P. v. Acosta

Filed 5/9/07 P. v. Acosta 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Robert J. McIntyre, Judge. Affirmed in part, reversed in part, as to Acosta. Affirmed as to Marquez.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Jaime Acosta.

Mark Cantrell, for Defendant and Appellant Jesus Marquez.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.

During a unified trial, Marquezs jury convicted him of second degree murder (Pen. Code, 187, subd. (a)) and Acostas jury convicted him of the same, of unlawfully taking/driving a vehicle (Veh. Code, 10851, subd. (a)) and of receiving a stolen vehicle (Pen. Code, 496d, subd. (a)). Acosta was sentenced to prison for 15 years to life plus two years and Marquez to 15 years to life. Both appeal, making various contentions, all of which we reject, save Acostas contention that his conviction of receiving a stolen vehicle should be reversed due to jury instruction error. We therefore reverse that conviction and affirm the remaining for both defendants.

I.

Facts

On Easter Sunday, 2002, cousins Acosta and Marquez accompanied the victim, also their cousin, to an isolated area of Riverside County, where the victim was repeatedly stabbed in the back and upper chest, and had his throat slashed. At the time of his death, the victim had a blood alcohol level of 0.29 percent. Both of the defendants versions of the crimes will be described elsewhere in this opinion.

II.

Issues and Discussion

A. Admission of Evidence

1.Acostas October 30, 2002, Statements to Police^[1]

a. Waiver of Miranda

During a pretrial Evidence Code section 402 hearing, Acosta asserted that his waiver of his Miranda^[2] rights during his October 30, 2002, interview with police, conducted in his native tongue, was insufficient. At the beginning of that interview, Acosta stated that he understood each of the rights he was told by officers he had, with one right being explained in particular when Acosta asked a question about it. During the Evidence Code section 402 hearing, Acosta asserted that his waiver was insufficient because the police did not expressly ask him if he waived his rights. The prosecutor responded that an express waiver was not required--that the totality of circumstances showed that Acosta understood his rights and that he went on from the discussion of them to assert, for a long time, that he had nothing to do with the murder. The prosecutor also pointed out that this was the third interview Acosta had had with the police and he had showed no reluctance during the previous two to speak with the officers. The trial court tentatively ruled that an express waiver was not necessary and Acostas waiver could be implied.

In a later written motion, Acosta reiterated that he had not waived his Miranda rights but he made no further comment on the matter during the hearing on that motion. In fact, during the interview, after Acosta had stated his understanding of his Miranda rights, and had given his name and birthdates, he had said that he thought he was being questioned about the disappearance of the victim. The police had then asked Acosta, How do you feel . . . talking about this . . . case? Acosta had replied,  . . . I feel fine . . . to talk with you. At the hearing on the later motion, the trial court ruled that Acosta knowingly and intelligently did waive his rights. . . . 

Acosta here contends that his waiver of his rights was insufficient. He concedes, however, that where the actions and words of the person interrogated clearly imply a waiver, Miranda is not violated. Acosta cites a number of cases holding that where a defendant indicated that he understands his rights and his subsequent responses to questions indicates a knowing and intelligent agreement to speak, exclusion of the statements is not appropriate. Acosta fails to distinguish the facts in these cases from those here. What he does assert is that the interrogators softened up a younger, less experienced, and criminally unsophisticated 26 year old^[3]by asking him his name, date of birth and whether he knew why he was being questioned. What Acosta fails to mention is the question that immediately followed this softening up, i.e., how he felt about talking to the officers, to which Acosta replied that he felt fine. Even without this statement, we would conclude that the totality of circumstances show that Acosta impliedly waived his Miranda rights. (See Fare v. Michael C. (1979) 442 U.S. 707, 724-725.)

Acosta also makes a point he did not assert below, thus there is no ruling on it by the trial court. He contends that it is not clear from the interrogation that he actually understood the rights he said he understood. Having failed to make this assertion below, he cannot make it now. (Evid. Code, 353; People v. Holt (1997) 15 Cal.4th 619, 666.)

b. Involuntary

In his written motion below, Acosta contended that his statements should be excluded because they were involuntary in that he was promised consideration for them. Specifically, after offering Acosta an opportunity to say that he and the victim had fought and he killed the latter in self-defense or that Marquez killed the victim, one of Acostas interrogators said, [N]ow is the time to tell me the truth, because you know what? [I]f I go out of these rooms and you dont tell me what happened [y]ou are going to [have a] very . . . serious problem. And you know whats going to happen? When you want to tell me the truth, Im going to tell you . . . that I dont care, because I already know what happened. [] And . . . you are going to be in very serious trouble with the law, if you dont tell me the truth. Because after I come out of this room, Im not going to help you.^[4]The trial court concluded that this was not an impermissible promise of leniency and Acostas statements were voluntary.

In asserting that his statements were coerced, Acosta, as with his prior argument, strays from the assertion made below and upon which the trial court ruled to claim that, inter alia, his age, experience, sophistication, education and intelligence and the duration of the questioning called for exclusion.^[5] However, as before, we cannot conclude that the trial court erred in admitting the statements if it did not have an opportunity to exclude them on the basis he now urges. As to the ground that was, in fact, asserted below, we agree with the trial court that it did not amount to an improper offer of leniency. (See People v. Sultana (1988) 204 Cal.App.3d 511, 522.) Acosta cites no authority holding otherwise.^[6]

c. Admission ofTranscripts/Recording of Acostas October 30, 2002, Statements to Police

On May 12, 2005, after Acosta contended during his cross-examination by the prosecutor, in the presence of both juries, that portions of his October 30, 2002 interview with police had been mistranslated, his attorney said that he would be entering the entire transcript into evidence.^[7] At the time, Marquez voiced no objection.

However, he did object on May 18, 2005, asserting that admission of either the tapes or transcripts would violate his right to confrontation, noting that in his statements, Acosta attempted to shift most of the blame to him. By that time, counsel for Acosta had apparently changed his mind and stated, without further explanation, that he had no standing on the issue. The People countered that Marquez had an opportunity to cross-examine Acosta during the latters lengthy time on the witness stand. The trial court agreed with the prosecutor, and ruled that the prosecutor could play the tape to both juries.^[8] However, he never did.

On May 20, 2005, during discussions concerning the admission of exhibits for Marquezs jury, and after Acostas jury had begun their deliberations,^[9]the prosecutor said that it was the Peoples view that Acostas account of what occurred at the murder scene was a lie and, on that score, he was in agreement with Marquezs attorney.^[10] The prosecutor continued, Based upon that understanding, I will not seek to introduce the statement of Acosta [during that interview] . . . nor the videotape[s of it] . . . . The trial court noted that the videotapes of the interview would not go to this jury and the transcripts of the interview are not being moved in [and] will be excluded from this trial too. The minutes of the court for Marquez on that day state, Counsel [s]tipulate: To exclude [v]ideo [t]ape and [t]ranscript of Acosta []  . . .  [] Exhibit WW[,] XX[, and] YY[transcripts of Acostas October 30, 2002, interview] is [sic] not coming in to Red Jury [Marquezs jury] in with the Red Jury. The exhibit list for Marquezs jury shows that the videotapes and transcripts were not admitted in his trial.^[11]

Therefore, the defendants contentions that the trial court erred because it allowed Marquezs jury to see the videotapes and transcripts of the interview is not supported by the record.

2.Marquezs Sisters Testimony

Concerning her interview with the police shortly after the murder, Marquezs sister testified that she did not remember details of anything--that she was 14 years old at the time of the interview. Interspersed between claims that she did not recall a number of specific things she said during the interview, she testified, I dont remember anything about the interviews.^[12]

During his trial testimony, when the sisters interrogator was asked what she had reported about what Marquez had said approximately a week before the murder, counsel for Marquez objected. Counsel asserted that the anticipated testimony would be inadmissible double hearsay in that the sister had not been asked specifically during her testimony about Marquezs statement, therefore, the interrogators testimony would not be a prior inconsistent statement. However, counsel continued, if she had been and had denied saying that her brother made the statement, the testimony would be admissible. The trial court ruled that the sister testified that she did not recall what she told the police period, thus the testimony was a prior inconsistent statement and it was relevant to motive. The interrogator then testified that the sister had told him that about a week before the murder Marquez had mentioned to their father that he wanted to sell the victims car.

Marquez here contends that the evidence was improperly admitted because its trustworthiness was never established in that it was not known whether the sister was even present when Marquez made the statement. However, Marquez did not object to the testimony on this basis below, therefore, he waived it. As with our prior discussions of Acostas contesting the propriety of the admission of evidence at trial, had such an objection been made, the prosecution would have had the opportunity to demonstrate the circumstances under which the sister came upon this information, i.e., whether she herself heard Marquez tell their father, or whether she had come by it second-hand. By failing to object on this ground below, Marquez deprived the People of their opportunity to make this showing, and he may not here contend that reversal is required on a basis not asserted below.

B. Jury Instructions

1. CALJIC No. 3.00

For the first time here, Acosta^[13]objects to the giving of CALJIC No. 3.00, which states, in pertinent part, Persons who are involved in committing . . . a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: []  . . .  [] [t]hose who aid and abet the commission . . . of the crime. Acosta asserts that the statement, [e]ach principal, regardless of the extent or manner of participation[,] is equally guilty is erroneous because it is possible for an aider and abettor to be convicted of a greater (or lesser) offense than the actual perpetrator, due to the existence of different intents on the part of the two, or defenses or extenuating circumstances that apply to one, but not the other. (People v. McCoy (2001) 25 Cal.4th 1111, 1114, 1119.)^[14] However, contrary to Acostas assertion, the statement is a correct one--an aider and abettor shares the guilt of the actual perpetrator. (People v. Mendoza (1998) 1114, 1122, citing People v. Prettyman (1996) 14 Cal.4th 248, 259.) Moreover, in determining instructional error, we examine the contested instruction in order to determine whether there is a reasonable likelihood that the jury understood the charge as the defendant[s] assert[]. [Citations.] (People v. Kelly (1992) 1 Cal.4th 495, 525.) The correctness of jury instructions is to be determined from all of the instructions given by the court. (People v. Burgener (1986) 41 Cal.3d. 505, 538, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 753.) In making a showing of reasonable likelihood, the defendant must overcome the presumption that the jury followed the courts instructions and was able to understand and correlate them correctly. (See People v. Sanchez (2001) 26 Cal.4th 834, 852.)

The instructions given adequately informed Acostas jury that the prosecution had the burden of proving beyond a reasonable doubt that Acosta must have his own requisite intent for that crime in order to be convicted. In addition to the contested instruction, Acostas jury was instructed that an aider and abettor must act with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing or encouraging or facilitating the commission of the crime. (CALJIC No. 3.01.) Acostas jury was instructed to consider the instructions as a whole (CALJIC No. 1.01) and that Acosta may not be convicted of a criminal offense unless there is some proof of each element of the crime (CALJIC No. 2.72). Acostas jury was also instructed that in deciding whether Acosta was guilty as an aider and abettor, it may consider evidence of Acostas voluntary intoxication in determining whether [he] had the requisite intent.^[15] Thus, Acostas jury was properly instructed as to the intent necessary to convict him as an aider and abettor.

Under these circumstances, it is not reasonably likely that Acostas jury would misinterpret the entire body of instructions based solely on the statement at issue. It is important to note that CALJIC No. 3.00 does not mandate the jury to return any particular verdict. Nor does it state that both defendants must be guilty of the same offense. It simply identifies active participants and aiders and abettors as principals and instructs that criminal liability attaches equally to both. We therefore hold that Acostas jury was instructed properly on all the elements of the offense of aider and abettor liability.

2.Self-defense Instructions

a. CALJIC 5.17

Acosta,^[16]for the first time, objects to the giving of CALJIC No. 5.17, which provides, in pertinent part, A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. . . .  Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter. []  . . .  [] However, this principle is not available, and malice aforethought is not negated, if the defendant by his . . . unlawful or wrongful conduct created the circumstances which legally justified his . . . adversarys use of force, attack or pursuit.^[17] (Italics added.)

Acosta contends that the italicized portion of this instruction was overbroad, ambiguous, and misleading because it failed to set forth what actions amounted to unlawful or wrongful conduct. However, the instruction itself reveals what amounts to unlawful or wrongful conduct--it is that which legally justifies anothers use of force, attack or pursuit. The instructions given to the jury on self-defense/defense of another covered the matter by providing that self-defense is justifiable and not unlawful when a person reasonably believes he or she is in imminent danger of death or great bodily injury. They also provided, A person threatened with attack that justifies the exercise of the right of self-defense . . . may stand his . . . ground and defend himself . . . , and . . . may pursue his . . . assailant until he has secured himself . . . from danger . . . .

Acostas contention that the instruction suggests that any unlawful or wrongful conduct legally justifies the use of force, attack or pursuit requires a strained and nonsensical interpretation of the instruction.

Acosta asserts there was evidence of acts on [his] behalf that under the overbroad instruction would have precluded reliance on the theory [of imperfect self-defense or defense of others]. Since his jury heard only his version of the events that occurred at the murder scene, we summarize them as follows:

According to the case agents summary of Acostas statement to the police, Acosta claimed that after he and the victim argued with and threatened each other, the victim lunged at him with something, cutting him on his left wrist. Acosta then lunged at the victim, grabbing him around the waist. Acosta reached around and removed a pocketknife from the victims right front pants pocket. They fought and pushed each other against a large rock. Acosta still had the victims knife. Acosta grabbed the victim in a bear hug and Marquez tried to break up the fight. Marquez grabbed the knife and stabbed the victim in the lower back while Acosta held him down. Marquez stabbed the victim in the hands and chest. The victim continued to struggle. They ended up near a large rock and Acosta was pushed to the ground. The victim fell to the ground, rolled over and slid down the hill. The victim choked on blood and died. Acosta said nothing about the victim getting his throat slit.

In the transcript of the first part of the October 30, 2002, interview which was given to Acostas jury, Acosta said that he did not know what the victim had in his hand when he launched at Acosta at the beginning of their physical struggle, adding that he did not know if it was a knife or a pocketknife. Acosta continued that he held the victim, the two started to turn over and Marquez got involved. Acosta held the victim and Marquez started hitting him. The victim told Acosta and Marquez to kill him or he was going to fuck you up. Acosta and Marquez were either afraid or it was the beer. The victim was killed with the pocketknife. When Acosta was asked who stabbed the victim, he both refused to say and also said, It was both of us . . . . When asked how many times the victim was stabbed, Acosta replied that he held the victim because the latter had something in his hand and Acosta saw it fall and Acosta feared the victim would run and pull out a gun because he had said that he had a gun. Acosta said he held the victim up, not on the ground, because the victim had him pinned up against a rock.

During the second part of the October 30, 2002, interview, Acosta said that the victim had a pocketknife and Acosta took it from his pocket while they were struggling. Acosta said that the victim had the knife both in his hands and in his pocket. The victim threw something that was shiny at Acosta, injuring Acostas arm. Acosta saw the victim hurl this object to the side, and thats when [Acosta] saw that . . . [the victim] did it again, like this, and [Acosta] saw the pocketknife. Thats when [Acosta] threw [him]self at [the victim] and got the pocketknife and put it beside [him]. As they struggled, the victim told Acosta he was going to fuck him up. Acosta pushed the victim, who got away, and threatened the defendants and their children. Marquez stabbed the victim, in defense of Acosta, while Acosta held him.

In the final segment of Acostas October 30, 2002, interview, he said that after he and the victim argued, the victim cut Acosta with something unknown to Acosta which fell. Acosta heard it clash and saw it spark (like metal) when it hit the ground. The victim threatened to fuck you up. The victim tried to put his hand into his own pocket. When Acosta lunged at the victim, the victim grabbed that object in his pocket. Acosta embraced the victim with one hand at the victims waist and, with the other hand, grabbed the victims hand, taking the object away from him. He said, I believe it was a pocketknife, too. Acosta had it in his hand and the victim tried to take it away from Acosta and pushing and kicking occurred. Marquez intervened. Acosta pushed the victim towards a wall and the victim pushed Acosta back towards a rock. Marquez asked the victim to calm down. The victim replied that he was going to fuck you up. Marquez repeated his request and the victim replied by saying that they were enemies. Marquez took the knife from Acosta and stabbed the victim in the back. The victim screamed and loosened up. Acosta pushed the victim towards a fallen tree. The victim threatened to fuck you guys up. The defendants tried to be conciliatory while restraining the victim against the fallen tree, including offering to take him for medical care, but the victim said no, got a second wind and threatened to fuck him up or that someone will kill you and tried to get away from them and stand up. Acosta hugged the victim from the front and Marquez possibly stabbed him again and pushed him. The victim threatened them again, they pushed him and he fell against the fallen tree, vomiting blood. Acosta denied stabbing the victim. He said Marquez stabbed the victim while he was struggling with him.

On the stand, Acosta testified that the physical confrontation between him and the victim started when the victim hit him with something, which the victim had removed from his pocket. Acosta had lifted his hand defensively against the blow and felt heat on his arm. Acosta was scared and backed up, throwing a bottle at the victim, but he did not believe it hit its target. Acosta took two steps towards the victim and saw something shiny in the victims lowered right hand. The victim started to lift his hand and Acosta grabbed the victim around the waist in a bear hug and held onto the victims right hand with both of his hands from behind the victims back. They struggled together and Marquez told them to calm down. The victim yelled at Marquez that he was going to screw Acosta and Marquez should help him do that. Acosta took a knife from the area of the victims pocket while the victim hit Acosta in the back. Acosta was afraid to let go because the victim was stronger than he was. Acosta took the knife from the victims hands, but he never entirely had it. They were yelling at each other as they struggled. The victim told Acosta that he was going to fuck [Acosta] over which Acosta interpreted meant the victim was going to kill him. The victim told Acosta that he had friends in the police and in the drug dealing world. Marquez approached and tried to mediate, but the victim said he was going to fuck Acosta. Marquez pushed both men and removed whatever they had in their hands. The victim yelled that someone was going to come and fuck them over if something happened to him. Acosta continued to hold onto the victim in a hug, but this time from the front, and he put one hand in the victims face. Marquez hit the victim in the back,^[18]to defend Acosta. Marquez yelled that if the victim had a problem, it was going to be over with. The victim lost strength and Acosta pushed him against the fallen tree. As the victim leaned against the tree, Acosta realized that he had been hurt as he had blood on his hands and pants. Marquez yelled at both to calm down. Acosta let the victim go, except he kept his hand on the victims shoulder. They talked for a minute about how they had to think over what they were doing, help the victim and stop fighting. Acosta told the victim they could take him for medical care. The victim said they were not cousins, but enemies. He got a second wind and pushed Acosta towards a cliff. Acosta fell down below where Marquez and the victim were. Marquez and the victim screamed at each other. The victim threw himself at Marquez and was on top of him. Acosta joined them and pulled the victim off Marquez. At that point, Marquez had blood on him and the victim had at least one chest wound. The victim slumped over and fell onto the fallen tree. Acosta jumped down to the victim, but the latter had no strength. Acosta returned to where Marquez was, then heard the victim making retching sounds. Then, Acosta realized that his arm had been cut. As with his October 30, 2002, interview, he did not state how the victims throat got slashed. In fact, he denied seeing it occur.

There is nothing in the foregoing to suggest that Acosta had committed any acts which legally justified the victim using deadly force against him, which would preclude him from claiming imperfect self-defense. Acosta asserts that there was evidence that he wanted to force [the victim] to go to [yet another cousins house] and that he initiated the confrontation with [the victim] by making derogatory or provoking remarks about [the victims girlfriend]. However, there was no evidence Acosta intended to force the victim to go to their relatives house so that the victim and the relative could reconcile. In fact, Acosta testified that during an argument in which all three participated, and no one in particular had initiated, he told the victim he was taking him to the relatives house and the victim replied something to the effect of try it. However, Acosta decided that he didnt want to get in a fight with the victim about this, so he told Marquez to stay with the victim while he went and got his relative and brought the latter to the victim. The victim then protested that neither defendant could tell him what to do and Acosta responded that he did not want to tell the victim what to do, he was only trying to effect a reconciliation between the victim and the other relative. Marquez tried to calm down the rhetoric. The victim told Acosta that Acosta was angry at the former because the victims girlfriend had left Acosta to return to the victim. Acosta responded that the victims girlfriend was a prostitute and she would leave the victim just as she had left him. The victim disagreed, saying the girlfriend was his great love. That was when the victim either threw something at Acosta or struck him with something. Under the instructions given this jury on self-defense, it could not have viewed this exchange as causing the victim to believe he was in imminent danger of death or great bodily injury, thereby legally justifying his use of force on Acosta.

Acosta also points to evidence that the victim cut Acostas arm and threw an object at him, which may have prompted Acosta to lunge at the victim and retrieve the victims knife. He argues, [t]his evidence could have also led the jury to believe that Acostas conduct was wrongful or unlawful, thereby precluding him from claiming unreasonable self-defense or defense of another. Acostas argument makes no sense. If anything, this evidence would suggest that Acostas actions towards the victim were justified.

b.Right to Imperfect Self-Defense Arising After the Right to

Self-Defense Ends

The juries were told, The right of self-defense exists only as long as the real or apparent danger continues to exist. When the danger ceases to appear to exist, the right to use force in self-defense ends. They were also told, The right to self-defense ends when theres no longer any apparent danger of further violence on the part of an assailant. Thus, where a person is attacked under circumstances which justify the exercise of the right to self-defense, thereafter the person uses enough force upon his . . . attacker as to render the attacker incapable of inflicting further injuries, the right to use force in self-defense ends.^[19]

The defendants here contend that the instructions were inadequate because they failed to convey the fact that imperfect self-defense voluntary manslaughter may arise when reasonable self-defense ends but before the defendants conduct becomes unpremeditated second degree murder. Specifically, they assert that the foregoing instructions create . . . an impression that a person is justified in using force in self-defense or defense of another, whether reasonable or imperfect, only in response to the initial threat, and that once the attacker appears disabled, the persons further defensive actions automatically become murder.

Their interpretation is incorrect. The instructions convey the fact that one may not claim self-defense, perfect or imperfect, if he inflicts the fatal blows at a time when the real or apparent danger has ceased to exist, either because he has disabled his assailant or because for another reason the assailant no longer poses a danger. This is entirely proper. (In re Christian S. (1994) 7 Cal.4th 768, 771.)

The defendants correctly note that there was evidence that the victims knife was taken from him and he was stabbed in the back by Marquez while he and Acosta were struggling. They also note that there was evidence that the victim got a second wind, and lunged at either or both of the defendants while unarmed. They assert, [T]he instructions given were inadequate and misleading because they failed to advise the jury that although [the victim] may have been disarmed, Acosta and/or Marquez may still have been overcome by passion and continued stabbing and/or slashing [the victim] while actually but unreasonably believing in the need to use force to repel [the victims] attack. However, they ignore the only evidence offered at trial to Acostas jury as to what occurred at the scene, i.e., his statements on October 30, 2002, and his trial testimony. In both, he insisted that the victim continued to threaten him (therefore Marquez stabbed the victim in order to defend Acosta) and Marquez, in his trial testimony, claimed that the victim tried to push him over a cliff and threw himself on top of Marquez. Thus, the defendants fear that the absence of an instruction to Acostas jury that imperfect self-defense voluntary manslaughter may arise when reasonable self-defense ends but before the defendants conduct becomes unpremeditated second degree murder is unfounded. If Acostas jury believed his testimony, it would have concluded that he and Marquez were in a constant state of fear based on the things the victim said and the actions he took. Moreover, the coroner testified that some of the stabs to the victims back, which were the initial blows inflicted, were lethal. Therefore, if Acostas jury believed Acostas account, it would not have mattered that self-defense ended when the victim was disabled, but perhaps unreasonable self-defense arose thereafter.

As to Marquezs jury, they had Acostas trial testimony, as set forth above (and those portions of his pretrial statements with which he was impeached while on the stand), and Marquezs pretrial statements. Therein, Marquez claimed that he had not been in the immediate area when the stabbing and throat slashing of the victim occurred, and Acosta later admitted to him that he had killed the victim. If Marquezs jury had believed Marquezs story, it would have acquitted him. If it disbelieved his story and believed Acostas, then the prior discussion also disposes of this issue as to Marquez.

3. Assault with a Deadly Weapon

The juries were instructed, Homicide is justifiable and not unlawful when committed by any person in the defense of himself or another if he actually and reasonably believed that the individual killed intended to commit a forcible and atrocious crime and that there was imminent danger of that crime being accomplished. []  . . .  [] A forcible and atrocious crime is any felony that by its nature and the manner of its commission threatens, or is reasonably believed by the defendant to threaten life or great bodily injury so as to instill in him a reasonable fear of death or great bodily injury. [] Murder or attempted murder or assault with a deadly weapon (knife) are forcible and atrocious crimes.

The defendants contend their convictions for second degree murder should be reversed because the trial court failed to define for them what assault with a deadly weapon was. However, this was unnecessary, as the juries had before them the actual definition of a forcible and atrocious crime, provided in the second sentence quoted above. There is no danger either jury would have concluded that the victim intended to commit such an act and there was an imminent danger of it being accomplished without being given the definition of assault with a deadly weapon.^[20]

4. Natural and Probable Consequences

Marquezs jury was instructed that if it found that Acosta committed a robbery, which Marquez aided and abetted, and the murder of the victim was a natural and probable consequence of the robbery, Marquez was guilty of the murder. In this regard, the jury was told, In determining whether a consequence is natural and probable, you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. (Italics added.)Marquezs jury was also informed that for purposes of aiding and abetting a robbery, it continues as long as the stolen property is being carried away to a place of temporary safety. Marquez contends that based on his claim^[21]that he did not become involved in any criminal enterprise until after the victim was dead, and then he only helped Acosta dispose of the victims car in Mexico, his jury may have concluded that the victims murder was a natural and probable consequence of Acostas robbery of the victim and Marquez was guilty of the murder because he aided and abetted the robbery by helping to dispose of the car.^[22] However, that would have required the jury to ignore the italicized language in the instruction on natural and probable consequences. This language clearly calls upon the jury to conclude that the aider and abettor of the robbery, at the time he was an aider and abettor, should have reasonably been able to foresee the murder as a consequence of (and necessarily something that followed in time) the robbery. Moreover, given the very strong evidence of Marquezs guilt on a number of other theories, the chances that his jury resorted to this strained and illogical interpretation of the instructions is negligible.

C. Cumulative Error

Having rejected all of the defendants claims thus far, we also reject their contention that the cumulative nature of asserted errors already discussed requires reversal of their second degree murder convictions.

D. Acostas Conviction of Vehicle Code Section 10851

Acosta contends there was insufficient evidence he unlawfully drove or took the victims vehicle. Acostas jury was instructed that anyone who drives or takes a vehicle not his . . . own without the consent of the owner and with the specific intent to deprive the owner either permanently or temporarily of his . . . title to or possession of the vehicle was guilty of violating Vehicle Code section 10851.

Acosta correctly points out that it was Marquez, and not he, who drove the victims car to Mexico. Acosta asserts that there is no evidence that he aided and abetted Marquezs unlawful driving of the car because the title was in Marquezs name and the prosecution did not establish that Marquez had no legal right or [the victim]s permission to drive[ the] car. However, the evidence did establish that while Marquez retained the title to the car, he had sold it to the victim months before the crime and the victim was making payments to Marquez for it. The victims girlfriend testified that before the crimes, the defendants had gone to her home, when the victim was, at 2:00 a.m. The victim told her that they had asked to borrow his car. In his pretrial statement to police, Acosta said that the day before the crimes, he and Marquez had gone to the victims girlfriends house where Marquez borrowed . . . [the victims] car[.] The evidence was undisputed that the victim was dead when Marquez drove the victims car, accompanied by Acosta in his car. Therefore, Marquez could not have had the victims permission to drive the car, although, apparently while the victim was alive, Marquez felt the need to get such permission. The fact that Marquez was not charged with vehicle theft or receiving a stolen vehicle was a matter neither revealed to Acostas jury nor is it of consequence in determining whether there was sufficient evidence to support the conviction.

Although the man to whom the car was sold in Mexico could not identify either of the two men who had participated in the sales transaction, Acosta admitted to the police that the check the buyer wrote for the victims car was made out to and cashed by him and he kept a portion of the sale proceeds.

There was sufficient evidence that Acosta aided and abetted the unlawful taking or driving of the victims car.

E. Acostas Conviction of Receiving a Stolen Car

Acostas jury was not instructed that if it based his conviction for violating Vehicle Code section 10851 on his taking of the car, as opposed to his driving of it, he could not also be convicted of receiving the same stolen car. (See People v. Garza (2005) 35 Cal.4th 866, 880.) We agree that the omission of such an instruction requires reversal of his receiving conviction. We note that in the cases the People cite upholding dual convictions, the defendant was the actual driver of the car. This was not the case here. Additionally, since we cannot determine upon which facts the jury based their driving/taking conviction, we are unable to apply the divorcement rule the People urge.^[23]

F. Sentencing

The trial court imposed a consecutive term for Acostas conviction of unlawfully driving/taking a vehicle, finding that it had a different goal altogether [from the murder, i.e.,] not only to cover up the crime which was related, but also to sell [the car] for profit. Acosta here contends the imposition of a consecutive term violated Acostas federal constitutional rights as interpreted by United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey (2000) 530 U.S. 466.

Acosta acknowledges that at the time his appellate counsel authored his briefs, the holding of the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 [overruled in part in Cunningham v. California (2007) ___U.S.___ [127 S.Ct. 856, 166 L.Ed.2d 856] that Californias determinate sentencing law, both in regard to the imposition of upper terms and consecutive sentences, did not violate the cases Acosta cites, was binding. (AutoEquity Sales Inc. v. Superior Court (1962) 54 Cal.2d 450, 455-456.) Since that time, the United States Supreme Court in Cunningham v. California, supra, (2007) ___U.S.___ [127 S.Ct. 856, 166 L.Ed.2d 856] declared that Blacks analysis was incorrect insofar as it applied to upper terms. However, it made no comment whatsoever on consecutive terms. Therefore, we are still bound by Blacks holding that the reason(s) for imposing a consecutive term need not be determined by the jury. (People v. Black, supra, at pp. 1263-1264.)

III.

Disposition

Acostas conviction of receiving a stolen auto (count 3) is reversed and the trial court is directed to omit references to it in the abstract of judgment and minutes of the sentencing hearing. In all other respects, his judgment and that of Marquezs are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

RICHLI

J.

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^[1] Both below and in his opening brief, Acosta contended that his statements should have been excluded by the trial court because he was not informed of his right to contact the Mexican Consulate before interrogation began under the terms of the Geneva Convention. However, the People and Acosta, in his reply brief, acknowledge that exclusion of statements obtained in asserted violation of the Geneva Convention is not appropriate. (Sanchez-Llamas v. Oregon (2006) ___ U.S. ___ [126 S.Ct. 2669, 164 L.Ed.2d 557].)

^[2]Miranda v. Arizona(1966) 384 U.S. 436 [16 L.Ed.2d., 694] (Miranda).

^[3] Having read the transcript of Acostas testimony at trial and his three pretrial statements, we can rest assured that despite the fact that Acosta was a citizen of Mexico and only a high school graduate, he was far more clever than most of the defendants whose cases we review. During his lengthy cross-examination by the prosecutor and Marquezs counsel, he cut through questions like an accomplished skier sails down a black diamond trail. (During argument to the jury, the prosecutor described it as follows: He can wheel and shoot from the hip up on the witness stand. . . . He is a worthy adversary.) We further note that, despite the fact he had been in this country only six years, in that time, he figured out how to get a green card both for himself and the victim (the latter, albeit, illegally) and a cell phone for the latter, and he applied for and received disability when he was injured on the job years before the murder. When he realized the victims girlfriend had spoken to the police and he suspected she was lying to him, he recorded his conversation with her. When he became embroiled in a custody dispute with the mother of his son, he recorded conversations with her and with her boyfriend, which he had in his car when he was arrested for the murder. This was not an unsophisticated man. In fact, at one point in the trial, the prosecutor remarked, I believe [Acosta] is much more sophisticated than he would have us believe.

^[4] In contending that Acostas statements were involuntary, his attorney below had relied on his own translation of the interrogation, which had been in Spanish, and his translation was different from that in the transcript.

^[5] In making these assertions, Acosta relies on matters that appear in the record long after the hearing below took place. Moreover, he contends, There is . . . no evidence [he] was educated or sophisticated. However, we refer Acosta to footnote 3. As the California Supreme Court observed in People v. Holt, supra, 15 Cal.4th at page 666, had Acosta made these assertions below, the People would have had the opportunity to show that he was as clever as his trial testimony proved him to be, however, absent them, that opportunity did not materialize.

^[6] Concerning the asserted promise of leniency, Acosta here adds a statement made by one of his interrogators which was not brought to the attention of the trial court below. Specifically, the officer said that if Marquez told him the truth, the attorney [presumably, the prosecutor] probably will cut him some slack and not you. And youre the one thats going to be . . . in trouble. Even if Acosta had included this statement in his motion to exclude below, our conclusion would not be different. The interrogator was simply offering Acosta the opportunity to tell the truth first, before Marquez beat him to the punch and possibly got a deal with the prosecutor. Again, Acosta cites no authority holding that such a comment renders his statements involuntary.

^[7] Acosta was impeached by the prosecutor, in the presence of both juries, with statements he made during this interview and two prior interviews that contradicted his trial testimony.

^[8] It is apparent that both appellate attorneys stopped reading the record at this point.

^[9] Acostas jury began deliberations at 11:30 a.m. on May 20, 2005. The discussion between the prosecutor, counsel for Marquez, and the trial court concerning the exhibits that would be seen by Marquezs jury took place at 1:05 p.m. on the same day. It was noted on page 1,733 of the reporters transcript that Acostas jury retired to begin deliberations and the discussion of the exhibits in Marquezs case occurred at pages 1761 through 1763.

^[10] As already stated, Marquezs attorney pointed out when he first objected to the admission of the tapes or transcripts that Acostas version put most of the blame on Marquez.

^[11] Of course, the transcripts went to Acostas jury.

^[12] Marquezs assertion, in his reply brief, that his sister answered most of these questions in complete detail mischaracterizes the record. Of the 18 statements she made during the interview which she was asked to recall on direct, she claimed to be unable to remember 10 of them. Given the fact that at times she was adamant about being able to recall the statements she made that exonerated her brother, but not about others, many of which implicated him, there was a basis for the trial courts implied finding that she was being evasive and her statements during the interview were inconsistent with her trial testimony. (See People v. Montiel (1993) 5 Cal.4th 877, 930.)

^[13] Marquez requested the instruction; therefore, despite the fact that he devoted seven and one-half pages of briefing to this issue, he waived it by his request. (People v. Woods (1950) 35 Cal.2d 504, 510.)

^[14] The Supreme Court went on in McCoy to comment, [T]he dividing line between the actual perpetrator and the aider and abettor is often blurred. [I]n . . . a stabbing case, one person might restrain the victim while the other does the stabbing. In [this] case, both participants would be direct perpetrators as well as aiders and abettors of the other. The aider and abettor doctrine . . . obviates the necessity [for the jury] to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role. (People v. McCoy, supra, 25 Cal.4th at p. 1120.)

^[15] There was undisputed evidence at trial that Acosta had drunk heavily before the murder.

^[16] Since Marquez requested this instruction, we assume that his joinder in all the contentions advanced by Acosta that benefit him does not apply to it. Unlike his attack on CALJIC No. 3.00 (see fn. 13, ante) he provides no argument concerning it in his briefs.

^[17] As the People correctly point out, when jury instructions were being discussed, the trial court said that both the People and Acosta had requested CALJIC No. 5.17. Trial counsel for Acosta replied, Yes, sir. And I believe its a su[a] sponte, but you skipped my [request for CALJIC No.] 5.16. We note that in Acostas tentative requests for jury instructions, his attorney stated, The attached list [of jury instructions] is the standard list that is used in Riverside County . . . . There are several instructions on the list that I believe must be given sua sponte by the court in all cases. I have notated those instructions by bolding them. Neither I nor the defendant takes any position in the giving of sua sponte instructions. We are not requesting any of the bolded instructions, we do not object to any of the bolded instructions, and we simply take no position on them. CALJIC No. 5.17 appears on the list, in boldface. CALJIC No. 5.16 does not. Therefore, we cannot agree with the People that Acosta waived his right to contest the propriety of CALJIC No. 5.17 because he requested it.

^[18] Acosta maintained that he was not sure that Marquez was stabbing the victim with the knife at this time.

^[19] Acostas jury was given the instruction orally, only. The written form of this instruction is not included in the clerks transcript and an examination of the superior court file revealed no such written instruction.

^[20] We note that Marquezs jury was given the definition of a dangerous or deadly weapon in the context of the personal use of a deadly or dangerous weapon allegation with which he was charged.

^[21] Of course, the more important part of his defense was that he was not present when Acosta killed the victim in a rage during an argument and neither defendant robbed the victim of his car.

^[22] Although Acosta joined in any matters addressed by Marquez that may benefit him, Marquezs argument is relevant only to the arguments he made to his jury. Therefore, we have omitted Acosta from this discussion.

^[23] Where a thief disposes of property he has stolen, then, after a significant break in possession and control, receives it back in a separate transaction, he may stand convicted of both offenses. (People v. Garza, supra, 35 Cal.4th at p. 879.) Since the defendants remained in control of the victims car from the time they left the murder scene with the keys until they sold the car days later in Mexico, we cannot agree with the People that there was such a divorcement.