P. v. Lagunas CA4/2 ( 2013 )

Filed 7/24/13 P. v. Lagunas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054693
v. (Super.Ct.No. RIF136999)
VANESSA LAGUNAS et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Affirmed.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant, Vanessa Lagunas.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant, Denetric Adams.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and
Appellant, Ricardo Lagunas.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
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General, Julie L. Garland, Assistant Attorney General, Lise S. Jacobson, and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
During a single trial, with separate juries for each defendant, Vanessa Lagunas,
Ricardo Lagunas, and Denetric Adams (defendants) were convicted of first degree
murder for luring, ambushing, and shooting Vanessa’s1 boyfriend, Mark Enoch (Pen.
Code, § 187, subd. (a)2). Ricardo’s jury also found true that Ricardo personally
discharged a firearm (§ 12022.53, subd. (b)) and committed the special circumstance of
murder by lying in wait (§ 190.2, subd. (a)(15)). Denetric’s jury found true that Denetric
personally discharged a firearm, causing death to another, not an accomplice (§ 12022.53,
subd. (d)), and committed the special circumstance of murder by lying in wait (§ 190.2,
subd. (a)(15)) and felony murder (§§ 211, 190.2, subd. (a)(17)(A)). Vanessa’s jury found
true allegations that she was a principal, and at least one other principal was armed with a
firearm (§ 12022, subd. (a)(1)).
The trial court sentenced Ricardo to life without the possibility of parole, plus 10
years for the firearm enhancement. Denetric was sentenced to life without the possibility
of parole, plus an indeterminate term of 25 years to life for the firearm enhancement. The
1To avoid confusion, we will use first names in this opinion, with the exception
of Benjamin Lopez, Carlos Aguilar, and Deputies Joshua Cail and Ryan Bodmer.
2 Unless otherwise noted, all statutory references are to the Penal Code.
2
trial court sentenced Vanessa to an indeterminate term of 25 years to life, plus one year
for the firearm enhancement.
Defendants each individually appeal, raising numerous claims of instructional
error, evidentiary error, improper use of shackles during trial, and cumulative error. As
explained below, we conclude there was no prejudicial or cumulative error, and affirm
the judgment as to each defendant.
II
FACTS
During the summer of 2006, Mark Enoch began a relationship with Vanessa.
Mark lived with his mother, Nancy, and Vanessa lived in an apartment with Denetric,
Anthony Vaughn, and another man. Vanessa’s brother, Ricardo, sometimes visited
Vanessa.
In January 2007, Denetric called Nancy Enoch and told her he was Vanessa’s
boyfriend. He told Nancy that if Mark did not leave Vanessa alone, Denetric was “going
to kill him and the whole family,” and blow up Mark’s car. Vanessa was pregnant at that
time. Denetric insisted he was the father of Vanessa’s baby, and said he could cause a
miscarriage if he wanted to. Nancy took the threats seriously but did not call the police
because she feared this would make matters worse. A few days later, Nancy told Mark
about the call. Mark told Nancy not to worry, and said, “It’s all talk.”
In April 2007, Vanessa requested that Nancy accompany her during a trip to visit
Vanessa’s grandmother in Norwalk. During the trip, Vanessa complained that she did
not want to be burdened by a child and offered to let Nancy raise her baby. Vanessa also
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told Nancy that Ricardo did not like “[W]hite guys.” Therefore Vanessa could not
introduce Ricardo to Mark and Mark had to be careful. During the evening of May 24 or
25, 2007, Nancy overheard Mark arguing with Vanessa on the phone. Mark told Vanessa
he would no longer pay her cell phone bill.
During the evening of May 25, 2007, Ricardo drove to Vanessa’s apartment,
accompanied by Benjamin Lopez and Carlos Aguilar. According to Aguilar, upon
arriving at Vanessa’s apartment, he heard defendants talking about robbing, shooting, and
killing Vanessa’s “white boyfriend,” Mark, whom they said had fathered Vanessa’s
unborn child. They were talking about killing Mark because he had been threatening
Vanessa and her mother. Aguilar and Lopez were not asked to assist.
Aguilar heard defendants discuss a scheme of Vanessa calling Mark and asking
him to pick her up; Vanessa persuading Mark to get out of his car; Ricardo taking his car;
and then Denetric and Ricardo shooting Mark. Aguilar did not hear any discussion about
stealing a car. Aguilar saw Denetric retrieve two guns, a revolver and a semi-automatic,
and hand the semi-automatic to Ricardo. Lopez said he heard defendants discuss a plan
to either “beat up” Mark or rob and carjack him.
At approximately 2:00 a.m., on May 26, 2007, Vanessa called Mark and asked
him to pick her up. Vanessa told him she was stranded and needed a ride home. Mark
agreed to pick her up. Ricardo drove Vanessa, Denetric, Aguilar, and Lopez to a
warehouse. Ricardo, Denetric, Aguilar and Lopez all hid behind a cinder-block wall,
waiting for Mark to arrive to pick up Vanessa. Ricardo and Denetric were each carrying
a gun. Vanessa waited for Mark under a streetlight.
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When Mark drove up to Vanessa, she approached the front passenger door,
Denetric and Ricardo ran toward the car, shooting at Mark’s car. Aguilar heard six to
eight shots fired. Vanessa ran away and hide behind a tree. Aguilar and Lopez ran back
to Ricardo’s car. After the shooting, defendants also returned to Ricardo’s car. Ricardo
told the others he had not fired any shots because his gun had jammed. Denetric said he
fired all his bullets.
Mark managed to drive away and call 911. He told the dispatcher he had been
shot in the chest and desperately needed help. He said he did not know who shot him but
believed his girlfriend set him up. He told the dispatcher he did not know where he was.
He thought he was in San Bernardino and had driven into a ditch a half-mile from where
he had been shot.
Deputy Joshua Cail was dispatched in response to Mark’s call and found him
pulled over in a remote area in Perris. There were gunshot holes in the windows and
body panels of Mark’s car. Mark told Cail what had happened and that two males, whom
he did not know, shot him. He said his girlfriend was present during the shooting.
Paramedics transported Mark to the hospital, where he died from a bullet wound to his
chest. He had several gunshot wounds to his right side, chest, and leg.
Meanwhile, after the shooting, Ricardo drove back to Vanessa’s apartment with
Lopez, Aguilar, Vanessa and Denetric. Denetric dropped off the guns at the apartment,
while the others waited in the car. Denetric returned to the car around 3:00 a.m. and
defendants, Lopez, and Aguilar drove to a motel in Orange County, where they spent the
night and remained for 10 to 12 hours. While at the motel, Vanessa called Mark’s
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mother, Nancy, and his sister, Cheryl Enoch, and told them various false stories about
what had happened to her and Mark.
That afternoon, Ricardo left the motel with only Lopez and Aguilar, and dropped
them off in Norwalk. Denetric and Vanessa also left. A few hours later, Vanessa and
Denetric were arrested. Ricardo was arrested over a month later.
Vanessa told the 911 operator that Mark’s family was claiming she killed him
that night but she had not done anything, and she did not want the police to think she was
trying to hide. Vanessa said she was worried about Mark because she had not been able
to reach him by phone. Vanessa claimed she had been walking all night and was on a dirt
road somewhere in Mead Valley.
During Vanessa’s recorded statement to sheriff’s detectives, she essentially
repeated what she had told the 911 operator. She also said Mark was dangerous, she
feared him, and he had threatened to take her baby from her when it was born.
Vanessa changed her story when Deputy Ryan Bodmer told her that Denetric and
Vanessa’s cell phones had provided tracking information on her location. Vanessa then
told Bodmer three Mexican gang members came to her apartment while Denetric was
there. The gang members said they wanted to rob Mark and scare him. They forced her
to call Mark. She claimed she did not believe they were going to take his car or shoot
him. Vanessa said she and Denetric were forced to accompany the gang members and
Denetric was pushed into the car. After shooting at Mark’s car, the gang members drove
her to a hotel in Buena Park.
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Evidence Against Denetric
Denetric stated during his recorded statement to sheriff’s detectives that he was
Vanessa’s boyfriend and he had suspected that she was cheating on him. He believed
Mark was the father of an earlier failed pregnancy. In addition, Mark had threatened
Denetric, Vanessa, and their families. Denetric told three inconsistent versions of what
had occurred during the night of the shooting. During his third and final version,
Denetric said that everyone was upset at Mark for making threats. The group came up
with a plan to have Vanessa meet Mark, and the others would take his car and beat him
up. Vanessa was to lure Mark out of his car, while everyone else waited behind a wall.
Denetric was told to use his gun on Mark. When Mark arrived, Ricardo ordered him out
of his car but Mark drove off. One of Ricardo’s friends, “Spooky,” fired at Mark,
emptying his revolver. Denetric and Ricardo’s guns jammed. After the shooting, they
returned to Vanessa’s apartment so that they could retrieve their cell phones. They then
all went to a hotel in Buena Park.
III. ADMISSIBILITY OF EVIDENCE OF DENETRIC’S THREAT TO KILL MARK
Vanessa contends the trial court abused its discretion in allowing evidence that
Denetric called Nancy and threatened to kill Mark and his family. Vanessa argues the
evidence was inadmissible for three reasons: (1) It was irrelevant and unduly prejudicial
under Evidence Code section 352; (2) it was inadmissible under People v. Aranda (1965)
63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton),
because it constituted extrajudicial, incriminating statements by a non testifying
codefendant; and (3) it constituted inadmissible hearsay.
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A. Factual and Procedural Background
Nancy testified during trial that Denetric called her in January 2007. When the
prosecutor asked Nancy how Denetric identified himself when he called, defense counsel
objected on hearsay and Aranda/Bruton grounds. The trial court summarily overruled the
objection. Nancy then testified that Denetric identified himself as Vanessa’s boyfriend
and told Nancy that Mark had better leave Vanessa alone, and if he did not, Denetric was
going to kill him and his whole family. Denetric also threatened to blow up Mark’s car.
Denetric sounded serious and told Nancy Vanessa was pregnant with his child. He was
shouting during the call.
B. Relevancy and Undue Prejudice Grounds
The People argue on appeal that Vanessa’s objections to admissibility of evidence
of Denetric’s threat to kill Mark were forfeited because she did not assert the grounds in
the trial court. Regardless of whether Vanessa forfeited the objection, it lacks merit
because Nancy’s testimony that Denetric threatened to kill Mark was highly probative
regarding Vanessa’s and her companions’ motive and intent to kill Mark. We conclude
the probative value of the evidence substantially outweighed any prejudicial impact it
might have under Evidence Code section 352.
Under Evidence Code section 352, the trial court has discretion to exclude relevant
evidence “‘if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.’ The trial court’s
exercise of discretion in admitting evidence under Evidence Code section 352 will not be
8
disturbed unless the court acted in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. [Citations.]” (People v. Yovanov (1999) 69
Cal.App.4th 392, 406 (Yovanov).) The prejudice which exclusion of evidence under
section 352 is designed to avoid is not the prejudice “to a defense that naturally flows
from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is
prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is
“prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.’” (People v. Karis (1988) 46
Cal.3d 612, 638 (Karis).)
Vanessa argues evidence that Denetric threatened to kill Mark was irrelevant
because Nancy and Denetric’s phone conversation was not between coconspirators and
there was no evidence Vanessa ever knew about the threat or that Mark’s awareness of
the threat affected their relationship. Vanessa argues that the People did not meet their
burden of proving that, when Denetric threatened to kill Mark in January 2007, he and
Vanessa had already conspired to commit the crime. Rather, the evidence showed that
the conspiracy did not arise until the night of May 25, 2007. Also, the requisite overt acts
for the conspiracy, of providing guns and ammunition, calling Mark, and hiding before
ambushing him, did not occur until that night.
Although Denetric’s threat to kill Mark may have been made several months
before defendants conspired to kill Mark, the evidence was highly relevant to proving
Denetric and Vanessa’s intent and motive, as conspirators, to kill Mark. Although
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Vanessa may not have ever been aware of the threat, there is substantial evidence that she
conspired with Denetric and Ricardo to murder Mark, and the murder arose from her
involvement with both Denetric and Mark, her infidelity, Denetric’s jealousy because of
Vanessa’s involvement with Mark, and Vanessa’s pregnancy and uncertainty as to who
the father was. Because Vanessa was tried as a coconspirator and aider and abettor of
Mark’s murder, evidence of the coconspirators’ motive and intent to kill, was relevant to
show they conspired to murder Mark, and that it was foreseeable Denetric would shoot
Mark. (People v. Spector (2011) 194 Cal.App.4th 1335, 1394, 1397 (Spector).)
“[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is permitted in admitting
evidence of its existence.” (People v. Lopez (1969) 1 Cal.App.3d 78, 85.)
Citing Spector, supra, 194 Cal.App.4th 1335, Vanessa argues that the threat was
too attenuated to be relevant. The threat was made to a third party (Nancy) in January
2007, four or five months before Mark was murdered in May 2007. In Spector, the court
stated that statements of intent, reflecting on a defendant’s state of mind, are “‘admissible
unless the circumstances in which the statements were made, the lapse of time, or other
evidence suggests that the state of mind was transitory and no longer existed at the time
of the charged offense.’ [Citation.]” (Spector, supra, 194 Cal.App.4th at p. 1395,
quoting Karis, supra, 46 Cal.3d at p. 637.)
The court in Spector rejected the defendant’s argument that evidence he had made
generic threats to kill was inadmissible as too remote because the threats were made
approximately 10 years before the charged murder. (Spector, supra, 194 Cal.App.4th at
10
p. 1397.) The court in Spector stated: “other evidence to be presented at trial would
show a decades-long ‘history of acts that indicate . . . violence toward women,’ and
therefore this threat was part of a ‘continuing pattern.’ We agree this long history tends
to demonstrate the sincerity with which Spector uttered these words, and the fact that his
‘state of mind was [not] transitory and [still] existed at the time of the charged offense.’
[Citation.]” (Spector, supra, 194 Cal.App.4th at p. 1397.)
Here, there was not a long history of defendants making threats against Mark.
Nevertheless, the trial court did not abuse its discretion in allowing the evidence because
Denetric’s threat was not too attenuated; the threat was sincere and demonstrated a
preexisting intent and motive by one of the coconspirators to kill Mark, under the same
motivating conditions that continued to exist up until the time of the murder. The threat
was not generic. It was specifically against Mark, the victim of the charged offense, and
involved Vanessa, a coconspirator. Furthermore, the threat was made within five months
before the murder, while Vanessa was still pregnant and had remained in contact with
Mark. Under such circumstances, the trial court did not abuse its discretion in allowing
Nancy’s testimony regarding Denetric’s threat to kill Mark. The trial court reasonably
found that the highly probative nature of the evidence substantially outweighed the
danger of undue prejudice from its admission. (§ 352; Yovanov, supra, 69 Cal.App.4th at
p. 406; Karis, supra, 46 Cal.3d at p. 637.)
C. Aranda/Bruton Challenge
Vanessa contends that Nancy’s testimony that Denetric threatened to kill Mark
violated her rights to be protected from a nontestifying codefendant’s incriminatory
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statements under Aranda, supra, 63 Cal.2d 518 and Bruton, supra, 391 U.S. 123.
Vanessa acknowledges that if a statement is not testimonial, the Sixth Amendment
Confrontation Clause is inapplicable, but argues that Bruton applies, not only to custodial
confessions, but also to inadmissible hearsay statements by nontestifying codefendants
made to family or friends. Vanessa argues that allowing the evidence constituted
Aranda/Bruton error in violation of her Fourteenth Amendment right to due process.
Furthermore, even if there was no federal right violation, the evidence violated state
statutory protections (§ 1098) under Aranda.
Under the Sixth Amendment’s Confrontation Clause, “‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.’” (Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) The
confrontation clause bars admission of “testimonial” hearsay unless the declarant is
unavailable to testify and the defendant had a prior opportunity to cross-examine the
declarant. (Id. at pp. 53-54, 68.) “If the statement is not testimonial, it does not implicate
the confrontation clause, and the issue is simply whether the statement is admissible
under state law as an exception to the hearsay rule.” (People v. Garcia (2008) 168
Cal.App.4th 261, 291.) Although the Crawford court did not define testimonial
statements, it listed as examples among other things, “‘extrajudicial statements . . .
contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions,’ [citation]; [and] ‘statements that were made under
circumstances which would lead an objective witness reasonably to believe that the
12
statement would be available for use at a later trial.’” (Crawford, supra, 541 U.S. at pp.
51-52.)
It is undisputed Denetric was an unavailable witness and his statements to Nancy
during the telephone conversation were not testimonial under Crawford, supra, 541 U.S.
at pages 51-52, 68. Furthermore, the statements did not implicate Vanessa, directly or
indirectly, other than by later providing at trial circumstantial evidence of Vanessa’s
motive to conspire in killing Mark. A nontestifying codefendant’s hearsay statement is
inadmissible only if it is “incriminating on its face”; it is admissible if it becomes
incriminating “only when linked with evidence introduced later at trial . . . .”
(Richardson v. Marsh (1987) 481 U.S. 200, 208.) Therefore the Bruton rule does not
apply here because it is premised on the Confrontation Clause. (People v. Arceo (2011)
195 Cal.App.4th 556, 571.)
Vanessa alternatively argues that, even if Bruton, supra, 391 U.S. 123 is
inapplicable, admission of the evidence violated her due process rights under state law;
specifically, Aranda, supra, 63 Cal.2d 518 and section 1098. Vanessa asserts Nancy’s
testimony regarding Denetric’s threat violated her federal due process rights under the
Fifth Amendment, applicable through the Fourteenth Amendment. Aranda is not based
on the Sixth Amendment because, when Aranda was decided, the Confrontation Clause
had not yet been interpreted to prohibit admission of a nontestifying codefendant's
‘extrajudicial statement. The court in Aranda stated that its holding was “to be regarded,
not as constitutionally compelled, but as judicially declared rules of practice to
implement section 1098.” (Aranda, supra, 63 Cal.2d at p. 530.)
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But if federal constitutional law does not require exclusion of the evidence, the
evidence cannot be excluded under Aranda either: “To the extent that our decision in
People v. Aranda, supra, 63 Cal.2d 518, constitutes a rule governing the admissibility of
evidence, and to the extent this rule of evidence requires the exclusion of relevant
evidence that need not be excluded under federal constitutional law, it was abrogated in
1982 by the ‘truth-in-evidence’ provision of Proposition 8 (Cal. Const., art. I, § 28, subd.
(d)).[] [Citations.]” (People v. Fletcher (1996) 13 Cal.4th 451, 465.)
Proposition 8 provides an exception to exclusion of hearsay evidence under an
existing hearsay statute: “Nothing in this section shall affect any existing statutory rule
of evidence relating to privilege or hearsay . . . .” (Cal. Const., art. I, § 28, subd. (f)(2)).
Section 1098 plainly is not a rule of evidence. (Cal. Const., art. I, § 28, subd. (f)(2).)
Section 1098 is found in the Penal Code, not the Evidence Code. It contains no provision
governing the admission or exclusion of evidence. Because section 1098 is not a rule of
evidence, we conclude the hearsay exception to Proposition 8’s rule of abrogation does
not apply, and Aranda does not require the exclusion of Nancy’s testimony that Denetric
threatened to kill Mark.
Since Denetric’s threat was hearsay – “evidence of a statement that was made
other than by a witness while testifying at the hearing and that is offered to prove the
truth of the matter stated” (Evid. Code, § 1200, subd. (a)), it was inadmissible unless it
fell within a hearsay exception. As discussed below, we conclude the testimony did not
constitute inadmissible hearsay.
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D. State of Mind Hearsay Exception
Vanessa contends Nancy’s testimony that Denetric threatened to kill Mark
constituted inadmissible hearsay and therefore the trial court erred in overruling her
hearsay objection. The People argue the hearsay testimony was admissible under the
state-of-mind hearsay exception. (Evid. Code, § 1250.) We agree.
Evidence Code section 1250, commonly referred to as the state-of-mind hearsay
exception, provides, in relevant part, that, a statement of the declarant’s then existing
state of mind, emotion, or physical sensation (including a statement of intent, plan,
motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the
hearsay rule when offered (1) to prove the declarant’s state of mind, emotion, or physical
sensation at that time or at any other time when it is itself an issue in the action, or (2) to
prove or explain acts or conduct of the declarant. (Evid. Code, § 1250, subd. (a)(1), (2).)
Under the state-of-mind hearsay exception, a statement of one’s state of mind is
one that (1) reflects the declarant’s mental state, and (2) is offered, among other purposes,
to prove the declarant’s conduct, including the declarant’s future conduct in accordance
with his or her expressed intent, unless the statement was made under circumstances
indicating lack of trustworthiness. (Evid. Code, § 1252; People v. Griffin (2004) 33
Cal.4th 536, 578.) The elements essential to admissibility are that the declaration must
tend to prove the declarant’s intention at the time it was made; it must have been made
under circumstances which naturally give verity to the utterance; and it must be relevant
to an issue in the case. (People v. Majors (1998) 18 Cal.4th 385, 404, quoting People v.
Alcalde (1944) 24 Cal.2d 177, 187.)
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Here, Nancy’s hearsay testimony fell within the state-of-mind exception. The
testimony reflected the declarant’s mental state, including Denetric’s intent and motive
for killing Mark. Nancy’s testimony that Denetric threatened to kill Mark and his family,
reflected Denetric’s mental state that he was angry at Mark and intended to kill him if
Mark contacted Vanessa or had anything to do with her, because Vanessa was Denetric’s
girlfriend and was carrying Denetric’s baby. The testimony was relevant to establishing
Denetric’s criminal conduct of killing Mark, which was consistent with his expressed
intent when he told Nancy he would kill Mark if Mark did not leave Vanessa alone.
Denetric’s hearsay statement was also made under circumstances indicating
trustworthiness. Denetric told Nancy his name and claimed Vanessa was his girlfriend.
Nancy testified his tone of voice was serious and she was concerned about his threat but
did not report it to the police out of fear doing so would make matters worse. The
hearsay statement arose under circumstances that supported a finding of trustworthiness.
There was thus no abuse of discretion in the trial court allowing Nancy’s hearsay
testimony regarding Denetric’s threat to kill Mark.
Vanessa argues the state-of-mind exception was inapplicable as to admission of
the hearsay evidence before the jury, because the hearsay did not reflect her then-existing
state of mind and was irrelevant. But under Evidence Code section 1250, the exception
applied if the statement reflected the declarant’s state of mind. Denetric was the
declarant, not Vanessa. Also, as already discussed, Denetric’s threat to kill Mark was
relevant to the charges against Vanessa, because the evidence showed the motive for
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Mark’s murder and Vanessa was charged with aiding and abetting, and conspiring with
Denetric in committing the murder.
IV
CALCRIM NO. 540B
Vanessa and Denetric argue the trial court erred in modifying the felony murder
instruction, CALCRIM No. 540B, by failing to instruct the jury sua sponte on the
requisite element of causation. Denetric argues the court erred in omitting paragraph 4 of
CALCRIM No. 540B instruction, which states that a felony murder conviction requires a
finding that the perpetrator caused the death of another person while committing the
underlying felonies. Vanessa argues the court also erred in omitting paragraph 5 of
CALCRIM No. 540B, which instructs that a felony-murder conviction by a non-killer
requires a finding that there was a logical connection between the cause of death and the
predicate felonies, which is more than just their occurrence at the same time and place
(CALCRIM No. 540B, par. 5).3
3 The paragraphs omitted from the standard CALCRIM No. 540B instruction, state
the following:
“4. While committing [or attempting to commit], __________ the perpetrator caused the death of another person(;/.)

[AND
5. There was a logical connection between the cause of death and the __________
[or attempted __________ ]. The connection between the cause of death
and the __________ [or attempted
__________ ] must involve more than
just their occurrence at the same time and place.]” (CALCRIM No. 540B.)
17
During a discussion of the jury instructions, the trial court announced, without
elaborating, that it would give CALCRIM No. 540B, relating to coparticipants
committing murder. The text of the standard CALCRIM No. 540B instruction directs the
trial court to give element 5 (paragraph 5) “if the court concludes it must instruct on
causal relationship between felony and death; see Bench Notes.” (CALCRIM No. 540B.)
The Bench Notes to CALCRIM No. 540B state in relevant part: “Bracketed
element 5 is based on People v. Cavitt (2004) 33 Cal.4th 187, 193 [Cavitt]. In Cavitt, the
Supreme Court clarified the liability of a nonkiller under the felony-murder rule when a
cofelon commits a killing. The court held that ‘the felony-murder rule requires both a
causal relationship and a temporal relationship between the underlying felony and the act
causing the death. The causal relationship is established by proof of a logical nexus,
beyond mere coincidence of time and place, between the homicidal act and the
underlying felony the nonkiller committed or attempted to commit. The temporal
relationship is established by proof the felony and the homicidal act were part of one
continuous transaction.’ (Ibid. [italics in original].) . . . Give bracketed element 5 if the
evidence raises an issue over the causal connection between the felony and the killing.
In addition, the court may give this bracketed element at its discretion in any case in
which this instruction is given. If the prosecution alleges that the defendant did not
commit the felony but aided and abetted or conspired to commit the felony, the
committee recommends giving bracketed element 5.” (CALCRIM No. 540B; bold
italics added.)
18
Vanessa’s jury instruction challenge is premised on the trial court’s inexplicable
omission of paragraph 5, which requires the jury to find a logical connection between the
cause of death and the underlying felony. The evidence shows that Vanessa did not
commit the underlying felonies of robbery and carjacking, but aided and abetted or
conspired to commit the crimes. Vanessa argues there was evidence raising an issue as to
the causal connection between the predicate felony crimes (robbery and carjacking) and
the killing, since she claimed she did not know Denetric intended to shoot Mark when
defendants carried out the robbery and carjacking.
A. Forfeiture
The People argue Vanessa and Denetric forfeited their jury instruction challenges
because they did not object in the trial court to the trial court omitting paragraphs 4 and 5
from CALCRIM No. 540B. We agree. As stated in the Bench Notes for CALCRIM No.
540B, the majority in Cavitt, supra, 33 Cal.4th at pages 203-204, “concluded that the
court has no sua sponte duty to instruct on the necessary causal connection.” (CALCRIM
No. 540B.) The Cavitt court explained: “We further find that the trial court had no sua
sponte duty to clarify the logical-nexus requirement. The existence of a logical nexus
between the felony and the murder in the felony-murder context, like the relationship
between the robbery and the murder in the context of the felony-murder special
circumstance [citation], is not a separate element of the charged crime but, rather, a
clarification of the scope of an element. [Citation.] ‘[T]he mere act of “clarifying” the
scope of an element of a crime or a special circumstance does not create a new and
19
separate element of that crime or special circumstance.’ [Citation.]” (Cavitt, supra, 33
Cal.4th at pp. 203-204; italics added.)
The Cavitt court therefore concluded: “In sum, there is no sua sponte duty to
clarify the principles of the requisite relationship between the felony and the homicide
without regard to whether the evidence supports such an instruction. [Citation.] [¶]
Because the evidence here did not raise an issue as to the existence of a logical nexus
between the burglary-robbery and the homicide, the trial court had no sua sponte duty to
clarify this requirement. This is not a situation in which Mianta just happened to have
shot and killed her lifelong enemy, . . . Betty, the murder victim, was the intended target
of the burglary-robbery.” (Cavitt, supra, 33 Cal.4th at p. 204.)
Likewise, here, the trial court did not have a sua sponte duty to clarify the felony-
murder causation element by giving paragraphs 4 and 5, since the evidence established
Mark was the intended target of the felonies and homicide, and the crimes occurred
during a single, continuous transaction. By not requesting CALCRIM No. 540B,
paragraphs 4 and 5, Vanessa and Denetric forfeited their objections to the trial court
omitting these paragraphs clarifying causation.
B. Harmless Error
Even assuming the trial court should have included paragraphs 4 and 5, when
giving CALCRIM No. 540B on felony murder, any error was harmless. In the instant
case there was substantial evidence that Mark was the target of the underlying felonies of
robbery and carjacking, and was shot during their commission or attempted commission.
Mark was in his car when Vanessa approached him, and Denetric and Ricardo ran toward
20
the car, shooting at Mark. Evidence of these circumstances supported a finding that the
killing occurred during the commission or attempted commission of the predicate
felonies.
The omission of paragraphs 4 and 5 was also harmless because the trial court
instructed the jury that “It is not required that the person die immediately, as long as the
cause of death and the (felony/felonies) are part of one continuous transaction.”
(CALCRIM No. 540B; italics added.) As applied to the facts in the instant case, this
instruction required the jury to find both a temporal relationship and causal nexus
between the shooting and underlying felonies. The causal nexus and temporal
relationship were inherent in a finding that the shooting and the felonies were part of one
continuous transaction. It was therefore not probable that the jury would have found
there was no causal nexus and temporal relationship, had the trial court included
paragraph 5 of CALCRIM No. 540B, requiring a logical connection between the cause of
death and felonies. As the court noted in Cavitt, “cases that raise a genuine issue as to the
existence of a logical nexus between the felony and the homicide ‘are few indeed.’ It is
difficult to imagine how such an issue could ever arise when the target of the felony was
intentionally murdered by one of the perpetrators of the felony.” (Cavitt, supra, 33
Cal.4th at p. 204, fn. 5.)
On the record, there is little if any evidence that the homicide was completely
unrelated to the robbery-carjacking. (Cavitt, supra, 33 Cal.4th at p. 204.) Therefore,
omission of paragraphs 4 and 5 of CALCRIM No. 540B was harmless error, since it is
not reasonably probable that the outcome would have been more favorable to Vanessa
21
and Denetric had paragraphs 4 and 5 of CALCRIM No. 540B been given. (People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Because there was no prejudicial error, we also reject Vanessa’s ineffective
assistance of counsel challenge. Her attorney’s failure to request an amplifying
instruction on the need for a finding of logical nexus between the felonies and homicide
was not prejudicial error, since it is not reasonably probable that but for her attorney’s
omission, the outcome would have been more favorable to Vanessa. (Strickland v.
Washington (1984) 466 U.S. 668, 687.)
V
CALCRIM No. 521
Vanessa contends the trial court failed to instruct the jury properly on second
degree murder because, when the court gave CALCRIM No. 521 on first degree murder,
the court omitted from the instruction the maxim that “all other murders are of the second
degree.” (CALCRIM No. 721, 2009-2010 version.) This language was included in the
standard 2009-2010 version of CALCRIM No. 521, but was eliminated from the 2011
version of CALCRIM No. 521. (See CALCRIM No. 521 (2009–2010 ed.) p. 271;
CALCRIM No. 521 (2011 ed.) p. 271.)
When CALCRIM No. 521 was revised in 2011, the following language was
added: “[The requirements for second degree murder based on express or implied malice
are explained in CALCRIM No. 520, First or Second Degree Murder With Malice
Aforethought.]” (CALCRIM No. 521 (2011 ed.) p. 271.) The 2011 version of
CALCRIM No. 520, also states that, if there is substantial evidence of first degree
22
murder, the court shall instruct the jury as follows: “If you decide that the defendant
committed murder, you must then decide whether it is murder of the first or second
degree.”
Defendant’s trial took place in 2011. The trial court used the 2011 version of the
CALCRIM jury instructions, Nos. 520 and 521, but did not include language in either
CALCRIM No. 520 or CALCRIM No. 521 that all murders are second degree, unless
found to be first degree.
Vanessa argues that the omitted language left the jury without any guidance on
how to reach a second degree murder conviction. We disagree. The trial court instructed
the jury on the general elements of second degree murder. CALCRIM No. 520, as given
to the jury, stated that to prove defendant is guilty of murder, “the People must prove
that: [¶] 1. The defendant committed an act that caused the death of another person; [¶]
AND [¶] 2. When the defendant acted, he had a state of mind called malice
aforethought.” The instruction also included definitions of express and implied malice.
In addition, CALCRIM No. 521, as read to the jury, stated that “The requirements for
second degree murder based on express or implied malice are explained in CALCRIM
No. 520, First or Second Degree Murder With Malice Aforethought.”
The trial court’s omission of language that all murders are second degree, unless
found to be first degree, does not constitute failure to instruct on an element of second
degree murder. Therefore, because Vanessa failed to object in the trial court to the
omission, or request further clarification or amplification, Vanessa forfeited her objection
in this court. (People v. Lee (2011) 51 Cal.4th 620, 638.) “A trial court has no sua
23
sponte duty to revise or improve upon an accurate statement of law without a request
from counsel [citation], and failure to request clarification of an otherwise correct
instruction forfeits the claim of error for purposes of appeal.” (Ibid.) The trial court
accurately instructed the jury on the elements of second degree murder. Although the
court should have included the language clarifying that murders are second degree, unless
found to be first degree, Vanessa was obliged to request it in the trial court. (Ibid.)4
VI
INSTRUCTION ON LYING IN WAIT
Ricardo and Denetric contend the trial court improperly modified CALCRIM No.
548 by instructing the jury that lying in wait was a separate, independent theory of
murder. The trial court gave the jury the following modified version of CALCRIM No.
548 on murder:
“The defendant has been prosecuted for murder under three theories: (1) malice
aforethought and (2) lying in wait and (3) felony murder.
“Each theory of murder has different requirements and I will instruct you on each.
“You may not find the defendant guilty of murder unless all of you agree that the
People have proved that the defendant committed murder under at least one of these
theories. You do not all need to agree on the same theory.” (Italics show language added
to the standard instruction.)
4 We reject Denetric’s joinder in Vanessa’s objection regarding CALCRIM No. 521
on the same grounds.
24
Ricardo and Denetric argue that the trial court improperly added to CALCRIM
No. 548, lying in wait as a murder theory. They argue this modification permitted the
jury improperly to convict Ricardo and Denetric of murder based on lying in wait,
without finding any intent to kill. Ricardo and Denetric’s defense was that they planned
only to beat up or assault Mark, not to rob, carjack, or kill him. Ricardo acknowledges
on appeal that “the defense at all points conceded that Ricardo lied in wait with the intent
to assault Mr. Enoch.” Ricardo and Denetric argue there was substantial evidence that
Mark’s death was unintentional. Therefore, because the jury was not instructed murder
based on lying in wait required malice aforethought, the improperly modified murder
instruction, CALCRIM No. 548, undercut the presumption of innocence and their
defense, improperly lightened the prosecution’s burden of proof, and violated their right
to effective assistance of counsel by converting defendants’ assault defense into a
concession of guilt.
The trial court was required to give CALCRIM No. 548 on murder, since murder
was charged on theories of malice and felony murder. But even assuming the trial court
improperly modified the instruction by adding lying in wait as a third murder theory, this
modification does not constitute prejudicial error because the instructions as a whole
adequately informed the jury that a murder conviction based on lying in wait required a
finding of malice aforethought.
The trial court instructed the jury according to CALCRIM Nos. 520 and 521, on
murder and first degree murder. CALCRIM No. 520 told the jury, in pertinent part, that
to prove defendant was guilty of murder, “the People must prove that: [¶] 1. The
25
defendant committed an act that caused the death of another person; [¶] AND [¶] 2.
When the defendant acted, he or she had a state of mind called malice aforethought.”
The instruction also included definitions of express and implied malice. CALCRIM No.
521 instructed the jury on first degree murder. The instruction stated that defendants
were prosecuted for first degree under the theories of (1) willful, deliberate, and
premeditated murder, (2) lying-in-wait murder, and (3) felony murder.
Based on these instructions, it is not reasonably probable that the jury would have
construed CALCRIM No. 548 as allowing a finding of murder based on lying in wait, in
the absence of a finding of either express or implied malice aforethought. We do not
believe there is “a reasonable likelihood” the jury understood the instructions as
defendants assert or that the modified instruction undercut the presumption of innocence
and lightened the prosecution’s burden of proof. In making this determination, we have
considered the specific language challenged, the instructions as a whole, and the jury’s
findings. (People v. Cain (1995) 10 Cal.4th 1, 36.)
Furthermore, any error in modifying CALCRIM No. 548 by adding lying in wait
as a murder theory, was harmless under any standard (Chapman v. California (1967) 386
U.S. 18, 24 (Chapman); Watson, supra, 46 Cal.2d at p. 836), because the jury found true
the lying-in-wait special circumstance as to both Ricardo and Denetric. The trial court
instructed the jury that the lying-in-wait special circumstance required a finding of an
intent to kill. (CALCRIM Nos. 703, 728.) The trial court gave CALCRIM No. 728,
which, as read to the jury, stated the following: “The defendant is charged with the
special circumstance of murder committed by means of lying in wait. [¶] To prove this
26
special circumstance is true, the People must prove that: [¶] 1. The defendant
intentionally killed Mark Enoch; and [¶] 2. The defendant committed the murder by
means of lying in wait.” The court further described the requisite elements of lying in
wait and explained that “Lying in wait does not need to continue for any particular period
of time, but its duration must be substantial and must show a state of mind . . . equivalent
to premeditation deliberation. [¶] The defendant acted deliberately if he or she carefully
weighed considerations for and against his choice and, knowing the consequences,
decided to kill. The defendant acted with premeditation if he or she decided to kill before
committing the act that caused death.”
These instructions given to the jury on the lying-in-wait special circumstance
required the jury to find intent to kill. Since the jury found true the lying-in-wait special
circumstance, it is highly probable that the outcome would have been the same and the
jury would have found Ricardo and Denetric guilty of first degree murder by lying in
wait, even if the trial court had not modified CALCRIM No. 548 to include lying in wait
as an independent murder theory.
For these same reasons, we reject Ricardo’s related contention that CALCRIM
No. 548, as modified by the court, violated his Sixth Amendment right to effective
assistance of counsel. Ricardo argues that the instruction undercut his defense by
improperly adding lying in wait as a murder theory. Ricardo conceded in his opening
statement at trial and during closing argument that he was complicit in assaulting Mark
but claimed he acted without any intent to kill him, and therefore was not guilty of
murder. Ricardo argues that, because the trial court unexpectedly modified CALCRIM
27
No. 548 by adding lying in wait as a murder theory, without requiring malice
aforethought, his attorney was unable effectively to present Ricardo’s defense. Ricardo
did not anticipate that conceding to lying in wait and assault would result in a murder
conviction based on lying in wait, without any finding of malice aforethought.
We recognize “[a] criminal defendant is entitled to assistance of counsel at all
critical stages of the proceeding. [Citations.] ‘The right of a criminal defendant to
counsel and to present a defense are among the most sacred and sensitive of our
constitutional rights. [Citations.]’” (People v. Lara (2001) 86 Cal.App.4th 139, 149-
150.) Here, Ricardo is not arguing his attorney’s representation was deficient. Rather, he
is arguing that the trial court deprived him of effective assistance of counsel because the
court gave modified CALCRIM No. 548, which interfered with Ricardo’s attorney’s
assistance in effectively defending Ricardo. Normally, prejudice is presumed when the
state interferes with counsel’s assistance. (Strickland v. Washington, supra, 466 U.S. at
pp. 691-692.)
Even assuming the trial court erred in modifying CALCRIM No. 548 by adding
lying in wait as a murder theory, this did not deprive Ricardo of his Sixth Amendment
right to counsel or to effective representation. Ricardo received effective representation
throughout the trial and the jury instructions, as a whole, adequately instructed the jury
that a murder conviction required a finding of malice aforethought. We cannot say that
CALCRIM No. 548, as modified, deprived Ricardo of his Sixth Amendment right to
effective assistance of counsel.
28
VII
ATTEMPT AND CONSPIRACY INSTRUCTION
Ricardo contends the trial court erred in failing to instruct the jury on attempt and
conspiracy, regarding felony murder. Ricardo argues this violated his right to instruction
on all elements of felony murder and fundamentally undermined his defense that he was
not complicit in the murder, robbery, or carjacking. He only planned to aid an assault on
Mark. Therefore he was not liable for felony murder.
The trial court instructed the jury on first degree felony murder by giving modified
CALCRIM No. 540B. The jury was instructed that it could convict Ricardo of first
degree felony murder upon finding Mark was killed during an attempted robbery or
carjacking. The court further instructed the jury that, in deciding whether Ricardo and
the perpetrator (Denetric) committed or attempted to commit robbery or carjacking, the
jury should refer to the separate instructions given on robbery, carjacking, aiding and
abetting, and conspiracy.
Ricardo argues the trial court committed reversible error by not giving CALCRIM
No. 460 defining an attempt and not properly instructing on conspiracy. Neither party
requested CALCRIM No. 460 and only the People requested CALCRIM No. 416
(uncharged conspiracy). The court gave CALCRIM No. 416, along with CALCRIM No.
417 (liability for coconspirators’ acts) and CALCRIM No. 418 (coconspirator’s
statements). Recognizing in his appellate reply brief that these conspiracy instructions
were given, Ricardo has withdrawn his contention the jury was not properly instructed on
conspiracy.
29
Although, as conceded by the People, the court erred in not giving CALCRIM No.
460, describing the requirements of an attempt. We conclude the error was harmless
beyond a reasonable doubt because it is not reasonably likely the omission could have
affected the jury’s verdict. (People v. Williams (2009) 170 Cal.App.4th 587, 627.)
“[T]he factual question posed by the omitted instruction was necessarily resolved
adversely to the defendant under other, properly given instructions. In such cases the
issue should not be deemed to have been removed from the jury’s consideration since it
has been resolved in another context, . . .” (People v. Sedeno (1974) 10 Cal.3d 703, 721
(Sedeno).)
Here, the jury found Ricardo guilty of first degree murder (§ 187, subd. (a)), guilty
of the firearm personal use enhancement (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)),
guilty of the lying-in-wait special circumstance (§ 190.2, subd. (a)(15)), and not guilty of
the robbery special circumstance. Ricardo’s first degree murder conviction and the jury’s
rejection of the robbery special circumstance demonstrate that the jury did not rely on
felony murder as the basis for Ricardo’s conviction and rejected the theory that he
committed or attempted to commit the underlying predicate offense of robbery.
The instruction on the felony murder special circumstance was similar to the
instruction given on first degree felony murder based on robbery and carjacking, with the
exception the special circumstance instruction contained the additional requirement that
Ricardo was “a major participant” and “acted with reckless indifference to human life.”
There was overwhelming evidence establishing these two additional facts. Ricardo
brandished a semi-automatic gun during the murder, as he and Denetric ran toward
30
Mark’s car, with Denetric firing his revolver at Mark multiple times. There was evidence
Mark’s gun jammed while he attempted to fire at Mark. Under these circumstances,
which reflect that the jury did not rely on the felony murder theory, but rather convicted
Ricardo of first degree murder based on lying in wait, the failure to instruct on the
elements of attempt, as applied to felony murder, was harmless error.
Likewise, omission of instruction on the elements of attempt was not prejudicial to
Denetric, who joins in Ricardo’s contentions on appeal. Unlike as to Ricardo, the jury
trying Denetric, found true the felony murder special circumstance. However, the jury
also found true the lying-in-wait special circumstance and there was overwhelming
evidence that Denetric committed first degree murder by lying in wait. We conclude,
based on the totality of the evidence and instructions given to the jury, that any error in
not instructing on the elements of attempt was harmless error as to both Ricardo and
Denetric.
VIII
MANSLAUGHTER INSTRUCTION
Ricardo contends the trial court erred in failing to instruct on manslaughter as a
lesser included offense to murder under the natural and probable consequence doctrine.
He argues the court was required to give the instruction because there was ample
evidence from which the jury could have found Ricardo had agreed to aid only the
predicate offense of assault.
In a criminal trial, “‘the trial court must instruct on the general principles of law
relevant to the issues raised by the evidence. [Citations.]’ . . . That obligation has been
31
held to include giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present [citation],
but not when there is no evidence that the offense was less than that charged.
[Citations.]” (Sedeno, supra, 10 Cal.3d at pp. 715-716, overruled on other points in
People v. Breverman (1998) 19 Cal.4th 142, 163, fn. 10 & People v. Flannel (1979) 25
Cal.3d 668, 684-685, fn. 12.) The duty to instruct as to lesser included offenses exists
only when there is substantial evidence to support the instruction on the lesser offense.
(People v. Cole (2004) 33 Cal.4th 1158, 1215.) Substantial evidence in this context is not
any evidence, no matter how weak, but rather evidence from which a jury composed of
reasonable persons could conclude that the lesser offense, but not the greater, was
committed. (People v. Cruz (2008) 44 Cal.4th 636, 664.)
Here, Ricardo argues the trial court should have instructed the jury that, if he
initially contemplated only assaulting Mark, the jury could decide whether any lesser
included offense to murder, such as manslaughter, was reasonably foreseeable. Ricardo
argues there was substantial evidence establishing manslaughter as a lesser included
offense of murder, since the evidence only showed that he intended to beat up Mark and
did not intend to kill him. Therefore there was sufficient evidence to support a
manslaughter as a natural and probable consequence to assault, and the trial court should
have instructed the jury accordingly.
We conclude the trial court did not commit reversible error by not sua sponte
instructing the jury on manslaughter as a lesser included offense to murder under the
natural and probable consequence doctrine. The instructions as a whole were sufficient.
32
The court instructed the jury on (1) the general principles of aiding and abetting
(CALCRIM No. 400), (2) aiding and abetting an intended crime (CALCRIM No. 401),
(3) voluntary manslaughter as a lesser offense of murder (modified CALCRIM No. 570),
and (4) lesser offenses, generally (CALCRIM No. 3517).
Modified CALCRIM No. 570, as read to the jury, stated: “An unintentional
killing, without malice, committed during the commission of an inherently dangerous
felony, such as shooting into an occupied motor vehicle, 246 PC, is at least a voluntary
manslaughter. [¶] If you find that the defendant did not harbor implied malice at the
time of the killing because he or she did not subjectively appreciate that the conduct
endangered the victim’s life, the crime committed is voluntary manslaughter.”
CALCRIM No. 3517, as read to the jury, stated in relevant part: “There is a lesser
offense under Count 1. The lesser is voluntary manslaughter. If you find the defendant
guilty of the lesser, it may change which special allegations you need to consider. As you
consider Count 1 and the lesser, you may consider them in any order you wish.
However, before the Court can accept a verdict of guilty on the lesser crime, the jury
must have found the defendant not guilty of the greater crime.”
Under the facts in the instant case, the trial court adequately instructed the jury on
voluntary manslaughter as a lesser offense to murder. There was no sua sponte duty to
instruct on assault because it was not relied on by the prosecution as a potential target
offense. (People v. Prettyman (1996) 14 Cal.4th 248, 268-269.) With regard to
instruction on involuntary manslaughter as a lesser offense to murder, there was not
substantial evidence of involuntary manslaughter, since the evidence established that
33
Denetric and Ricardo both intentionally fired their guns at Mark’s car. Denetric, who
succeeded in fatally shooting Mark, fired multiple times at Mark, after hiding behind a
wall and ambushing him.
In addition, any instructional error in omitting instruction on the lesser included
offense of manslaughter was harmless error under any standard. (Chapman, supra, 386
U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.) The trial court instructed the jury on
voluntary manslaughter as a lesser offense, and jury rejected the theory, finding that
Ricardo was guilty of first degree murder, with a special circumstance finding of murder
by lying in wait.
IX
SHACKLES
Ricardo contends the trial court violated his state and federal constitutional rights
to counsel and due process by restraining him with shackles during trial, without any
showing of manifest need or consideration of less restrictive alternatives. To the extent
Denetric joins in this contention, he forfeited the issue by not objecting in the trial court
to being shackled. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.)
A. Background Facts
During in limine proceedings, the trial court raised the issue of courtroom security
and asked counsel whether defendants should wear chains, cuffs or leg braces, and
whether a deputy should stand next to them. The court noted that it was required to make
particularized findings if such security measures were taken. The prosecutor said that
there was a risk to the jury if defendants, who were charged with murder, were not
34
accompanied by a deputy. Nevertheless, the prosecutor further stated: “I can’t make any
particularized claims that these defendants are dangerous. I don’t believe that they’ve
been violent in the jail. So my guess is that they will follow the Court’s orders and not be
violent if they choose to testify. [¶] So my position, I guess, is that if the Court feels
comfortable with them testifying up there with no one next to them, I don’t have a
problem with it.” The prosecutor added: “I think [defendants] could be a risk to jurors if
the defendants decided at that moment to act out, and that’s my concern.”
Ricardo’s attorney objected to imposing security measures because they were
highly prejudicial and would convey to the jury that he was a dangerous person.
Ricardo’s attorney stated that such measures were inappropriate since Ricardo did not
have any history of violence in jail and had been cooperative during the entire time he
was incarcerated (four years).
The trial court noted that the courtroom setup warranted additional security
because the bench, jury box, witness stand, court reporter, and the door leading to a
secure hallway, where judges and staff had their offices and chambers, were all within
close proximity of where defendants were located. The court added that the case was a
serious case, in which the potential penalty was life without the possibility of parole.
Since the court had not yet heard from the jail authorities regarding defendants’ behavior
in jail, the court tentatively ordered a deputy to stand by the door to the secure hallway.
The court also required a deputy to stand by defendants if they testified. The court
tentatively ordered that defendants wear leg braces, which were not visible.
35
After taking a recess and receiving information from the jail regarding defendants,
a deputy reported that Vanessa had been in a fight in jail, in 2008, and had some mental
health issues; razors were found in Denetric’s Bible in his jail cell; and pruno5 was found
in Denetric and Ricardo’s cells. In addition, Denetric had mental health issues and had
attempted suicide. Ricardo also had a couple of insignificant jail violations. Based on
this information, and since defendants were charged with the very serious crime of
murder, the trial court ordered that defendants were to wear concealed leg braces, which
prevented defendants from walking quickly.
B. Applicable Law
“Due process prohibits shackling noticeable by a jury unless, in the sound exercise
of the trial court’s discretion, case-specific concerns like ‘special security needs or escape
risks’ pose a threat to an essential state interest so as to show ‘adequate justification’ for
the shackling. [Citations.] If the requisite showing is not in the record, a trial court
ordering such shackling commits an abuse of discretion, a ‘defendant need not
demonstrate actual prejudice to make out a due process violation,’ and the error is
reversible unless the prosecution proves beyond a reasonable doubt that the error did not
contribute to the verdict. [Citations.]” (People v. Soukomlane (2008) 162 Cal.App.4th
214, 229 (Soukomlane), quoting Deck v. Missouri (2005) 544 U.S. 622, 633, 635.)
Similarly, California law provides that “‘a defendant cannot be subjected to
physical restraints of any kind in the courtroom while in the jury’s presence, unless there
5 Pruno is prison alcohol surreptitiously made from prison food.
36
is a showing of a manifest need for such restraints.’ [Citation.] Second, ‘in any case
where physical restraints are used those restraints should be as unobtrusive as possible,
although as effective as necessary under the circumstances,’ and a trial court should
exercise discretion to use less drastic and less noticeable restraints when ‘safe to do so.’
[Citation.]” (Soukomlane, supra, 162 Cal.App.4th at pp. 229-230, citing People v. Duran
(1976) 16 Cal.3d 282, 290-291.)
“‘Manifest need’ arises only upon a showing of unruliness, an announced intention
to escape, or ‘[e]vidence of any nonconforming conduct or planned nonconforming
conduct which disrupts or would disrupt the judicial process if unrestrained . . . .’
[Citation.] Moreover, ‘[t]he showing of nonconforming behavior . . . must appear as a
matter of record . . . . The imposition of physical restraints in the absence of a record
showing of violence or a threat of violence or other nonconforming conduct will be
deemed to constitute an abuse of discretion.’ [Citation.]” (People v. Cox (1991) 53
Cal.3d 618, 651 (Cox).) We review a trial court’s decision to shackle a defendant for
abuse of discretion. However, that discretion is “relatively narrow.” (Ibid.)
C. Analysis
Here, the court considered and stated on the record its basis for finding a manifest
need for security restraints. The only basis for using security restraints on Ricardo was
that pruno was found in his cell and he had a couple insignificant jail violations. He did
not have any history of violence and throughout four years of court proceedings, he had
been cooperative and had not acted out. As Ricardo points out, there was no evidence
that he was likely to be unruly, to try to escape, or to engage in disruptive nonconforming
37
conduct. The leg restraints as to Ricardo were thus inappropriate and an abuse of
discretion, since the requisite showing of an “adequate justification” or a “manifest need”
was absent. (Soukomlane, supra, 162 Cal.App.4th at p. 230.)
The trial court ordered defendants shackled based in part on the fact defendants
were charged with murder, a serious and violent felony. (See §§ 667.5, subd. (c)(8),
1192.7, subd. (c)(8).) But even a defendant accused of a capital crime, however, cannot
be shackled for that reason alone. (People v. Hawkins (1995) 10 Cal.4th 920, 944;
People v. Seaton (2001) 26 Cal.4th 598, 652.) The trial court also found a manifest need
for shackles based on the layout of the courtroom. However, this also does not constitute
a valid basis for ordering shackles. (Seaton, at p. 652.)
Nevertheless, error in ordering Ricardo to wear shackles during trial was harmless.
“[W]e have consistently held that courtroom shackling, even if error, was harmless if
there is no evidence that the jury saw the restraints, or that the shackles impaired or
prejudiced the defendant’s right to testify or participate in his defense.” (People v.
Anderson (2001) 25 Cal.4th 543, 596 [error clearly harmless because defendant did not
testify, no indication on the record that he would have but for his restraint, and no
evidence jurors were aware of the restraint; see also People v. Wallace (2008) 44 Cal.4th
1032, 1051; Cox, supra, 53 Cal.3d at p. 652; People v. Jackson (1993) 14 Cal.App.4th
1818, 1828 [Fourth Dist., Div. Two].) Assuming an abuse of discretion, a defendant can
suffer no possible prejudice where there is no indication on the record that the jurors
knew he was restrained, that he suffered any deleterious effects from the restraint, or that
the restraint influenced his decision to testify. (Wallace, at p. 1051.)
38
Here, the record reflects that the court ordered the restraints concealed and there is
no evidence that they were observed by the jurors, that Ricardo suffered any deleterious
effect from the restraint, or that the restraint influenced his decision to testify. Ricardo
was shackled using a concealed leg brace worn underneath his pant leg. Therefore
shackling Ricardo during his trial was not prejudicial error.
X
FLIGHT INSTRUCTION
Ricardo argues the jury instruction on flight violated due process because it was
one-sided. Evidence was presented at trial that immediately after the shooting,
defendants traveled to Buena Park and spent the night at a motel. Based on this evidence,
the trial court gave CALCRIM No. 372 on flight. The instruction told the jury it could
rely on evidence of flight to convict Ricardo but there was no instruction that the jury
could also rely on evidence of an absence of flight to acquit him. Defendants did not
object to the instruction or request any modification or change.
Ricardo argues the flight instruction was one-sided because there was also
evidence of an absence of flight by Ricardo. Unlike Vanessa and Denetric, Ricardo was
not arrested right after the shooting. He was arrested over a month later. Rather than
fleeing after Vanessa and Denetric were arrested, Ricardo continued his normal way of
life and was ultimately arrested while visiting someone in county jail. Ricardo contends
the flight instruction was not balanced because it did not tell the jury that, if the jury
found he did not flee, the jury could consider such evidence as showing he was not guilty.
The instruction singled out a certain type of evidence (fleeing) and told the jury it could
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rely on it to convict, without also telling the jury it could acquit based on the absence of
this same type of evidence.
There was no error in not instructing sua sponte on the absence of evidence of
flight. Our high court in People v. Staten (2000) 24 Cal.4th 434, 459 rejected this
argument, holding that there is no reciprocal duty to instruct on the absence of flight,
even on request. The Staten court explained that in People v. Green (1980) 27 Cal.3d 1,
39 and 40 (Green), the California Supreme Court “held that refusal of an instruction on
absence of flight was proper and was not unfair in light of Penal Code section 1127c. We
observed that such an instruction would invite speculation; there are plausible reasons
why a guilty person might refrain from flight. [Citation.] Our conclusion therein also
forecloses any federal or state constitutional challenge based on due process.” (Staten, at
p. 459; see also People v. Williams (1997) 55 Cal.App.4th 648, 652 (Williams).)
Section 1127c explains that: “In any criminal trial or proceeding where evidence
of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the
jury substantially as follows: [¶] The flight of a person immediately after the
commission of a crime, or after he is accused of a crime that has been committed, is not
sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may
consider in deciding his guilt or innocence. The weight to which such circumstance is
entitled is a matter for the jury to determine. [¶] No further instruction on the subject of
flight need be given.” (Italics added.) There is no similar statutory requirement that the
court must instruct the jury on the absence of flight.
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In Green, supra, 27 Cal.3d 1, the court noted that evidence of the absence of flight
has been held to be inadmissible under Evidence Code section 352 as so ambiguous and
laden with conflicting interpretations that its probative value on the issue of innocence is
slight. (Id. at p. 39.) The Green court concluded that, even though there was evidence
presented to show the absence of flight, the court was not required to instruct on the
absence of flight because the instruction would have injected a new issue into the jury’s
deliberations and invited speculation. (Ibid., fn. omitted.) “[T]he inference of
consciousness of guilt from flight is one of the simplest, most compelling and universal
in human experience. [Citation.] The absence of flight, on the other hand, is far less
relevant, more inherently ambiguous and ‘often feigned and artificial.’ [Citation.]”
(Williams, supra, 55 Cal.App.4th at p. 652.)
As concluded in Williams, supra, 55 Cal.App.4th at page 653, due process does
not require instruction on evidence of absence of flight because “there is no fundamental
unfairness in not requiring an instruction on the absence of flight. . . . Since flight and the
absence of flight are not on similar logical or legal footings, the due process notions of
fairness and parity . . . are inapplicable.” Here, we likewise conclude there was no due
process requirement that the court instruct the jury on the absence of flight.
XI
DANGEROUS FELONY INSTRUCTION
Ricardo contends the trial court erred in instructing the jury it could convict
Ricardo of first degree murder if the jury found the murder was committed in the course
of a dangerous felony. Ricardo argues that this instruction created an unconstitutional
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presumption of guilt, lightened the prosecution’s burden of proof beyond a reasonable
doubt, and violated his Sixth Amendment right to counsel by instructing the jury that it
could convict him merely upon finding he committed a dangerous felony.
The prosecution argued three theories of first degree murder: (1) premeditated
murder, (2) lying-in-wait murder, and (3) felony murder. Ricardo asserts that the trial
court erroneously instructed the jury that defendant “had been prosecuted for first degree
murder under three theories: (1) the murder was willful, deliberate, and premeditated, (2)
the murder was committed by lying in wait, and (3) the murder was committed during the
commission of a dangerous felony.” Ricardo argues that there is no legally recognized
“dangerous felony” theory of first degree murder.
Ricardo further argues that the instructional error was prejudicial beyond a
reasonable doubt under Chapman, supra, 386 U.S. at page 24, because the verdict form
for first degree murder does not reveal whether the jury found Ricardo guilty based on a
predicate felony that could support a proper felony-murder conviction, such as robbery or
carjacking. Ricardo notes that the jury rejected the robbery special circumstance
allegation and argues that there was no evidence of intent to kill. There was only
evidence Ricardo planned to beat up Mark. Therefore the jury could not have found
premeditated murder or felony murder, and the instruction permitted the jury improperly
to find Ricardo guilty of first degree murder based on a lower standard of proof; that of
finding him guilty merely based on finding he aided and abetted commission of a
“dangerous felony,” such as a section 246 violation.
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Ricardo argues that, because the dangerous felony theory is not a proper first
degree murder theory, including it in CALCRIM No. 521 as one of three theories
constituting first degree murder, impermissibly lightened the People’s burden of proving
first degree murder beyond a reasonable doubt, undercut the presumption of innocence,
and triggered per se reversal. We reject this contention because the instructions as a
whole adequately instructed the jury on the elements and theories required for a first
degree murder. Even assuming CALCRIM No. 521 should have specified that the
predicate “dangerous felony” offenses for felony murder were limited to robbery and
carjacking, the other instructions defining first degree murder and felony murder made it
clear that first degree murder was limited to (1) premeditated murder, (2) lying-in-wait
murder, and (3) felony murder, in which the predicate offenses were limited to robbery
and carjacking.
We also conclude that any error in including in CALCRIM No. 521 the theory of
committing a dangerous felony, was harmless error beyond a reasonable doubt under
Chapman, supra, 386 U.S. at page 24. The alleged instructional error simply “did not
contribute to the verdict obtained.” (Ibid.) In addition to giving CALCRIM No. 521, the
trial court gave CALCRIM No. 540B, defining the elements of first degree murder;
CALCRIM No. 541B, defining the elements of second degree murder; modified
CALCRIM No. 548, identifying the three applicable first degree murder theories; and
modified CALCRIM No. 570, regarding voluntary manslaughter based on a section 246
violation. It is not reasonably likely the jury would have construed these instructions,
when considered as a whole, as allowing the jury to find Ricardo guilty of first degree
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murder based on a finding he aided and abetted in shooting at an occupied vehicle, in
violation of section 246. The jury instructions stated that a section 246 violation, for
shooting at an occupied car, was only a predicate crime for voluntary manslaughter and
second degree felony murder. It is not reasonably likely the jury would have construed
the language in CALCRIM No. 521, referring to murder committed during a dangerous
felony, as allowing the jury also to convict Ricardo of first degree murder based on a
section 246 violation.
In addition, if there was any ambiguity in the instructions in this regard, the
prosecutor clarified during closing argument that, in order to find Ricardo guilty of first
degree murder, the jury must find that the killing was committed during a robbery or
carjacking. Finally, use of the language, “dangerous felony” in CALCRIM No. 521 was
harmless, since the jury found true the special circumstance allegation of lying in wait.
This reflects that the jury would have found Ricardo guilty of first degree murder based
on the theory of lying in wait, even if CALCRIM No. 521 had not included the language,
“dangerous felony.”
To the extent Denetric joins in Ricardo’s challenge to CALCRIM No. 521, we
reject his objection for the same reasons discussed above. Furthermore, as to Denetric,
the jury found true the additional special circumstance of robbery, which reflects that the
jury found Denetric guilty of first degree murder based on both lying in wait and felony
murder.
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XII
LYING-IN-WAIT SPECIAL CRICUMSTANCE
Ricardo contends the trial court committed prejudicial error when it erroneously
modified CALCRIM No. 703 on special circumstances to refer to both felony-murder
and lying-in-wait special circumstances. Normally, the standard CALCRIM No. 703
instruction only refers to the felony-murder special circumstance. This is because the
instruction allows the jury to find true the felony-murder special circumstance if the
defendant acted either with intent to kill or with reckless indifference to human life.
Finding true the lying-in-wait special circumstance requires intent to kill. A finding of
reckless indifference to human life is not sufficient. Ricardo argues that CALCRIM No.
703, as modified, allows the jury to find true the lying-in-wait special circumstance
without a finding of intent to kill.
We conclude modified CALCRIM No. 703 does not constitute prejudicial error
because it is not reasonably likely the instructions as a whole would mislead the jury in
construing CALCRIM No. 703 as allowing the jury to find true the special circumstance
of lying in wait in the absence of intent to kill. This is because when the trial court read
to the jury CALCRIM No. 703, the court began by stating the title of CALCRIM No.
703, as follows: “SPECIAL CIRCUMSTANCES: INTENT REQUIREMENT FOR
ACCOMPLICE FELONY MURDER,” indicating the instruction was limited solely to
special circumstance of felony murder.
Ricardo argues that use of the words, “special circumstances,” in the plural, in
CALCRIM No. 703, likely mislead the jury into construing CALCRIM No. 703 as
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applying to both the felony-murder and lying-in-wait special circumstances, whereas the
instruction should only apply to the felony murder special circumstance. We do not find
this argument persuasive since the title of the instruction clearly states that the instruction
applied only to accomplice felony murder.
CALCRIM No. 705 further explained that, “In order to prove the special
circumstances, the People must prove not only that the defendant did the acts charged,
but also that he or she acted with a particular intent or mental state. The instruction for
each special circumstance explains the intent or mental state required.” CALCRIM No.
703 explained the intent required for the felony-murder special circumstance. CALCRIM
No. 728, entitled, “SPECIAL CIRCUMSTANCES: LYING IN WAIT,” stated the intent
or mental state required for the lying-in-wait special circumstance. CALCRIM No. 728
stated in relevant part: “The defendant is charged with the special circumstance of
murder committed by means of lying in wait. [¶] To prove that this special circumstance
is true, the People must prove that: [¶] 1. The defendant intentionally killed Mark
Enoch; and [¶] 2. The defendant committed the murder by means of lying in wait.” This
instruction clearly states that in order to find true the lying-in-wait special circumstance,
the jury was required to find intent to kill.
The prosecutor’s closing argument further clarified that the lying-in-wait special
circumstance required a finding that Ricardo had an intent to kill Mark. The prosecutor
stated with regard to the lying-in-wait special circumstance, “He had to have intended to
kill Mark Enoch for this to apply. [¶] . . . [¶] Under the special circumstance, now the
law adds in an intent to kill. So you’re going to have to make those determinations if at
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the moment in time that Ricardo Lagunas is hiding behind that wall, has he decided to
kill. When he rushes out with the loaded gun and pulls the trigger at Mark Enoch, has he
decided to kill at that moment.”
Taking into consideration the instructions as a whole, as well as the prosecutor’s
closing argument, it is not reasonably likely the jury would have construed CALCRIM
No. 703 as allowing the jury to find true the lying-in-wait special circumstance without a
finding of intent to kill.
XIII
DISPOSITION
The judgments against Vanessa Lagunas, Ricardo Lagunas, and Denetric Adams
are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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