351.1. Indeed, all verbal references to defendants polygraph examination were redacted from the videotaped interviews.

Furthermore, the trial court did not abuse its discretion under Evidence Code section 352 in refusing defendants request to play audiotapes in lieu of the videotaped interviews. As the trial court indicated, defendants demeanor as shown on the videotapes was highly probative of whether he was telling the truth at critical points during the interviews and in his trial testimony. In contrast, the danger of undue prejudice to defendant based on the presence of the polygraph chair and sphygmometer was speculative.

Indeed, it would have been speculative for the jury to conclude, based on the mere presence of the polygraph chair and sphygmometer in the room, that defendant had just taken and failed a polygraph examination. Even if, as defendant argues, a polygraph chair and sphygmometer are commonly or even universally recognized as equipment used in taking polygraph examinations, the mere presence of the equipment in the interview room did not reasonably suggest that defendant had just taken and failed a polygraph examination. In the videotapes, defendant was shown seated next to the polygraph chair, not in it, and the sphygmometer was disregarded throughout the interviews. At one point, another officer came into the room, sat in the polygraph chair, and participated in the interview. Based on this evidence, it appeared that the polygraph chair and sphygmometer were always present in the interview room and the room was routinely used for polygraph examinations and police interviews.

Defendant also argues that his act of pointing at the polygraph chair during the final interview, while insisting he had just told the truth, indicated to the jury that he had just taken a polygraph examination. He also notes that, just before he pointed at the chair, the interviewer, Robert Heard, told him, This is your last chance to tell us what happened and for me to verify it. (Italics added.) Defendant argues the jurors would have immediately grasped that the verification that Heard referred to was a polygraph exam, or that he would be taking a polygraph examination to verify his statements to Heard.

Defendant reads far too much into his brief gesture toward the polygraph chair and Heards remark about verifying defendants statements. Shortly after the final interview began, Heard told defendant he was in trouble and in a little bit of hot water. Defendant responded, I know[,] thats why I told them the truth. As defendant said those words, he pointed at the polygraph chair. Defendants gesture toward the chair is barely noticeable on the videotape. He very briefly pointed at the chair, and did not extend his arms or fingers toward the chair. He kept his arms and fingers in front of his chest. He also kept his eyes on Heard and did not look at the chair as he pointed at it.

Moreover, it is just as plausible for the jury to infer that as defendant pointed at the chair he was referring to an officer who sat in the polygraph chair during an earlier interview, and not at his partial polygraph examination. It was also just as plausible for the jury to infer that Heard intended to verify defendants final statements during the final interview itself, and not during a polygraph examination. As far as the jurors could see, defendant never took a polygraph examination, because the polygraph chair and sphygmometer were disregarded throughout the videotaped interviews.

Under these circumstances, the trial court did not violate Evidence Code section 351.1 nor did it abuse its discretion under Evidence Code section 352 in admitting the videotaped police interviews over defendants objection.

C. The Failure to Limit the Flight Instruction Was Harmless

Defendant contends the trial court prejudicially erred in giving an instruction on flight. (CALJIC No. 2.52.) He argues there was no evidence he fled or attempted to flee after the commission of the crimes, although there was evidence that Bernal fled to Mexico only three days after the crimes. He further argues that the flight instruction, as given, allowed the jury to infer he had a consciousness of guilt based on Bernals actions rather than his own. We find no prejudicial error.

The trial court gave a modified version of CALJIC No. 2.52 (Flight After Crime), which told the jury: The flight or attempted flight of a person after the attempted commission of a crime or after he or she is accused of a crime is not sufficient in itself to establish his or her guilt but is a fact which, if proved, may be considered by you in light of all the other pertinent facts. In deciding whether the defendant is guilty or not guilty, the weight to which this circumstance is entitled is a matter for you to decide.^[11]

Section 1127c requires a flight instruction to be given when there is evidence of flight. In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. . . . [F]light requires neither the physical act of running nor the reaching of a far-away haven. . . . Flight manifestly does require, however, a purpose to avoid being observed or arrested. . . . Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt . . . , but the circumstances of departure from the crime scene may sometimes do so. . . . (People v. Bradford (1997) 14 Cal.4th1005, 1055, citations omitted.)

Here, defendants actions following the commission of the crimes warranted giving the flight instruction. Immediately after Bernal drove defendant home after the crime, he took his girlfriend and children to his mothers house, where they stayed until the afternoon of the following day. Defendant admitted he stayed at his mothers house to avoid his home. Although he claimed he did so because he feared Bernal would come to his house and kill him, the jury could have reasonably inferred that defendant was attempting to create an alibi for himself by staying at his mothers house.

And, on Sunday two days after the crimes, defendant, his family, and Bernal went to San Diego for the day. Although defendant claimed he went to San Diego with Bernal to convince her he was not scared and would be loyal to her, the jury could have reasonably inferred that defendants purpose in going to San Diego was to avoid being seen at his home after the crimes. In sum, defendants own conduct supported giving the flight instruction.

But as defendant points out, a flight instruction should not permit an inference that a person had a consciousness of guilt based on the flight of another person. (See, e.g., People v. Mora (1956) 139 Cal.App.2d 266, 274 [where substantial evidence showed only two of three defendants fled, flight instruction should have excluded third defendant]; accord, People v. Pitts (1990) 223 Cal.App.3d 606, 878.) Here, although defendants own conduct warranted giving a flight instruction, reasonable jurors could have read the given flight instruction as permitting them to infer that defendant had a consciousness of guilt based, at least in part, on Bernals flight to Mexico. The generic wording of the instruction permitted this impermissible inference to be drawn.

Nevertheless, the failure to limit the flight instruction was harmless. (People v. Silva (1988) 45 Cal.3d 604, 628; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of Bernals flight to Mexico did not logically indicate that defendant had a consciousness of guilt; only the evidence of his own flight did. Moreover, the evidence that defendant aided and abetted Bernals commission of the crimes was very strong. In view of the direct evidence of defendants guilt, it is not reasonably possible that the failure to limit the flight instruction affected any of the verdicts or true findings against defendant.

D. The Effect of the Trial Courts Failure to Define the Target Offenses of the Burglary and Failure Instruct on the Merger Doctrine

Defendant next contends the trial court erroneously failed to identify and define the target offenses of the burglary as charged in count 3, and further erred in failing to instruct on the merger doctrine relative to the burglary-felony-murder instruction. He claims that the first error prejudiced the burglary conviction and that both errors prejudiced the first degree murder findings ‑‑ to the extent the first degree murder findings were based on the burglary-felony-murder findings. By extension, he claims the errors prejudiced the multiple-murder and burglary-murder special-circumstance findings, because these findings were based on the burglary-felony murder findings.^[12]

We agree that the trial court erred in failing to identify and define the target offenses of the burglary and in failing to instruct sua sponte on the merger doctrine relative to the burglary felony murder and burglary-murder special-circumstance findings. We disagree, however, that the errors prejudiced the burglary conviction, the first degree murder findings, or the multiple-murder special-circumstance findings. We first discuss the error in the burglary instruction and its impact on the burglary conviction. We then address the impact of this error, in combination with the error in failing to instruct on the merger doctrine, on the first degree murder and special circumstance findings.

1. The Erroneous Burglary Instructions

Burglary is the unlawful entry of a dwelling with the intent to commit theft or any felony. ( 459.) Where, as here, the prosecutor relies (at least in part) on the natural and probable consequences doctrine to hold a defendant liable as an aider and abettor to premeditated murder, a trial court has a duty to specify, on its own initiative, the so-called target or intended offenses that the defendant allegedly aided and abetted. (People v. Prettyman, supra, 14 Cal.4th at p. 268; see also People v. Hughes (2002) 27 Cal.4th 287, 348-349 (Hughes).)^[13]

In reading the instruction defining burglary to the jury (CALJIC No. 14.50), the trial court told the jury it could find that defendant committed burglary based on his entry of the Mollers residence with the intent to commit theft or any felony. The written version of the instruction differed from the oral instruction in that it included two blank spaces in lieu of the phrase any felony that was twice read to the jury.^[14] Where, as here, there is a discrepancy between oral and written instructions, the written instructions govern. (Peopl