P. v. Barber

Filed 8/23/07 P. v. Barber CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Roderick Barber was charged and convicted by a jury of first degree murder. (Pen. Code,  187, subd. (a), 189.)[1] Allegations that he personally used and personally and intentionally discharged a firearm in the commission of murder ( 12022.53, subds. (b), (c) & (d)), had a prior conviction for a serious felony ( 667, subd. (a)), and had a prior strike ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) were found true.

Barber was sentenced to 105 years to life as follows: 25 years to life for the murder, plus 25 years to life for the gun use enhancement, both doubled as a result of the prior strike conviction, plus five years for the prior serious felony conviction.

Barber contends the trial court erred in its instructions to the jury, including failing to instruct on corroboration of accomplice testimony; admitting an audiotape of a witness's interview with police; and doubling his sentence for the gun use enhancement. Though we conclude that the court erred in failing to instruct on accomplice testimony, the error was not prejudicial. Therefore, we affirm with instructions to the trial court to correct the sentencing error.

STATEMENT OF FACTS

Barber shot and killed Darrien Mays in Mays' Long Beach apartment on the evening of April 11, 1998. The killing was witnessed by Ronna Criss, Mays' present and Barber's former girlfriend and mother of his child, and R., a 15-year-old prostitute that Barber had met in Las Vegas earlier that month.[2] Sometime between their arrival in Los Angeles and the date of the shooting, R. saw Barber with a pistol.

On April 11, 1998, Barber, accompanied by R., drove to the apartment complex where Mays lived. As they walked down a hallway, Barber embraced R., asking her to tell him what she saw in the area. When first interviewed by the police after the shooting, R. stated that after the embrace she and Barber left and returned to the car. Barber gave her the gun, telling her to put it under her clothes. After reentering the complex, Barber took the gun from her. When she testified at trial, however, she denied that she had possession of the gun any time before the shooting.

They stopped at the door of an apartment occupied by Mays, Criss, and her infant daughter. Barber held the gun down by his side.

When Barber knocked, Mays answered the door. When Mays saw Barber, he looked frightened. R. felt nervous and sick and went to the laundry room and vomited. Barber entered the apartment alone.

Barber asked Mays where "Bird" was. Mays said he would call him and walked toward the bedroom. Barber followed. They returned from the bedroom and went into the living room. They talked in "raised voices." Mays returned to the dining room table, and Barber followed. Words were exchanged.

Barber called out for "Baby Girl" to come into the apartment. When R. entered the apartment, Mays was sitting at the dining room table, and Barber was pointing the gun at him. Barber said, "[Y]ou didn't care for my kid." Barber asked Mays if he was ready to die, and "Do you want to die?" Barber then fired four or five shots at Mays. Both Criss and R. witnessed the shooting, though R. testified she only heard the shots.

Barber and R. then left the apartment. Mays followed them out and collapsed in front of the apartment. Mays died from a gunshot wound to the back that went through his lung and heart. He also had gunshot wounds to the forearm and thigh.

R. ran back to the car. When Barber returned to the car a short time later, he gave the gun to R., telling her to grab it with the sleeve of her shirt and put it in the side of the car door. They drove to a 7-Eleven, and R. passed out. When she awoke, she asked Barber why he shot Mays. Barber said Mays and his friends tried to handcuff and kill him.

Some time after the shooting, R. saw Barber and "J" dismantle the gun. R. and Barber drove to a grocery store where Barber dropped the gun barrel in the parking lot.

On April 27, 1998, R. took the bus back to Las Vegas. Barber paid for her bus ticket and gave her drugs to carry back to a friend. When she arrived in Las Vegas, she went to her mother's house and told her everything that had happened. R. told the police everything about the murder and the drugs. She was arrested and spent 18 months in juvenile hall and was put on probation for trafficking in narcotics.

Detective Prell investigated the crime scene. He saw bullet holes in various places in the dining room and found several nine-millimeter casings in Mays' apartment.

Detectives Prell and Vacarro interviewed R. on April 30, 1998. Detective Prell showed her two photographic lineups that did not contain Barber's picture; she did not identify anyone.

On May 1, 1998, Detectives Prell and Vacarro drove R. to a parking lot and she identified the car Barber had used when they drove to Los Angeles. The car was searched. In the car was an application for renewal of a California identification or driver's license in the name of Gary Crawford and a pawn slip in the name of Gary Crawford. Using this application, Detective Prell obtained a copy of the DMV record for Gary Crawford. The DMV record had Barber's picture, but his true name was Roderick Terrell Barber.

On May 21, 1998, Detective Vacarro again interviewed R. The interview was recorded. He showed her some pictures. She identified pictures of Barber and "J." She was "100 percent positively sure" about her identifications.

On June 17, 1998, Detective Prell showed Ronna Criss a six-pack photographic lineup. She identified Barber from the lineup as the shooter. She subsequently identified him at the preliminary hearing and at trial.

DISCUSSION

Accomplice Instructions

A trial judge in a criminal trial must instruct the jury on the general principles of law that are relevant and raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) A court has a sua sponte duty to instruct on accomplice testimony where there is substantial evidence that a witness is an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.) An appellate court independently reviews a claim of instructional error. (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 163.) "'"Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.". . .' . . . Instructional error will not result in a reversal of judgment unless the reviewing court finds that a miscarriage of justice has resulted from the error, such that there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have resulted." (Ibid., citations omitted.)

Barber requested that the jury be instructed on the rules governing accomplice testimony in assessing R.'s testimony.[3] In denying Barber's request, the trial court quite properly first analyzed whether R. could have been prosecuted as an accomplice. (People v. Boyer (2006) 38 Cal.4th 412, 466.) In doing so, however, it erred in two distinct ways. First, it set forth the facts as if they were undisputed rather than noting that there were significant factual disputes. "The only thing [R.] did was touch the gun a couple of times, and yes she [knew] he [had] a gun." While there was evidence that supported this description, there was also evidence that R. had not only touched the gun, but hidden it under her clothes at Barber's behest, accompanied him into the apartment complex with it and, at his request, returned it to him when they reached Mays' apartment. On an earlier entry, she had, again at Barber's request, embraced him for the stated purpose of looking around the hallway to see if any other people were present. Second, having thus erred, the court set itself up to further err by concluding that "there is no substantial evidence to provide that set of instructions." Having reached this conclusion, the court declined to instruct on accomplice testimony.

Contrary to the conclusion reached by the trial court, we conclude that R. may have been an accomplice even under the trial court's restrictive analysis. "Section 1111 defines an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.'. . . In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. . . . That section defines principals to include '[a]ll persons concerned in the commission of a crime whether they directly commit the act constituting the offense, or aid and abet in its commission . . . .'" (People v. Fauber (1992) 2 Cal.4th 792, 833, citations omitted.) As we have noted, supra, the evidence concerning R.'s conduct was in conflict. As Barber points out, however, there was evidence that supported a conclusion that R. aided him in the commission of the offense and did so with the requisite knowledge and intent. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 105.) In addition to what we have already noted, Barber notes that R. had spent a substantial amount of time with him, both in Long Beach and traveling back and forth between there and Las Vegas, awaited his call to enter the apartment, and took the gun from him immediately after the shooting. While this behavior could be characterized as non-culpable, it was not so as a matter of law. It was for the jury, under proper instruction, to make that determination. This, in turn, was necessary in order for the jury to decide that if it determined R. was an accomplice, whether her testimony was sufficiently corroborated to be considered in convicting Barber.

In People v. Garrison (1989) 47 Cal.3d 746, 772-774, witness Roelle admitted his presence in the area of a dump when the defendant shot and killed the victim. He admitted thereafter helping to move the victim's body, then accompanying defendant to her residence while the defendant took her property. He denied being at the scene of the homicide or knowing of defendant's intent. He admitted cooperating with defendant out of fear for his own life. The jury was instructed it must first determine if Roelle was an accomplice before it could consider his uncorroborated testimony. The defendant contended that it should have been instructed that Roelle was an accomplice as a matter of law. Our Supreme Court concluded that the jury was properly instructed.

In the instant matter, R. was aware of the weapon before its use, engaged in surreptitious behavior immediately prior to the commission of the offense, secreted the weapon in her dress until shortly before it was used, and helped to conceal it after the offense. On these facts the jury should have been instructed to determine if she was an accomplice and, if so, whether her testimony was sufficiently corroborated. The trial court's failure to so instruct was error.[4]

The error, however, was not prejudicial. (People v. Hayes (1999)21 Cal.4th 1211, 1271.) "Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense." (Ibid.) The evidence "is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." (People v. Fauber, supra, 2 Cal.4th 792, 834.) Unlike many cases where the purported accomplice testimony provides the only direct evidence of the offense and the record must be scoured for corroboration, here there was an independent eyewitness to the killing. R.'s version of the shooting was also corroborated by the police investigation and the discovery of the five empty cartridge casings at the crime scene.

The Court Correctly Gave CALJIC No. 2.01

CALJIC No. 2.01 is a standard instruction on the treatment of circumstantial evidence. Without objection, the trial court gave the jury CALJIC No. 2.01,[5] the standard instruction on the use of circumstantial evidence to find guilt. (People v. Bonilla (2007) 41 Cal.4th 313, 338.) Barber contends the trial court should have instructed the jury with CALJIC No. 2.02,[6] which instructs on the sufficiency of circumstantial evidence to prove mental state, instead of CALJIC No. 2.01. We disagree.

"'"'In determining whether error has been committed in giving or not giving jury instructions, we consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions . . . .'"'" (Thompson v. County of Los Angeles, supra, 142 Cal.App.4th 154, 163.)

The Use Note to CALJIC No. 2.01 states: "CALJIC 2.01 and CALJIC 2.02 should never be given together. This is because CALJIC 2.01 is inclusive of all issues, including mental state and/or specific intent, whereas CALJIC 2.02 is limited to just mental state and/or specific intent. Therefore, they are alternative instructions. . . . If the circumstantial evidence relates to other matters, . . . as well as specific intent or mental state, CALJIC 2.02 should be given . . . ." (CALJIC No. 2.01 (Spring 2007 ed.) p. 33; see People v. Marshall (1996) 13 Cal.4th 799, 849.)

CALJIC No. 2.02 should be used instead of CALJIC No. 2.01 "when the defendant's specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence." (People v. Honig (1996) 48 Cal.App.4th 289, 341.) In Honig, the court held there was no error in giving CALJIC No. 2.01, rather than CALJIC No. 2.02, because the evidence of mental state did not rely substantially on circumstantial evidence. (Honig, at p. 341.) Rather, the defendant's mental state was "overwhelmingly" established by the evidence and was conceded in part by the defendant's own testimony. (Ibid.)

Similarly, the evidence of Barber's mental state did not rely substantially on circumstantial evidence. After arguing with the victim, Barber pointed a gun at him. Barber then asked, "Do you want to die?" He then shot the victim. Afterwards, Barber explained to R. that he shot the victim because he had previously tried to kill Barber. All of this direct evidence strongly showed that Barber intended to shoot and kill the victim. A finding on Barber's mental state did not rest substantially on circumstantial evidence; Barber's own statements reflected his mental state.[7]

Barber claims that by failing to give CALJIC No. 2.02, the jury was precluded from finding that he lacked the mental state for first degree murder. He argues there was evidence that he was physically assaulted by Mays and his friends and "probably humiliat[ed]." He argues this evidence could give rise to a reasonable inference that he killed Mays in the heat of passion. The argument is without merit.

There is no evidence that the prior incident and the killing occurred sufficiently close in time so that Barber was acting under the direct and immediate influence of the quarrel or heat of passion. (See CALJIC No. 8.43 [duration of cooling off period]; and see People v. Daniels (1991) 52 Cal.3d 815, 868 [because the sufficiency of provocation and adequacy of cooling off period are measured against objective standards, a court may determine those issues as a matter of law in deciding whether instructions are required].)

For these reasons, we also reject Barber's contention that the trial court erred in failing to instruct sua sponte with CALJIC No. 8.73 [evidence of provocation to decide between first and second degree murder].)

CALJIC No. 2.27

The trial court gave CALJIC No. 2.27, stating that the testimony of a single witness, if believed, may be sufficient proof of a fact.[8] Barber contends the trial court erred in failing to limit the instruction to witnesses whose testimony did not require corroboration. He contends this error heightened the error in failing to give accomplice instructions. We disagree. As discussed above, though the trial court erred in failing to give the requested instructions, the error was not prejudicial.

CALJIC No. 2.22

Barber asserts the trial court erred in failing to give CALJIC No. 2.22, which instructs jurors to refrain from deciding facts by the number of witnesses who testify to such fact. (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885 [substance of CALJIC No. 2.22 should be given "in every criminal case in which conflicting testimony has been presented"].)

The trial court had no duty to give CALJIC No. 2.22 because there was no conflicting testimony as to any fact relating to Barber's guilt. The two eyewitnesses gave substantially similar testimony. The discrepancies in the testimony of R. and Ronna Criss cited by Barber--e.g., Criss said the gun was silver, while R. said the gun was black; Criss said the victim did not hold the infant while Barber was in the apartment, while R. testified that the victim handed the infant to Criss--were minor and not related to any element of the charged offense or to identification of Barber as the shooter.

Admission of Audiotape of R.'s Interview with Police

At trial, the prosecutor played an audiotape of R.'s interview in which she identified Barber from photographs. Barber asserts admission of the taped interview was error because the audiotape was not authenticated. This argument is without merit. Authentication of a sound recording is sufficient where a witness testifies that the recording is accurate. (People v. Spencer (1963)60 Cal.2d 64, 77-78 & fn. 5; see also People v. Patton (1976) 63 Cal.App.3d 211, 220 [recording was properly authenticated where participant in a phone conversation testified tape recording of conversation was complete and accurate].)

At trial, R. testified that she had spoken to Detective Vacarro and he showed her some pictures to see if she could identify Barber and "J." On the audiotape, R. identified photographs of Barber and "J." After the audiotape was played, R. identified photocopies of the photographs that she had identified of Barber and "J" to Detective Vacarro. She also identified photocopies of the backs of the photographs that she had signed and dated.

Barber also suggests that the statement was inadmissible hearsay. This argument too is without merit. The audiotape was a prior identification of Barber, an exception to the hearsay rule. (Evid. Code,  1238.)[9] R. identified Barber at trial. She also testified as to her prior identification of Barber. R.'s identification of Barber as the shooter was confirmed by Ronna Criss's identifications of Barber both in court and in a photographic lineup. In light of this evidence, there is no reasonable probability Barber would have received a better result if R.'s taped statement had been excluded. (See People v. Rodrigues (1994)8 Cal.4th 1060, 1117-1118 [any error in admission of prior identification was harmless in light of other identifications made by witness].)

The Trial Court Erred in Doubling the Sentence for the Gun Use Enhancement

Barber was sentenced to 25 years to life for the murder, plus 25 years to life for the gun use enhancement ( 12022.53, subd. (d)), both of which were doubled as the result of the prior strike conviction ( 667, subd. (e)(1)), plus five years for the prior serious felony conviction. Barber contends the trial court erred in doubling the term for the firearm enhancement under the Three Strikes law. The prosecutor agrees that the court erred in this respect.

The trial court is instructed to issue an amended abstract of judgment to correct the sentencing error noted in this opinion. In all other respects, the judgment of the trial court is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Tomson T. Ong, Judge

Superior Court County of Los Angeles

______________________________

Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] We use the witness's initial because she is a minor.

[3] Barber requested: (1) CALJIC No. 3.10-defining accomplice, (2) CALJIC No. 3.11-requiring testimony of accomplice to be corroborated, (3) CALJIC No. 3.12-defining sufficiency of evidence to corroborate accomplice's testimony, (4) CALJIC No. 3.13-testimony of one accomplice cannot corroborate another, (5) CALJIC No. 3.14-criminal intent necessary to make one an accomplice, (6) CALJIC No. 3.18-accomplice's testimony should be viewed with caution, (7) CALJIC No. 3.19-defendant has burden of proof to show accomplice liability, (8) CALJIC No. 2.50.2-defining preponderance of the evidence.

[4] Had R. been convicted of the murder on the theory that she aided and abetted in its commission, we would be hard pressed to conclude that there was not substantial evidence of her guilt.

[5] The trial court gave CALJIC No. 2.01 as follows: "However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [] Also, if the circumstantial evidence permits two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt the interpretation that points to the defendant's innocence, and reject that interpretation that points to his guilt. [] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."

[6] CALJIC No. 2.02 states: "The [specific intent] [or][and][mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged [in Count[s] . . . ], [or] [the crime[s] of . . . , which [is a] [are] lesser crime[s]], [or] [find the allegation . . . to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion.

"Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."

[7] Barber relies on People v. Salas (1976) 58 Cal.App.3d 460, which held that failure to instruct with CALJIC No. 2.02 in a great bodily injury case was reversible error. His reliance is misplaced. That case has been disapproved by the Supreme Court. (See People v. Wolcott (1983) 34 Cal.3d 92, 109.)

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

[9] Evidence Code section 1238 states: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and: [] (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; [] (b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and [] (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time."