P. v. Lunghi

Filed 8/8/07 P. v. Lunghi CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

This criminal appeal arises from the murder of Sandra Kay Morris, who was shot to death on Thanksgiving Day 1989. Nearly 15 years later, a jury found defendant Milburn Lunghi guilty of the first degree murder of Morris with special circumstances and returned a verdict of life in prison without the possibility of parole. On appeal, defendant asserts that numerous errors occurred during the guilt phase of his trial and that the trial court erred when imposing a $200 parole revocation fine pursuant to Penal Code section 1202.45.[1] We reject all of defendants claims, save for that relating to the parole revocation fine which, as the People concede, is well taken. We order the abstract of judgment amended to strike the parole revocation fine, and affirm the judgment in all other respects.

I. The Evidence At Trial

A. The Homicide Case Against Gerald Carpenter

On September 6, 1989, Paul Sisto was fatally stabbed outside J & M Liquors in San Pablo. During the investigation into his murder, the San Pablo police identified Gerald Carpenter, a friend of defendant, as a suspect in the homicide. A few days after the murder, the police executed a search warrant at a possible location for Carpenter, but instead of finding Carpenter, they found Sandra Morris and a methamphetamine lab. Morris was arrested at the scene.

During an interview with the police, Morris related a conversation between her and Carpenter in which she told him she had heard he stabbed someone. According to Morris, Carpenter admitted it, responding, Oh well, it was just an Indian punk, what the fuck.

On September 19, 1989, Carpenter was arrested for Sistos murder. Morris was subpoenaed to testify at an October 27, 1989 preliminary hearing in the murder case against him, but she failed to appear, and the preliminary hearing was postponed until November 9, 1989. No other witnesses had come forward, making Morris the sole witness able to implicate Carpenter.

On October 30, 1989, two Contra Costa County sheriff deputies, who were separately on patrol in Rodeo, were involved in stopping a vehicle for a traffic violation. The driver of the vehicle identified herself as Sandra Kay Gunter, although she denied having any identification. Upon searching the vehicle, the deputies located a California identification card bearing the name Sandra Morris. The driver then admitted her name was Sandra Kay Morris and claimed she lied about her name because she thought the police were seeking her as a witness in the case against Carpenter. Morris was arrested for possession of a controlled substance, giving false information to a police officer, and driving on a suspended or revoked license. While in custody, Morris was subpoenaed to appear at the November 9 preliminary hearing. She again failed to appear, however, so the court issued a bench warrant for her arrest, and the police issued a wanted bulletin.

B. The Evening Before Morriss Murder

A few weeks later, on the evening of November 22, 1989, Morris invited Ruth Just, an admitted methamphetamine user, to go to the Regency Islander Motel in Vallejo, where drug use and sexual encounters were common. As Just explained it at trial, she and Morris had met a few weeks earlier, and they had seen each other two or three times prior to that evening. They walked to the motel, and when they got there, defendant was already in the room. There was a discussion about drugs, and Morris and defendant went into the bathroom where Morris was going to inject defendant with methamphetamine. Just heard defendant become upset and disgusted because Morris wasnt doing it right and it was taking too long. Although Just wanted to do some too, she became uncomfortable and left, leaving Morris and defendant in the motel room. Just never saw Morris again after that evening.

Later that night or early the next morning, Morris and defendant went to the mobile home of Tyler and Susan Dodge[2] in West Pittsburg,[3] where the Dodges were partying with Sivas Martinelli, a long-time friend of Tyler and the best man at their wedding. Martinelli, who had just gotten out of jail a few days prior, had met defendant before that evening and was dating his stepdaughter, Carlene Krueger. Martinelli had never met Morris before that night.

Around that time, there were a lot of drugs going on at the mobile home, with upwards of 10 people coming and going at the trailer each day to do methamphetamine, much of which was supplied by Martinelli. The Dodges young son lived with them for part of the time, but then went to live with his grandparents because of his parents drug troubles. Susan was referred to as Dr. Susan because people often paid her with methamphetamine to hit them, or inject them with methamphetamine when they could not do it themselves. On one occasion, she witnessed Tyler inject defendant in the trailers kitchen. According to Susan, defendant was screaming and cussing at him, telling him that he better not miss, and kind of how to do it.

Returning to the night of November 22, 1989, the Dodges, Martinelli, Morris, and defendant spent the night partying, doing drugs and so forth. Defendant and Morris seemed very sociable, at one point sitting on the couch where Morris had her arms around him and at other times disappearing into the back room for hours, coming out, and then disappearing again. The party continued into the early hours of the following morning.

C. The Murder Of Sandra Morris

Martinelli was the sole witness as to what happened when defendant and Morris left the trailer. According to Martinelli, who testified under a grant of immunity, early in the morning of November 23, 1989, maybe five, six in the morningjust before light,defendant asked Martinelli to follow him out to Rodeo, saying he needed a ride back. They left the trailer, with Morris driving her car, a black Ford Ranchero, and defendant in the passenger seat, and Martinelli following in his pickup truck, a light blue Ford Ranger. They drove out Port Chicago Highway and went down towards the waterfront down by the railroad tracks through Shore Acres. Defendant and Morris pulled over on the side of the road, both doors opened, and as Morris started to get out of the car, defendant shot her multiple times with a blue, snub nose .38 revolver. It was Martinellis recollection that defendant shot her over the top of the Ranchero. Defendant then got into Martinellis truck, saying something like, she was a rat, or she deserved what she got.

Martinelli was pretty much stunned, and as they drove away, he noticed that defendant was still holding the gun. Martinelli asked him to empty the shells out of the gun, which defendant did, throwing them out the window. Martinelli then drove to Crockett, where he dropped defendant off at Bonesys place.[4] After he dropped defendant off, Martinelli realized the gun was on the seat next to him, so he threw it out the window into a heavily wooded canyon by Port Costa.

D. The Police Investigation

At 7:39 a.m. that morning, Contra Costa County Deputy Sheriff Lester Hyder was dispatched to a location on Port Chicago Highway in response to a suspicious circumstance call reporting a woman lying alongside a car. Two minutes later, when he arrived at the location, which he described as pretty much cow pasture, he discovered a black Ford Ranchero pulled over on the shoulder of the road with the engine still running and a woman lying on her stomach alongside the car with her left foot still in the vehicle. He rolled her over to check for signs of life, but found none, although the body was still warm.

Deputy Sheriff James Hatchell was also called out to the scene. He did not recognize the victim, but he was soon joined by another deputy, who recognized her to be Kay Ford, also known as Sandra Morris. Hatchell recognized the name from the recent law enforcement bulletin looking for Morris. An autopsy determined that Morris died from multiple gunshot wounds, having suffered three gunshot wounds to her back and one over the left elbow. The wounds were consistent with gunshots fired at a distance of at least two feet. Morris was shot as she was exiting the drivers side door with the shooter off to the right, either in the passenger seat or outside the vehicle. The autopsy also determined that Morris had ingested methamphetamine shortly before her death.

Shortly following the murder, Hatchell interviewed two individuals who drove by the murder scene at the time (or shortly after) defendant shot Morris. Herman Ortiz was driving along Port Chicago Highway that morning on his way to work, when he saw a pickup truck and what he thought was an El Camino stopped on the shoulder. When shown a photograph of Morriss black Ranchero at trial, Ortiz said that it looked similar to the vehicle he saw. He described the pickup as a Ford maybe grayish, bluish, light bluish with a camper. As far as he could see, no one was in the pickup.

As Ortiz described it to Hatchell, he saw a body or a person fall out of the drivers side and land on his or her stomach with one foot still in the vehicle. He just thought somebody was drunk, passed out, or something like that. After he drove by, he thought he saw a person duck down on the passenger side in his rear view mirror. When interviewed by Hatchell, Ortiz described the person as a white male in his 40s or 50s with a full bushy beard and slightly balding on top, and at trial, he described the person as a white, bald man with a beard in his 40s or 50s. He estimated that he drove by the vehicles at approximately 7:30 a.m.

The police also interviewed Bobby Gene Estes, who reported that he was driving along Port Chicago Highway that morning when he noticed a black Ranchero with the drivers door open, the engine running, and a woman lying on the ground bleeding.

On the ground next to the drivers compartment of the vehicle, the police recovered Morriss purse, which contained a receipt dated November 22, 1989 from the Regency Islander Motel. On the passenger seat of the vehicle, they found a key to room 126. Later that same day, Hatchell interviewed Dipak Mackrani, the manager on duty at the Regency Islander Motel the prior evening, who confirmed that a woman checked into room 126 that night. He recognized a photograph of Morris as the same person who registered and recalled that she had been accompanied by a white male and had a black vehicle. He described her companion as thin with longish hair. At trial, Mackrani recalled that a woman checked into room 126 the night of November 22, 1989, but he lacked any independent recollection of her companion or her vehicle, and did not recall having previously identified a photo of Morris as the woman who checked into the motel.

On the drivers side floorboard of Morriss car, the police found a receipt from Abduls Food & Liquor, a store not far from the murder scene. The receipt showed that at 7:26 a.m. that morning, just minutes before the first deputy was called to the scene, someone had purchased a pack of Camel regular cigarettes, a pack of Kool King cigarettes, and a can of soda, for which the buyer had tendered a five dollar bill and had received 45 cents change.

Items consistent with the receipt were found in Morriss car. A pack of unopened Kool cigarettes, an unopened can of Coca-Cola, an empty carton of Kool cigarettes, and a quarter and two dimes were found on a seat cushion in the vehicle. A pack of Camel cigarettes containing 18 cigarettes was found on the passenger seat, and a Camel cigarette that had not been smoked was lying separately from the pack. In the ashtray, there were several unburned cigarettes, including ten filter-tipped cigarettes and three partially burned cigarettes with no filter, two of which had the printing Camel on them. Tests conducted in 2000 determined that DNA found on the paper from two of the Camel non‑filter cigarette butts found in the ashtray was consistent with defendants, with a random match probability of one in eight hundred and fifty trillion Caucasians. Morris and Martinelli were both eliminated as the primary contributor of the DNA.

On the passenger side floorboard was an ice bucket identical to the ice buckets used at the Regency Islander motel. Defendants thumb print was found on the ice bucket. On December 17, 1989, after Hatchell learned that defendants fingerprint was found on the ice bucket, he contacted defendant about Morriss death. Defendant responded that the name Sandra Morris did not mean anything to him and he knew nothing about her murder. Hatchell showed defendant a photograph of Morris, and defendant denied recognizing her. Defendant also claimed to be unfamiliar with Morriss black Ford Ranchero. Hatchell asked defendant if he had ever stayed at the Regency Islander Motel, and defendant claimed that the only time he had ever stayed there was just two days prior to the interview. Defendant told Hatchell that he smoked unfiltered Camels.

Hatchell interviewed defendant again on July 18, 1990, and again defendant denied knowing Morris or being familiar with her vehicle. He also denied that the name Ruth meant anything to him. When asked how his fingerprints got inside Morriss car, he had no explanation.

The day after the murder, Hatchell also interviewed Leo Del Roberton, Morriss boyfriend at the time of her death, who described having witnessed an incident about two weeks prior to Morriss death at the Redwood Street Motel 6 in Vallejo. He drove up to the parking lot and saw defendant leading Morris to a vehicle. When Morris saw Roberton drive up, she got in his car instead and they drove off.

E. Martinellis Possession Of A Gun Similar To The Murder Weapon

On February 7, 1990, Martinelli was a passenger in a vehicle being driven by Vance Kichen when they were stopped by the police, who conducted a search and found a gun on the floorboard or under the seat and bullets in Martinellis jacket pocket and boots. The gun was a snub nose .38 revolver similar to the weapon used to shoot Sandra Morris. Martinelli was arrested for possession of methamphetamine for sale and weapon possession, although he denied the drugs and weapon were his, explaining that as the police were stopping the vehicle, Kichen pulled out the gun and drugs and tossed them to Martinelli, who ended up taking the rap for them. At trial, Martinelli denied that the weapon, which was destroyed by the police, was the weapon used to murder Morris.

F. The Beating Of Sivas Martinelli

On the night before Easter Sunday in 1990, Martinelli was severely beaten. After the beating, his brother, Eugene Martinelli, drove him to Arizona to dry him out for three or four months, after which they returned to California. During the drive to Arizona, Martinelli told his brother that he had witnessed a murder.

Later that year, having recuperated from the beating, Martinelli returned from Arizona and was living in Berkeley with his brother when he received a telephone call from defendant. He was concerned that defendant had located him.

G. The Arrest Of Defendant For Morriss Murder

Morriss homicide remained unsolved for ten years, but in mid-1999, Deputy Sheriff Roxane Gruenheid took over investigation of the case when she became aware of new leads that identified Martinelli as a suspect. On September 28, 1999, Martinelli was arrested for the murder. During his first interviews with the police on September 28 and 29, 1999, Martinelli told the police that defendant had shot Morris and that he was present when it happened. He also told police that defendant took the murder weapon with him, a claim he repeated during a third interview on October 1, 1999. Later that same day, however, after speaking with his brother and praying, he had a change of heart and contacted Gruenheid to tell her he had new information about the murder weapon. During the ensuing interview, Martinelli told the police for the first time that he threw away the gun, which he said he had not told them earlier because he did not want to involve himself. Martinelli showed Gruenheid a location where he said he threw the gun, but a search of the area failed to uncover the weapon.

At trial, Martinelli denied knowing in advance that defendant was going to shoot Morris and claimed that if he had known, he would not have followed him. However, Tyler Dodge testified that at some point before Morris was murdered, Martinelli made comments to him along the lines of you wont ever see her again or she wont be around any more. Martinelli denied ever making such a statement or that he himself shot Morris.

On September 13, 2001, defendant was charged with the murder of Sandra Morris.

H. The Jailhouse Informants

The prosecution offered testimony from two jailhouse informants who were incarcerated with defendant at different times. Robert Farmer testified that while he was incarcerated with defendant in October 1994, he asked defendant what happened to the witness against Gerald Carpenter, and defendant admitted that he shot her. Farmer described defendants confession as follows: He said hethey were driving on Port Chicago, and hehe had his car parked out there, and he told her thatsI think thats my car, and she stopped. He got out, came back, got in the car, and he said, Yeah, thats my car. He pulled the gun out, and he shot her three times. According to Farmer, defendant admitted that he shot Morris because she was a witness against Carpenter. Farmer acknowledged on cross-examination that at the time defendant admitted murdering Morris, he (Farmer) still had ten or ten and a half years remaining on a sentence for carjacking and that he subsequently offered to help out the district attorney with information on the Morris case in exchange for leniency, although nothing had come of it. Farmer also admitted that at the time of trial, he was in custody on a parole violation for which he had not yet been charged and if he was prosecuted for the new charges, he would face 25 years to life as a third strike offender. It was his hope that by testifying, he would avoid prosecution or receive consideration in terms of his sentence on the new charges.

Matin Moghadam, the second informant, testified that in April 2000, he and defendant were both in custody at the Martinez Detention Facility. According to Moghadam, when he and defendant got into an argument, defendant threatened him, Go ask people around here, Ive killed people before.

I. The Defense

By attacking Martinellis credibility and highlighting inconsistencies in his testimony, the defense sought to persuade the jury that Martinelli, not defendant, had killed Sandra Morris.

The defense challenged testimony that put defendant and Morris together the night before and morning of her murder. On direct examination, Ruth Just testified that Morris was the woman with her and defendant at the Regency Islander Motel on the night of November 22, 1989. On cross-examination, however, Just admitted that a few days prior, when a police detective showed her photos of Morris, she had been unable to identify Morris as the woman with defendant that evening.[5]

The defense also challenged the evidence indicating that Morris was the woman with defendant at the Dodge trailer. When shown photos of Morris at trial, Tyler Dodge did not recognize her as the woman at the trailer with defendant, whom he described as a lot younger and more attractive than the woman in the photos. Likewise, Susan denied that the woman in the photos was the woman at the trailer that night, noting that the woman was at least maybe in her forties . . . and with dark hair and just looked like your typical drug addict. Martinelli was similarly unable at trial to positively identify a photo of Morris as the woman defendant shot that evening.

II. Procedural Background

By information filed September 13, 2001, defendant was charged with the murder of Sandra Kay Morris. The information alleged a personal use of firearm enhancement pursuant to section 12022.5, subdivision (a)(1) and special circumstances pursuant to section 190.2, subdivision (a)(10) (murder of a witness to a crime who was intentionally killed to prevent his or her testimony). The information also alleged three prior serious felony convictions within the meaning of section 667, subdivision (a)(1) and four prior prison terms within the meaning of section 667.5, subdivision (b). On January 23, 2004, the prosecution filed notice of its intent to seek the death penalty.

Jury selection began on October 5, 2004 before the Honorable Richard E. Arnason. On October 20, 2004, testimony commenced, and on November 2, 2004, the case was submitted to the jury. On November 4, 2004, the jury returned a verdict of murder in the first degree, finding true the special circumstance and personal firearm use allegations. Following a seven-day trial on the penalty phase, the jury returned a verdict of life in prison without the possibility of parole.

On March 10, 2005, defendant moved for a new trial on the grounds that: (1) the prosecution violated his right to due process by knowingly permitting Martinelli to present false testimony and by making a misleading statement during closing argument; (2) the trial court erred by admitting testimony by Martinelli that he was testifying pursuant to a grant of immunity and testimony by Ruth Just and Susan Dodge of defendants methamphetamine use; and (3) the trial court erred by giving aiding‑and‑abetting, accomplice, and confusing manslaughter instructions and by failing to give complete instructions relating to intoxication.

On April 1, 2005, the court denied defendants new trial motion and sentenced him to life in prison without the possibility of parole, to run consecutive to an unrelated life sentence he was already serving. Defendant also received five years for each of the three prior serious felony enhancements, and two years for the personal firearm use enhancement, for a seventeen-year determinate sentence to run consecutively to his life sentence. The court also ordered defendant to pay restitution and imposed a $200 parole revocation fine pursuant to section 1202.45.

Defendant filed a timely notice of appeal.

III. Contentions On Appeal

In this appeal, defendant asserts that the following reversible errors occurred during the guilt phase of his trial: (1) the prosecution knowingly allowed Martinelli to falsely testify that he had no advance knowledge of defendants intent to murder Morris, which testimony contradicted prior statements during police interviews that defendant had told him he was gonna off this bitch; (2) the trial court had a sua sponte duty to instruct the jury that Martinelli was an accomplice as a matter of law, which would have required corroboration of his testimony pursuant to section 1111, or, alternatively, his counsel provided ineffective assistance by failing to request that the jury be read the accomplice as a matter of law instruction; (3) there was insufficient evidence corroborating Martinellis testimony as an accomplice; (4) the prosecution committed misconduct during closing argument on two occasions, first suggesting that defendants statement to Matin Moghadam that he had killed people before must have referred to Morris, when the prosecution knew it could have referred to a 1968 vehicular manslaughter conviction which was kept from the jury during the guilt phase, and, second, by urging the jury to accept Martinellis false testimony that he had no advance knowledge of defendants intent to murder Morris; (5) the trial court erred in admitting testimony by Ruth Just and Susan Dodge of defendants methamphetamine use and testimony by Robert Farmer and Matin Moghadam, the two so-called jailhouse snitches; and (6) the ten‑year preaccusation delay violated defendants right to due process. Defendant also contends that the cumulative error from these alleged errors requires reversal. Finally, defendant contends that the trial court improperly imposed a $200 parole revocation fine.

With the exception of the claim concerning the parole revocation fine, we reject each of these contentions in turn.

A. The Prosecution Did Not Commit Misconduct By Knowingly Using False Testimony

Defendant objects that at trial, the prosecution knowingly allowed Martinelli to falsely testify that he had no knowledge prior to Morriss murder that defendant was going to kill her. On direct examination, Martinelli testified he left the Dodges trailer because defendant said he needed a ride and wanted Martinelli to follow him. When the prosecution then queried, Do you recall any conversation that you may have had with Mel Lunghi prior to leaving the trailer? Martinelli responded, No, other than that he asked me to follow him. On redirect, Martinelli denied having any advance knowledge that defendant was going to kill Morris. Defendant argues that this testimony was false, and the prosecution knew it was false, because during police interviews on September 29, 1999, October 1, 1999, and July 10, 2000, Martinelli admitted advance knowledge of defendants intent to kill Morris.

Defendant cites a litany of authority on the issue of prosecutorial use of false testimony, including Napue v. Illinois (1959) 360 U.S. 264, 269, in which the United States Supreme Court stated: [I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. [Citations.] The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. [Citations.] [] The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jurys estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendants life or liberty may depend. Defendant also submits that  [t]he governments duty to correct perjury by its own witnesses is not discharged merely because the defense counsel knows, and the jury may figure out, that the testimony is false.  While we agree with defendants statement of the law, we disagree that it is applicable in his case.

Preliminarily, as the People argue, defendants contention relies on police interviews that were not made part of the appellate record. Cavalierly dismissing the Peoples argument as disingenuous, defendant responds that his pretrial motion for an order dismissing the information or, in the alternative, for the exclusion of testimony is a part of the record, and that it contained the actual quotations from the interviews. The motion on which defendant relies, however, did not append an official transcript of the interviews or even the recordings of the interviews themselves but rather contained typed excerpts entitled Examples from Reporters Transcript of interviews. These passages are devoid of any authentication and do not constitute evidence.

In reply, defendant asserts that the record is adequate but nonetheless attempts to remedy the defect by indicating that he will request that the video and audio tapes of the Martinelli police interviews be transmitted with [sic] this court pursuant to [California Rule of Court, rule] [8.224(c)], concurrently with the filing of this reply brief. We note that on July 26, 2006, Peoples Exhibit 63A, Transcript of Videotaped Proceedings, Interview with Sivas Martinelli on an unspecified date, was lodged with the Court. We have received no other materials bearing on this issue.

In any case, this deficiency is immaterial since, even accepting defendants examples of the interviews as accurate, we reject his claim on the merits.

According to defendants examples of the interviews, when Martinelli was first interviewed by the police on September 28, 1999, he claimed that defendant had merely said, Come on, lets go, and he wanted Martinelli to follow him. In another interview the following day, Martinelli initially denied that defendant had told him what was going to happen to Morris. However, when pressed by the police as to whether he was lying, he began to equivocate:

A: Its like, you know what, I know he didnt tell me, but like I feel like he told me now, you know what I mean.

[] . . . [] A: Im scared about it because I dont want to say the wrong thing.

A: Carlene told them that I did know before. Thats what freaks me out too, you know.

Q: Heres what

A: And now Im thinking did this guy tell me or did he not tell me, you know what I mean. Now Im getting to that point

Q: Uh-huh.

A: you know. And now I dont know anymore, you now. And its like Im freaking out about this, cause I dont think this guy told me because

Q: Uh-huh.

A: you know, if he told me, I dont think Im gonna go follow this guy, you know, even back then

Q: Uh-huh.

A: you know. But then, you know, then again did he tell me and I went along with it because I was scared this guy might screw me over, too, if I didnt follow him or I dont know what to think anymore now.

Later during that same interview, Martinelli said, I dont think he told me, and subsequently responded, No, when asked, Did you know he was gonna kill her?

During an interview on October 1, 1999, Martinelli was again asked whether he had prior knowledge of defendants intent to kill Morris:

Q: But what happened is you heard him say like Lets go off this bitch, but you didnt think he was gonna do it until he did it?

A: I didnt think he even said that, you know what I mean?

[] . . . [] A: I heard him say, Lets go, Sivas. And then heat that time he was aboutsee, he was jamming.

[] . . . [] A: What Im trying to say is he was in front. I mean I heard him from the back as he finished what he was saying.

Q: And which was something like?

A: Something like, Im gonna off this bitch.

[] . . . [] A: you know what I mean. But I know he didnt say Im gonna kill this bitch, because I would have heard that for sure.

On July 10, 2000, more than nine months after the previous interviews and after Martinelli had been granted immunity, he was again questioned by the police and engaged in the following exchange:

Q: No, but what ImI dont care what he said. What Imwhat Im trying to eliminate here or confirm is did you and Mel talk about killing her. Did he tell you what he wanted to do?

A: No.
Q: Did he tell you I want you to follow me orif he did.

A: He did tell me to follow him.

Q: Okay.

A: you know what I mean.

Q: Why?

A: Who knows. He said, Come follow me, come on, lets go, so I did.

Q: And he said, Im gonna off this bitch.

A: He said he was gonna off this bitch.

Q: Yeah.

A: I have to say that.
Q: Okay.

A: So I knew. Lets say I knew. So that means I helped him.

Q: No.

A. in a sense.

Q: No.

A: So we should say yes.

Q: What do you mean?

A: in a sense. I knew he was gonna do it, right?

Q: Yeah. [] So you did know he was gonna do it, you did know he was gonna do it, he just said that he was.
A: He saidyou know, who knows what hes gonna do a hundred percent.

Q: Yeah.

A: see what I mean.

Q: He told you Im gonna off this bitch, follow me.

A: Yeah, lets say that.

Q: Well, I dont want to say it if its not true.

A: I dont know what he said exactly. I know that he said follow me.

Q: Something to that effect.

A: To that effect.

[] . . . [] A: And I told him to followhe told me to follow him.

Q: All right. So moments before this thing went down, he says, Hey, Im gonna off this bitch, follow me, or words to that effect?

A: Yeah.

We set forth these passages of the Martinelli police interviewsfrom the examples defendant included in his motion to dismissin such great detail because when read in their totality, as compared to the discrete responses taken out of context as defendant sets them forth, they portray a witness who was uncertain of what defendant told him prior to the Morris murder. Martinelli did not definitively state that defendant told him in advance of his intent to shoot Morris, many times reverting to his original position that he had no prior knowledge and other times indicating that defendant told him he was gonna off this bitch right before they left the Dodge trailer. In light of this equivocation, it cannot be said that Martinelli presented false testimony at trial when he denied having any communication with defendant before leaving the trailer other than defendant telling Martinelli to follow him. And it necessarily follows that the prosecution did not knowingly allow Martinelli to present false testimony.

The California Supreme Court recently considered the issue of prosecutorial use of false testimony in People v. Harrison (2005) 35 Cal.4th 208 (Harrison), a case cited by both parties here. In that case, during the investigation of a double homicide, a purported witness to the murders implicated the defendant during a police interview, claiming that he was present when defendant committed the murders and describing the killings in detail. (Id. at pp. 222-223, 241.) He later told an investigator with the district attorneys office that he was in fact not present and had no knowledge of the murders. (Id. at pp. 223, 241.) The prosecution knew the witness had recanted, yet during cross‑examination of the police officer who took the initial statement, the prosecutor elicited the detailed description of the murders originally given by the witness. (Id. at p. 241.)

On appeal, the defendant contended the prosecutor engaged in misconduct by eliciting this description even though he knew that the witness later recanted his statements. (Harrison, supra, 35 Cal.4th at p. 241.) The court rejected defendants argument, finding there to be no misconduct.[6] (Id. at p. 242.) The court stated,  Under well‑established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents . . . . [Citation.] But the prosecutor here did not know that [the witnesss] initial statement to the police was false; he merely suspected that was the case. When, as here, the prosecution has doubts as to the truth of a statement it intends to present at trial, it must disclose to the defense any material evidence suggesting that the statement in question is false. But, notwithstanding those doubts, the prosecutor may still present the statement to the jury . . . . (Ibid.)

If the prosecutor in Harrison did not commit misconduct despite a suspicion that the statement to the police was false, then a fortiori the prosecutor here did not commit misconduct, since there is no indication in the record that the prosecutor even suspected Martinellis denials to the police of any foreknowledge of defendants plan to murder Morris to be false. And even if the prosecutor had been suspicious, he complied with Harrisonby providing Martinellis statements to the defense.

Defendant attempts to distinguish Harrison by arguing that [h]ere, unlike Harrison, the record is uncontroverted that the prosecution had actual knowledge that Martinelli gave false testimony when he denied foreknowledge of the execution. As discussed above, this assertion is simply incorrect because Martinellis statements were equivocal on this issue.

Finally, even if the prosecution failed to correct testimony that it knew was false, which it did not, any such error would have been harmless. (See In re Wright (1978) 78 Cal.App.3d 788, 807-811.) A prosecutors misconduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] In other words, the misconduct must be of sufficient significance to result in the denial of the defendants right to a fair trial.  [Citation.] A prosecutors misconduct that does not render a criminal trial fundamentally unfair violates California law only if it involves  the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.    (Harrison, supra, 35 Cal.4th at p. 242.)

Here, even if there were any prosecutorial misconduct, it neither infected the trial with unfairness nor involved the use of deceptive or reprehensible methods. If indeed defendant told Martinelli in advance of his intent to kill Morris, such evidence would only have served to further incriminate defendant and undercut the defenses position that defendant did not commit the murder. During cross-examination of Martinelli, defense counsel questioned, And did youwere you told something, did Mr. Lunghi say something to you before you left the [] Dodge residence? Martinelli responded, I dont remember exactly what was said, but he did ask me to follow him. Defense counsel could then have used what defendant now claims to be Martinellis inconsistent statements to the police to impeach him, and the failure to do so suggests a deliberate, strategic determination to keep those statements from the jury since they were injurious to the defense. We cannot now second-guess that strategy, nor do we do we see how such a strategy could have prejudiced defendant.

Defendant argues that the prosecutions failure to correct knowingly false testimony that [Martinelli] did not know of the plan to execute Morris until after the shooting would have materially altered his credibility in the eyes of the jury such that it is . . . reasonably probable that the error affected the verdict. We reject such argument for two reasons.

First, this assertion is based upon defendants claim that [t]he prosecutions entire case rested upon Martinellis credibility, a claim that is simply not accurate. While Martinellis testimony was no doubt incriminating, there was significant additional evidence pointing to defendants guilt. Defendant was friends with Gerald Carpenter, and Morris had been subpoenaed to testify at a preliminary hearing in the murder case against Carpenter. Ruth Just testified that she had been at the Regency Islander Motel with defendant and Morris the night before Morriss death. This testimony contradicted defendants statement to the police that he did not know Morris and had never been to the motel prior to a few weeks after the murder, and it placed defendant and Morris together shortly before her death. Defendants thumbprint was found on the ice bucket recovered from Morriss car, and the ice bucket was identical to those used at the Regency Islander Motel, which corroborates Justs testimony that Morris and defendant were together the night before Morriss death. Defendant admitted to Deputy Hatchell that he smoked unfiltered Camel cigarettes, and his DNA matched that found on Camel cigarette papers found in Morriss car. At least one of those cigarettes had likely been purchased at Abduls Food & Liquor just moments before Morriss execution. Robert Farmer testified that defendant admitted killing Morris because she was going to testify against Carpenter, and Matin Moghadam testified that defendant threatened that he had killed people before. Finally, Del Roberton told Hatchell in an interview after the murder that he had seen defendant and Morris together in a parking lot, which again contradicted defendants denial that he knew Morris. In light of this evidence pointing to defendants guilt, it is incorrect that the prosecutions entire case depended on Martinellis credibility.

Second, we fail to see how such evidence would have impacted the jurys estimation of Martinellis credibility since he was already subject to questioning that thoroughly challenged his credibility. For example, defense counsel vigorously cross‑examined Martinelli at length about his inconsistent statements to the police concerning what happened to the murder weapon, getting Martinelli to admit that he lied during multiple police interviews when he initially told them defendant took the weapon with him. The jury also learned that Martinelli had multiple convictions for possession of weapons, including a sawed-off shotgun, a billy club, and a gun with the serial number removed, had an arrest for possession of methamphetamine for sale, and had served multiple sentences for these offenses. The jury also learned that Martinelli was a drug dealer who was himself heavily into drugs and was under the influence of methamphetamine at the time he witnessed Morriss execution. The defense also brought to light numerous other inconsistencies in Martinellis testimony, such as his testimony that they did not stop at a convenience store on the way to the scene of Morriss murder, when the receipt and contents of Morriss car showed otherwise, his testimony that defendant shot Morris over the top of the car, which was contrary to the forensic evidence showing that she was shot through the car from either someone in the passenger seat or just outside the vehicle, and his testimony that Morriss car was yellow or white, when it was in fact black. We fail to see how Martinellis equivocal statements about his advance knowledge of defendants intent to murder Morris would have further impeached his credibility.

B. The Trial Court Properly Instructed The Jury On The Law Of Accomplices

Section 1111 requires corroboration of accomplice testimony, providing in pertinent part that [a] conviction cannot be had upon the testimony of an accomplice unless it is corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . .[7] The trial court read CALJIC No. 3.19, which provided, You must determine whether the witness Sivas Martinelli was an accomplice as I have defined that term. [] The defendant has the burden of proving by a preponderance of the evidence that Sivas Martinelli was an accomplice in the crime charged against the defendant. Defendant contends this instruction created prejudicial error because the jury should have been instructed, either by the court sua sponte or at defense counsels request, that Martinelli was an accomplice as a matter of law pursuant to CALJIC No. 3.16,[8] in which case his testimony would have required corroboration pursuant to section 1111. We disagree.

1. The Trial Court Did Not Have A Sua Sponte Duty To Instruct The Jury That Martinelli Was An Accomplice As A Matter Of Law

 It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing a case are those principles closely and openly connected with the facts before the court, which are necessary for the jurys understanding of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 715, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Breverman (1998) 19 Cal.4th 142, 164-165; People v. Flannel (1979) 25 Cal.3d. 668, 678.) 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. [Citation.] (People v. Williams (1997) 16 Cal.4th 635, 679; accord People v. Fauber (1992) 2 Cal.4th 792, 834 [Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom.].)

As a preliminary matter, we reject defendants claim that the prosecution conceded and the trial court found that Martinelli was an accomplice as a matter of law. To be sure, during the hearing on jury instructions, there was extensive discussion on the issue of accomplice instructions. Counsel for defendant objected to the court giving the jury any instructions dealing with accomplices, namely CALJIC Nos. 3.0, 3.1, 3.10, 3.11, 3.12, 3.13, 3.14, 3.16, 3.18, and 3.19, arguing that the theory that Martinelli was defendants accomplice was totally inconsistent with the defense that Martinelli was in fact the killer. The prosecution agreed with defense counsel that the accomplice instructions were inapplicable. The court expressed surprise at defendants position on this issue, and then listened to argument from the defense and the prosecution as to why the jury should not be instructed on CALJIC No. 3.16, which would have informed the jury that Martinelli was defendants accomplice as a matter of law and that his testimony was subject to the rules requiring corroboration. Ultimately, the trial court agreed to forego CALJIC No. 3.16, instead instructing the jury on CALJIC No. 3.19, which left Martinellis status as an accomplice up to the jury. Nowhere does the record indicate that the trial court concluded Martinelli was an accomplice as a matter of law.

More importantly, it was not clear and undisputed that Martinelli was defendants accomplice. The jury was instructed, per CALJIC No. 3.10, that [a]n accomplice is a person who was subject to prosecution for the identical offense charged against the defendant on trial by reason of aiding and abetting. CALJIC 3.01, which the trial court also read to the jury, defined aiding and abetting as follows: A person aids and abets the commission of a crime when he or she: [] (1) With knowledge of the unlawful purpose of the perpetrator, and [] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

As noted above, Martinelli denied having advance knowledge of defendants intent to kill Morris. And the defense did not cross-examine him as to his statements to the police that defendant told him beforehand he was gonna off that bitch because that testimony was inconsistent with the defense theory that Martinelli was the killer. The only evidence presented at trial suggesting Martinelli knew ahead of time that defendant was going to execute Morris was Tyler Dodges testimony that Martinelli told him something like, You wont ever see her again, or, She wont be around anymore. At the same time, Tyler did not even recall that Martinelli was at the Dodge trailer that evening, which certainly put his credibility in question. In light of this record, the clear and undisputed facts did not establish Martinelli to be an accomplice as a matter of law. Accordingly, the trial court did not have a sua sponte duty to give CALJIC No. 3.16.

Defendant discusses at length a trial courts sua sponte duty to instruct on lesser included offenses, even when the offense are inconsistent with the defense. He then submits that [a] trial court is under a similar duty to instruct on accomplice liability, even when the instructions are inconsistent with the defense. We agree that an instructions inconsistency with the defense does not excuse a trial courts obligation to give such an instruction, but this was not what happened here. Rather, after listening to defense counsel explain why Martinelli was not an accomplice, the court properly agreed not to give the instruction because the evidence on Martinellis accomplice status was not clear and undisputed.

And even if the trial court had a sua sponte duty to instruct the jury that Martinelli was an accomplice as a matter of law and failed to do so, which was not the case, such error would not constitute grounds for reversal for two reasons. First, defendant would be barred by the doctrine of invited error from complaining about this purported error on appeal. The doctrine of invited error applies to estop a party from asserting an error when his own conduct induces the commission of error.  (People v. Perez (1979) 23 Cal.3d 545, 549‑550, fn. 3, quoting 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal,  266, p. 4257.) As is evident from the record, the court considered reading CALJIC No. 3.16 to the jury, which would have instructed that Martinelli was an accomplice as a matter of law, but defense counsel vehemently opposed such instruction, repeatedly insisting that it was contrary to the theory of defensethat Martinelli was the killer and that defendant was not involved. As defense counsel explained it, This is like the Judgeyour Honor telling the jurors that, in effect, that Mr. Martinelli ishas been telling you the truth, that he was merely a driver that helped [defendant] get away. My positionand, you know, he was the murderer. The murderer is not an accomplice. So the Courts telling them hes an accomplice as a matter of law. Its like telling them, well, Mr. Martinelli told the truth. All he did was help him drive away. This completely undercuts my defense, I think. The following colloquy then ensued:

THE COURT: If I follow your instructions and you dontneither one of you want 3163.16, then the jury makes the determination. And then you can ride the horse if he is convicted and say, Well, the Judge should have done that. Cause its a matter of law. [] But if both of you dont want it now, Ill put a note on it, Both District Attorney and Defendant and his two attorneys said that they object to it. And I hope and pray that you dont get in trouble. [] Is that what you want?

MR. KAPLAN [counsel for defendant]: Yes.

MR. BAKER [the prosecutor]: Yes.

MR. HAUPTMAN [counsel for defendant]: Yes.

DEFENDANT: Yes.

THE COURT: And have you talked to Mr. Lunghi about that?

DEFENDANT: Yes.

MR. KAPLAN: For a couple of years now.

THE COURT: Huh?

MR. KAPLAN: Many, many, many times, hours and hours. And Ive carefully considered it and discussed it with Mr. Hauptman, Ive discussed it with other attorneys, Ive slept on it at night, Ive stayed awake at night considering it

THE COURT: Well

MR. KAPLAN: thinking from it in every possible way.

[] . . . [] THE COURT: Now, if you label Mr. Martinelli as an accomplice as a matter of law, most of the time the DAs Office doesnt like that. But its been rare that Ive seen a defense lawyer who didnt like to have the keythe star witness called an accomplice.

MR. KAPLAN: I know that.

THE COURT: Mr. Lunghi, in any event

DEFENDANT: No problem.

THE COURT: your lawyers have given a lot of thought to this.

DEFENDANT: No, we went over this a long time ago.

THE COURT: And you concur?

DEFENDANT: I agree.

THE COURT: You agree with your lawyers?

DEFENDANT: I agree with them.

THE COURT: And you realize you couldnt raise this on appeal if you got convicted?

DEFENDANT: I realize that, your Honor.

THE COURT: And if your appellate lawyer says, Why in the world did you do that?

DEFENDANT: Ill have an answer.

Clearly, the court considered whether it was obligated to give CALJIC No. 3.16 but ultimately did not do so at the behest of defense counsel, even going so far as to advise defendant that he would be barred from raising the issue on appeal if he were convicted. This is the epitome of invited error.

In addition, there was sufficient evidence corroborating Martinellis testimony, such that any error would have been harmless. (People v. Miranda (1987) 44 Cal.3d 57, 100 [It has been recognized that the failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record.]; accord, People v. DeJesus (1995) 38 Cal.App.4th 1, 25.) To determine if sufficient corroboration exists, we must eliminate Martinellis testimony from the case and examine the remaining evidence to determine if there is any inculpatory evidence tending to connect defendant to the crime. (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.) The evidence required for corroboration of an accomplice need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. [Citations.] Moreover, evidence of corroboration is sufficient if it connects defendant with the crime, although such evidence is slight and entitled, when standing by itself, to but little consideration. [Citations.] (People v. Holford (1965) 63 Cal.2d 74, 82; see also People v. Williams, supra, 16 Cal.4th 635, 680‑681; People v. Hathcock (1973) 8 Cal.3d 599, 617.) The corroborating evidence may be entirely circumstantial. [Citations.] The corroborating evidence may be  slight and entitled to little consideration when standing alone.  [Citations.] Only a portion of the accomplices testimony need be corroborated, and the corroborative evidence need not establish every element of the offense charged. [Citation.] All that is required is that the evidence    connect the defendant with the commission of the crime in such a way as may reasonable satisfy the jury that the [accomplice] is telling the truth.    [Citation.] (People v. DeJesus, supra, 38 Cal.App.4th at p. 25.)

The evidence detailed abovefrom Just, from Farmer, from Moghadam, from Roberton, defendants DNA, the cigarettes, the fingerprint on the ice bucketprovides ample evidence corroborating Martinellis testimony under this standard.

2. Defendant Was Not Deprived Of Effective Assistance Of Counsel By His Counsels Objection To Accomplice Instructions

We likewise reject defendants argument that his counsels insistence that the court not instruct the jury on CALJIC No. 3.16 constituted ineffective assistance. In People v. Ledesma (1987) 43 Cal.3d 171, our Supreme Court explained the showing necessary to obtain a reversal of a conviction on ineffective assistance of counsel grounds:  A convicted defendants claim that counsels assistance was so defective as to require reversal of a conviction . . . has two components. [Citations.] First, the defendant must show that counsels performance was deficient. [Citations.] Specifically, he must establish that counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] [] In determining whether counsels performance was deficient, a court must in general exercise deferential scrutiny. (Id. at p. 216.) The court then explained the second component: [A] criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim. (Id. at p. 217.)  The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confiden