P. v. DeLara

Filed 6/21/07 P. v. DeLara CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Matthew J. Goldman, Christine Levingston Bergman and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Antonio DeLara guilty of first degree murder. (Pen. Code, 187, subd. (a).)^[1] The jury also found true the enhancement allegations that he personally and intentionally discharged a firearm causing death ( 12022.53, subd. (d) & 1192.7, subd. (c)(8)) and personally used a firearm in the commission of the murder ( 12022.5, subd. (a) & 1192.7, subd. (c)(8)). The court imposed a total indeterminate term of 50 years to life in state prison.

On appeal, defendant argues that: (1) the trial court failed to instruct the jury on accomplice testimony; and (2) the court was required to strike the section 12022.5, subdivision (a), enhancement. We disagree and affirm.

FACTUAL BACKGROUND

Just before midnight on April 20, 2002, defendant paid an unexpected visit to Nanette Young. Young did not know defendant well since she had only met him a few days earlier. She was just leaving her house as he arrived. Defendant asked Young to drive him to First Street, but did not tell her why he wanted to go there. Before going to First Street, they drove to Youngs friends house and dropped off some drugs. Young smoked a little methamphetamine at her friends house. She testified that it did not have any effect upon what she saw or heard that night. She then drove defendant to First Street and parked on the street in front of a certain house. There was a man in a white car that was about to back out of the driveway. Defendant told Young he just had to talk to someone, so she stayed in the car with the engine running. She saw defendant tap on the hood of the white car and then approach the drivers door. The man in the white car opened the door and defendant talked to him for about five minutes. Young looked down at her radio to change the station and then heard a gunshot. Defendant rushed back and got into Youngs car. He told her to take off and drive to her house. Defendant also said his hand hurt and told her he had to get rid of his gun. Young was not sure what happened, but she was scared, so she followed defendants instruction. Young noted that the victim drove down the street, heading east, after being shot.

When they arrived at her house, Young and defendant went inside. Defendant asked if he could wash his hands in the kitchen sink and Young said yes. He again said he needed to get rid of his gun. Defendant asked Young for money to leave town and she said she did not have any. Young was scared of being hurt by defendant and just wanted to get out of the house. She came up with a plan and called a friend to ask if she could borrow money for defendant. She told defendant that her friend could lend her money for him and asked defendant if she could leave to get it. Her plan was to leave and not come back. At first, defendant told her not to leave the house because it was too hot with the police. Defendant then agreed to let her go. Young left the house and did not return. She did not go to the police immediately because she was scared. Instead, she went to a pay phone, called her boyfriend, and went to his house. Young went to the police the next day and told them what happened. A day after that, she met with the police and made a recorded call to defendant, in order to get him to incriminate himself. During the call, defendant said things like dont trip and I have it covered.

At trial, the victims girlfriend testified that she and the victim lived together. The week before the murder, defendant called their house and told her that the victim owed him $65. She testified that defendant sounded very angry on the phone.

ANALYSIS

I. The Trial Court Was Not Required to Instruct the Jury

Regarding Accomplice Testimony

The court determined that Young was not an accomplice as a matter of law. Defendant now argues the court should have allowed the jury to make the determination as to whether or not Young was an accomplice. He further contends that Young was an accomplice as a matter of law, and the jury, thus, should have been instructed to view her testimony with distrust. In addition, defendant claims that the court improperly restricted his cross-examination of Young, and thereby significantly infringed upon his right to present a defense. We find no error on the part of the court. Even if the court did err, it was harmless.

A. Background

Before trial, defense counsel suggested that Young might need an attorney. The court asked defense counsel for any evidence showing Young was an accomplice to the murder. Defense counsel responded that Young told the police she was the driver. The court agreed, but added that Young also said she had no idea there was going to be a shooting. The court concluded that it did not appear that Young was an accomplice. The court said it would keep the issue in mind, as the evidence came in.

At trial, defense counsel requested that the jury be given accomplice instructions with regard to Young. Defense counsel asserted that the evidence showed that Young was the driver and that she was involved in drug transactions of some kind. Defense counsel argued that the murder was drug-related, and that since Young was involved with drug transactions, she knew defendant was going to confront the victim. The court disagreed, stating that there was no evidence that Young shared defendants intent to kill the victim. The court further explained that the facts were undisputed, and, thus, it did not need to instruct the jury on accomplice testimony. The prosecution agreed.

B. The Facts Were Undisputed

When the testimony given at trial is sufficient to warrant the conclusion of the jury that a witness was an accomplice, the trial court must instruct the jury, sua sponte, to determine whether the witness was an accomplice. [Citation.] If the testimony establishes that the witness was an accomplice as a matter of law, the jury must be so instructed. [Citation.] In either case, the trial court also must instruct the jury, sua sponte, (1) that the testimony of the accomplice witness is to be viewed with distrust [citations], and (2) that the defendant cannot be convicted on the basis of the accomplices testimony unless it is corroborated . . . . [Citation.] (People v. Zapien (1993) 4 Cal.4th 929, 982.)
Section 1111 defines an accomplice as one who is liable to prosecution for the identical offense charged against the defendant on trial . . . . [Citations.] (People v. Williams (1997) 16 Cal.4th 635, 679.) This definition encompasses all principals to the crime [citation], including aiders and abettors and coconspirators. [Citation.] (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) An accomplice must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] (Id. at pp. 90-91.) Whether a person is an accomplice within the meaning of section 1111 presents a factual question for the jury unless the evidence permits only a single inference. [Citation.] Thus, a court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witnesss criminal culpability are clear and undisputed. [Citations.] (People v. Williams, supra, 16 Cal.4th at p. 679.)

Here, the trial court correctly determined that Young was not an accomplice. Although she was at the scene of the crime and had knowledge of the murder, this fact without more merely means that [she] was an eyewitness and not necessarily an accomplice to the crime[]. (People v. Lewis (2001) 26 Cal.4th 334, 369 (Lewis).) There was no evidence that Young acted with knowledge of defendants criminal purpose of murdering the victim or that she intended to encourage or facilitate the murder. To the contrary, the evidence merely showed that Young agreed to drive defendant to a house on First Street, and that she did not know why defendant wanted to go to there. There was no evidence that she knew defendant had a gun until after the shooting, when he told her he had to get rid of it. Indeed, at trial, defendant did not contend that Young helped him commit the murder.

Moreover, the undisputed evidence showed that, after defendant shot the victim, Young just wanted to get away from defendant, rather than help him. After Young heard the gunshot, she got scared. When defendant asked her for money in order to help him get out of town, she devised a plan to get away from defendant. She lied to defendant, telling him she was going to borrow money from her friend. Instead, she left the house and did not return. After that, Young went to the police and told them what happened. She also made a recorded pretext phone call to defendant, at the direction of the police. In sum, there was no evidence to support an inference that Young shared defendants criminal intent or purpose.

Defendant suggests that Youngs status as an accomplice was established under the natural and probable consequences doctrine. He claims that the jury could have properly concluded that Young was an accomplice to the murder because it was a natural and probable consequence of assisting defendant in the collection of a drug debt with a firearm. However, the applicability of this doctrine assumes that Young was an aider and abettor to a target crime. (See People v. Prettyman (1996) 14 Cal.4th 248, 260.) As discussed ante, there was no evidence to support such inference.

Defendant further argues that reversal is required because the court infringed on his right to present a defense when it sustained objections to questions regarding the extent of Youngs criminal activities on the night of the murder. Defendant reasons that he could have established Youngs accomplice liability had the court permitted him to present evidence of her actions in aiding and abetting drug transactions, including the collection of drug debts by force. Specifically, defendant claims that the court infringed on his right to attack Youngs credibility and his ability to prove that she was an accomplice, when it sustained objections to questions regarding: (1) why Young dropped off drugs at her friends house on the night of the murder; and (2) what happened to his cell phone after he left it at Youngs house that night. Defense counsel cross-examined Young regarding her testimony on the events of the night of the incident and had plenty of opportunities to attack her credibility. Moreover, objections to the questions at issue were properly sustained as irrelevant; they had nothing to do with the murder of the victim or with showing that Young was involved in collecting drug debts by force. Thus, defendants claims have no merit.

C. Any Error Was Harmless

Ultimately, defendant is arguing that the jury should have been instructed to view Youngs testimony with distrust, since she was an accomplice. (See CALJIC No. 3.18.)^[2] We conclude that any error on the part of the court in failing to give accomplice instructions was harmless. The other instructions givenincluding instructions on a witnesss credibility (CALJIC No. 2.20)^[3]and instructions on carefully reviewing a single witnesss testimony (CALJIC No. 2.27)^[4]were sufficient to inform the jury to view Youngs testimony with care and caution, in line with the accomplice instructions. (See Lewis, supra, 26 Cal.4th at p. 371.) Thus, there was no reasonable probability that defendant would have received a more favorable result if the trial court instructed the jury with the accomplice instructions. (People v. Watson (1956) 46 Cal.2d 818, 836.) Moreover, the instructions requested would have informed the jury to view Youngs testimony with care and caution if the jury determined that Young was an accomplice to the murder. Any reasonable juror would reach this conclusion without instruction. (Lewis, supra, 26 Cal.4th at p. 371.)

In addition, the failure to instruct on accomplice testimony is harmless where there is sufficient corroborating evidence in the record. (People v. Miranda (1987) 44 Cal.3d 57, 100.) The requisite corroboration may be provided by circumstantial evidence. (People v. Thurman (1972) 28 Cal.App.3d 725, 730.) It is only required that the evidence tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth. (Id. at p. 729.)

Here, Youngs testimony was corroborated on a number of important details. The paramedic who arrived at the scene corroborated the timing of the incident and the fact that the victim suffered one gunshot wound. Furthermore, one of the investigating police officers testified regarding the location where the victim crashed his car after being shot. The victims direction of travel and ending location were consistent with Youngs testimony that she saw him drive east, after defendant shot him. Because there was sufficient corroboration of Youngs testimony, any error on the courts part in failing to instruct on accomplice testimony was harmless.

II. The Trial Court Properly Stayed the Sentence on the Enhancement for

Personal Use of a Firearm

The jury found true that defendant personally and intentionally discharged a firearm causing death ( 12022.53, subd. (d)), and that he personally used a firearm in the commission of the murder ( 12022.5, subd. (a)). At sentencing, the court imposed the indeterminate term of 25 years to life on defendants murder conviction, plus the indeterminate term of 25 years to life on the section 12022.53, subdivision (d), enhancement. The court also imposed but stayed a 10-year term on the section 12022.5, subdivision (a), enhancement. Defendant contends that because the court imposed the section 12022.53, subdivision (d), enhancement, it should have struck, not stayed, the section 12022.5, subdivision (a), enhancement. We disagree.

At the outset, we note that defendant cites People v. Gonzales (Aug. 29, 2006, C045935). However, rehearing was granted and the opinion was depublished. Accordingly, Gonzales cannot be cited as authority. (Cal. Rules of Court, rules 8.1105(d), 8.1115(a).)

A. Bracamonte

Defendant also relies on People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte) to support his position. The court in Bracamonte held that where multiple enhancements are applicable under the various subdivisions of section 12022.53 and under section 12022.5, the court for each count must (1) impose but stay all of the section 12022.53 enhancements except the longest one, and (2) not impose, but strike the section 12022.5 enhancements. (Bracamonte,supra, 106 Cal.App.4th at pp. 711, 714.) The court in this case did not comply with holding (2).

The Bracamonte court supported its determination that unused section 12022.53 enhancements need only be stayed, but section 12022.5 enhancements must be struck, with the following reasoning:

(1) Section 12022.53, subdivision (f), specifically states that if an enhancement under section 12022.53 is imposed, a section 12022.5 enhancement shall not be imposed . . . . (Bracamonte, supra, 106 Cal.App.4th at p. 712-713.) Such directive is mandatory. (Id. at p. 712, fn. 5.)

(2) The trial court must either impose an enhancement or strike the underlying finding . . . . It is without authority simply to stay the enhancement. [Citations.] (Bracamonte, supra, 106 Cal.App.4th at p. 711.)

(3) Since a section 12022.5 enhancement shall not be imposed, and the court is without authority to stay the enhancement, the only alternative is to strike the enhancement. (Bracamonte, supra, 106 Cal.App.4th at pp. 711-712.)

(4) Although section 12022.53, subdivision (f), says that unused enhancements under section 12022.53, as well as under section 12022.5, shall not be imposed, this language cannot be read in isolation. Instead, it must be harmonized with the provision in section 12022.53, subdivision (h), that [n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. (See Bracamonte, supra, 106 Cal.App.4th at p. 713.)

The Bracamonte court acknowledged that section 12022.5, subdivision (c), was amended in 2003 to provide, like section 12022.53, subdivision (h), that [n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. (Bracamonte, supra, 106 Cal.App.4th at p. 712, fn. 5.) The court also acknowledged that the legislation enacting the amendment stated that the amendment was declarative of existing law. (See Stats. 2002, ch. 126, 3.) However, the court held, without any real explanation why, that section 12022.5, subdivision (c), was trumped by section 12022.53, subdivision (f)s, provision that unused section 12022.5 enhancements shall not be imposed. (Bracamonte, supra, 106 Cal.App.4th at p. 713, fn. 5.)

Bracamontes holding that section 12022.53, subdivision (f), only requires that unused enhancements under section 12022.53 be stayed, but unused section 12022.5 enhancements must be struck, is illogical. The courts reliance on the statement in section 12022.53, subdivision (f), that unused section 12022.5 enhancements shall not be imposed is not a persuasive reason for distinguishing between unused section 12022.53 and section 12022.5 enhancements. Section 12022.53, subdivision (f), specifically provides that [o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If only one section 12022.53 enhancement shall be imposed, then it follows that the remaining section 12022.53 enhancements shall not be imposed, just like an unused section 12022.5 enhancement.

In addition, there is no apparent reason the Legislature would intend that section 12022.53, subdivision (f), trump section 12022.5, subdivision (c), but not section 12022.53, subdivision (h). Section 12022.5, subdivision (c), and section 12022.53, subdivision (h), use exactly the same language: Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.

To understand the intended meaning of a statutory phrase, we may consider use of the same or similar language in other statutes, because similar words or phrases in statutes in pari materia [that is, dealing with the same subject matter] ordinarily will be given the same interpretation. [Citations.] (In re Do Kyung K. (2001) 88 Cal.App.4th 583, 589.) Accordingly, we can see no basis for concluding that section 12022.53, subdivision (h), overrides section 12022.53, subdivision (f), but the identical language in section 12022.5, subdivision (c), does not.

Moreover, the Bracamonte court held that a court may, and in fact must, staynot strikean enhancement if the term for the underlying crime is stayed pursuant to section 654. (Bracamonte, supra, 106 Cal.App.4th at p. 711.) Section 654, unlike section 12022.5, subdivision (c), contains no provision prohibiting the striking of unimposed terms, and it contains no provision authorizing a court to stay an unimposed term instead. The Bracamonte court did not explain why, then, section 654 could confer the authority to stay an unused term but section 12022.5, subdivision (c), could not.

Finally, the Bracamonte court itself acknowledged that the word impose encompasses both situations where an enhancement is imposed and then executed and imposed and then stayed. (Bracamonte, supra, 106 Cal.App.4th at p. 711.) That being the case, it is reasonable to conclude that when the Legislature in section 12022.53, subdivision (f), said that unused section 12022.5 enhancements shall not be imposed, it meant that such enhancements shall not be executed, but instead may be imposed and then stayed.

B. California Rules of Court, Rule 4.447

California Rules of Court, rule 4.447 (rule 4.447) provides: No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit.

The Bracamonte court summarily dismissed the Peoples contention that rule 4.447 authorized staying rather than striking unused section 12022.5 enhancements, stating: No case has expressly applied this rule to a situation involving an indeterminate life term and the Advisory Committee Comment refers to enhancements only in the context of the Determinate Sentencing Act (DSA). [Citations.] (Bracamonte, supra, 106 Cal.App.4th at p. 710.)

The Bracamonte courts limitation of rule 4.447 to determinate sentencing situations is unpersuasive. First, it is difficult to discern any logical reason why the Judicial Council would intend that a court have the authority to stay unused enhancements in a determinate sentencing situation but not where, as in Bracamonte, some of the terms are determinate and some are indeterminate. The authorities the Bracamonte court cited in support of its conclusion were section 1170.1 and People v. Felix (2000) 22 Cal.4th 651, 659. (Bracamonte, supra, 106 Cal.App.4th at p. 710.) Those authorities do establish that the determinate sentencing rules only apply to determinate sentences.

However, the unused section 12022.5 enhancement terms in Bracamonte were determinate sentences. (Bracamonte, supra, 106 Cal.App.4th at p. 710.) Only the imposed enhancement, under section 12022.53, subdivision (d), was indeterminate. (Bracamonte, supra, 106 Cal.App.4th at p. 710.) Therefore, it made no sense for the court to say that rule 4.447 did not permit a court to stay enhancements made applicable by section 12022.5, subdivision (a), because the rule only applies to determinate sentences.

In addition, developments since Bracamonte was decided undermine its reasoning and conclusion. First, the Advisory Committee comment to rule 4.447 specifically states that the rule applies to both determinate and indeterminate terms. (Advisory Com. com., 23 pt. 1B Wests Ann. Codes, Rules (2006 ed.) foll. rule 4.447, p. 325.)

Second, this court in People v. Lopez (2004) 119 Cal.App.4th 355 (Lopez), in the context of the habitual sexual offender law ( 667.71) and the one strike law ( 667.61), extensively discussed the problem of whether to stay or strike an enhancement that cannot be imposed because the court has imposed a mutually exclusive alternative enhancement. The Lopez court acknowledged that [o]rdinarily, an enhancement must be either imposed or stricken . . . . The trial court has no authority to stay an enhancement, rather than strike it--not, at least, when the only basis for doing either is its own discretionary sense of justice. [Citations.] (Lopez, supra, 119 Cal.App.4th at p. 364.)

However, in Lopez, thiscourt held that when a statute prohibits striking an enhancement that cannot be imposed, the correct procedure is to impose a sentence on the barred enhancement, but then stay execution of that sentence. (Lopez, supra, 119 Cal.App.4th at p. 364.) We cited rule 4.447 in support of the holding. This court acknowledged there is no statutory provision authorizing, as rule 4.447 does, staying and not striking an unused enhancement. However, we pointed out there also is no statute expressly authorizing a court to stay a term that cannot be imposed due to section 654. Yet, it is well established that such a term is to be stayed, not struck. (Lopez, supra, 119 Cal.App.4th at p. 365.)

In the case of both rule 4.447 and section 654, this court held that the power to stay rather than strike the enhancement is implied, so that a defendant who is subject to one of two alternative punishments will not be wrongly subjected to the other; if, however, one of the two punishments is invalidated, the defendant will still be subject to the remaining one. (Lopez, supra, 119 Cal.App.4th at p. 365.)

We recognized that even if an unused enhancement were struck, it could still be revived later by operation of law if the imposed enhancement were invalidated. (Lopez, supra, 119 Cal.App.4th at p. 365.)

However, we concluded the Judicial Council in rule 4.447 specified that an unused enhancement should be stayed rather than struck because a stay makes the trial courts intention clear--it is staying part of the sentence only because it thinks it must. If, on the other hand, the trial court were to strike or dismiss the prohibited portion of the sentence, it might be misunderstood as exercising its discretionary power under Penal Code section 1385. (Lopez, supra, 119 Cal.App.4th at p. 365.)

The reasoning in Lopez is more persuasive than the reasoning in Bracamonte. We conclude the trial court had the authority to stay rather than strike the unused section 12022.5 enhancement and properly did so.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] CALJIC No. 3.18 provides: To the extent that [an accomplice] [or] [a codefendant] gives testimony that tends to incriminate [the] [a] [another] defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case.

^[3] The jury was instructed with CALJIC No. 2.20, as follows: Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. [] In determining the believability of a witness you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following: [] The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified; [] The ability of the witness to remember or to communicate any matter about which the witness has testified; [] The character and quality of that testimony; [] The demeanor and manner of the witness while testifying; [] The existence or nonexistence of a bias, interest, or other motive; [] The existence or nonexistence of any fact testified to by the witness; [] The attitude of the witness toward this action or toward the giving of testimony; [] A statement previously made by the witness that is consistent or inconsistent with his or her testimony.

^[4] The jury was instructed with CALJIC No. 2.27, as follows: You should give the testimony of a single witness whatever weight you think it deserves. Testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.