People v. Arciga CA2/4 ( 2016 )

Filed 2/25/16 P. v. Arciga CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B258201
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA114995)
v.
HECTOR AGUILAR ARCIGA et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los Angeles County,
John A. Torribio, Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for
Defendant and Appellant Hector Aguilar Arciga.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant
and Appellant Pedro Huerta Zuniga.
Waldemar D. Halka, under appointment by the Court of Appeal, for
Defendant and Appellant Francisco Argenis Parra.
Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle
and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellants Hector Aguilar Arciga, Pedro Huerta Zuniga and Francisco
Argenis Parra appeal from judgments and sentences following their convictions for
the murder of Carlos Zarate, the attempted murder of Manuel Rojas, and the
robbery and burglary of Zarate, Rojas, Jesus Vasquez, and Martha Gutierrez. They
contend the trial court erred in not excluding certain out-of-court statements,
giving incomplete and/or erroneous jury instructions, and imposing unauthorized
sentences. Finding no reversible error, we affirm.
PROCEDURAL HISTORY
Appellants were charged in an amended information with the murder of
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Zarate (Pen. Code, §187, subd. (a); count 1), the attempted murder of Rojas
(§§ 664/187, subd. (a); count 2), assault with a deadly weapon of Rojas (§ 245,
subd. (b); count 3), home invasion robbery of Zarate, Rojas, Gutierrez, and
Vasquez (§ 211; counts 6-9), and first degree burglary (§ 459; count 10). Arciga
and Zuniga were also charged with possession of a firearm by a felon (§ 12021,
subd. (a)(1); counts 4 and 5). As to count 1 (murder of Zarate), it was alleged that
the murder was committed in the commission of a robbery and a burglary (§ 190.2,
subd. (a)(17)).
With respect to Parra, it was alleged that: as to counts 1, 3, and 10, he
personally used a firearm in the commission of a felony (§ 12022.53, subds. (a) &
(b)); and as to counts 2, 6, 7, 8, and 9, he personally and intentionally discharged a
firearm which caused great bodily injury and death to Zarate (§ 12022.53,
subds. (b), (c), & (d)).
With respect to Zuniga, it was alleged that: as to counts 2, 3, and 5 to 10, he
personally used a firearm in the commission of a felony (§ 12022.53, subds. (a) &
1
All further statutory citations are to the Penal Code, unless otherwise stated.
2
(b)); and as to counts 1, 6, 7, 8, and 9, he personally and intentionally discharged a
firearm which caused great bodily injury and death to Zarate (§ 12022.53, subds.
(b), (c), & (d)). It was further alleged that Zuniga had suffered three prior prison
terms.
With respect to Arciga, it was alleged that: as to counts 2 to 10, he
personally used a firearm in the commission of a felony (§ 12022.53, subds. (a) &
(b)); and as to counts 1, 6, 7, 8, and 9, he personally and intentionally discharged a
firearm which caused great bodily injury and death to Zarate (§ 12022.53,
subds. (b), (c), & (d)). It was further alleged that Arciga had suffered a prior
prison term (§ 667.5, subd. (b)).
A jury was empanelled for Parra and Zuniga, and a separate jury empanelled
for Arciga. Parra was found guilty as charged on all counts. The jury found the
murder (count 1) to be in the first degree, and found true both special
circumstances allegations, viz., that the murder was committed in the commission
of a burglary and a robbery. It also found true the personal firearm use allegations.
Similarly, Zuniga was found guilty as charged on all counts. The jury also
found the murder to be in the first degree, and found true both special
circumstances allegations and all personal firearm use allegations. In a bifurcated
proceeding, the trial court found true the three prior prison term allegations.
Arciga was found guilty as charged on counts 1, 4, 6, 7, 8, 9, and 10. He
was acquitted of the charges in count 2 (attempted murder of Rojas) and count 3
(assault on Rojas). The jury found the murder to be in the first degree and both
special circumstances to be true. It found true the allegations of personal and
intentional discharge of a firearm as to counts 1, 6, 7, 8, and 9, and the personal
firearm use allegation as to count 10. In a bifurcated proceeding, the trial court
found true the prior prison term allegation.
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As reflected in the abstracts of judgment, the trial court sentenced Parra to
life imprisonment without the possibility of parole, plus 40 years; Zuniga to life
imprisonment without the possibility of parole, plus 40 years, 8 months; and
Arciga to life imprisonment without the possibility of parole, plus 40 years, four
months.
Appellants filed timely notices of appeal.
FACTUAL BACKGROUND
A. The Prosecution Case.
According to the prosecution, appellants had a scheme to rob drug dealers.
After gaining a drug dealer’s trust by making an initial small purchase, they would
set up a larger drug purchase. During this second encounter, they would rob the
drug dealer of money and drugs. In the instant case, appellants killed Carlos
Zarate and injured Manuel Rojas during the second drug purchase.
1. The Victims’ Testimony.
Vasquez testified he was a close friend of Zarate’s. About a week and a half
before Zarate’s murder, Vasquez was present when Zarate sold 20 pounds of
marijuana to Parra and Zuniga. On April 22, 2009, Vasquez, Gutierrez (his
mother-in-law), Zarate, and Rojas went to an apartment in Bellflower to sell 140
pounds of marijuana to Parra and Zuniga. They brought 60 pounds of the drug
with them, and planned to deliver the remainder after receiving the money. Parra
was waiting outside the apartment; Zuniga and Arciga were waiting inside. The
parties exchanged drugs and money. Arciga checked the product, while Gutierrez
started counting the money. She asked Vasquez to assist her. As Vasquez was
walking toward Gutierrez, he glimpsed Zuniga pulling a handgun from his waist.
He heard several gunshots and saw Zarate staggering. Vasquez also saw Arciga
shooting at Zarate while walking toward him. After Zarate had fallen to the
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ground, Arciga fired five more shots at him. Zuniga then snatched the money from
Gutierrez. At around the same time, Vasquez heard Rojas screaming. After
another gunshot, Vasquez observed Rojas on the floor. Parra took the bag
containing the marijuana and handed it to Zuniga. Zuniga then dragged the bag to
the exit. Vasquez did not see Arciga, but presumed that he had already left the
apartment. Parra, who was armed with a semi-automatic, pointed the gun at
Vasquez, and asked Vasquez if he had a gun. Vasquez told him, “No,” and lifted
his shirt to show he was not armed. Gutierrez also interposed herself between
Parra and Vasquez. As Parra turned to leave, he struck Rojas, who was still on the
ground, on the top of the head with his gun. After Parra left, Vasquez ran toward
Zarate’s body and started screaming to wake him up. He noticed a .45-caliber
handgun on top of the body. Vasquez recognized that the gun belonged to him,
and took it. He subsequently disposed of the gun. Vasquez, Gutierrez, and Rojas
then left the apartment. Vasquez did not call 911 after the shooting or contact the
police. Rather, the police contacted him later.
Rojas’s and Gutierrez’s trial testimony was substantially similar to
Vasquez’s testimony. Rojas testified that he realized it was a setup when Gutierrez
was counting the stacks of money, and there were large bills on top of the stacks
and $1 bills underneath. At almost the same instant, Rojas heard someone say,
“This is a stick up.” He saw Zarate reach for his gun, but Zarate did not have
enough time to pull it out before he was shot. After Zarate fell to the ground,
Gutierrez yelled out, “Oh, my God. Run. Run.” Rojas panicked and ran toward
the front door. Arciga then shot him in the left buttocks area, and Rojas fell to the
ground. He closed his eyes and pretended to be dead. He heard people walking
out and dragging the bag of drugs with them. As the last person left, he pistol-
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whipped Rojas. From their positions in the apartment, Rojas deduced that it was
Parra who had pistol-whipped him.
After the men left, Gutierrez had someone drive Rojas to a nearby hospital,
where he had surgery to repair a shattered left femur bone. Police officers
interviewed Rojas at the hospital; he told them he had been shot in a driveby
shooting by unknown assailants. However, Rojas, who was working as an
informant for the Drug Enforcement Administration (DEA), called his handler that
day and informed the DEA agent about what had happened. A few days later, Los
Angeles Sheriff’s Department deputy sheriff and homicide detective Steven Blagg,
after being informed that Rojas had pertinent information about the shooting, met
with Rojas. Rojas described the actual events to the detective.
Gutierrez testified that when the shooting started, she covered her face.
Later, she saw Zuniga pointing a gun at Vasquez. She went over and pushed the
gun away from Vasquez’s face. Gutierrez did not know that Zarate had died until
she was informed a few days later. She did not go to the police. Instead, the police
contacted her.
2. Statements Made to Eusebio Alvarez.
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Over appellants’ objections under Aranda-Bruton, Eusebio Alvarez, a friend
of Arciga’s, testified about certain statements Arciga and Zuniga had made to him
after the shooting. Previously, Arciga had told Alvarez that Arciga and Parra’s
father were involved in “dope rips” -- robbing drug dealers. On April 22, 2009,
Arciga called Alvarez, saying, “I got some weed right now, but you got to let me
know if you want it because something went wrong right now. It’s hot. I just shot
somebody.” Later that day, Arciga came to Alvarez’s house with some marijuana.
2
People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391
U.S. 123 (Bruton).
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Arciga asked Alvarez if Alvarez could “get rid of [the drugs] quick or something
because it was real hot.” Arciga said he had been involved in a shoot-out: he had
shot a man and after the man fell down, he had walked up and shot him several
times. Arciga said Zuniga and Parra were present.
Alvarez testified he did not sell any of the marijuana for Arciga. However,
for $100, he helped Arciga dispose of a nine-millimeter handgun Arciga said he
had used to kill the man.
A few days later, Zuniga contacted Alvarez, saying he had some crystal
methamphetamine he wanted Alvarez to sell. Zuniga admitted there had been a
shoot-out, but said Arciga had lied about shooting the victim. He bragged,
“[Arciga] is talking all this bullshit. I was the one that did it. I’m the one that shot
the guy.”
3. Other Trial Testimony.
Maria Eduvina Arteaga de Ayala testified that she lived at the apartment
where the shooting occurred. About a week before the shooting, Arciga and
“Miguel” asked about using her apartment to host two people visiting from
Mexico. Arciga also asked her if she wanted to work with them as a driver. He
showed her a box of cash and a handgun. On April 22, 2009, Miguel called her
and stated they wanted her apartment “empty.” Ayala left the apartment, leaving
the door unlocked. As she was driving away from her apartment that morning, she
observed Arciga driving in the opposite direction. Later that day, the manager of
the apartment complex called Ayala, and told her there was a dead man in her
apartment. When Ayala was later interviewed by Detective Blagg, she initially
lied before telling him the truth. Ayala testified she did not want to work with
Arciga, and she never gave anyone permission to use her apartment to engage in
drug deals or to rob drug dealers.
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On November 10, 2009, Parra was stopped for speeding. He was arrested
for driving without a license and the vehicle was impounded. During the inventory
search of the vehicle, two handguns were recovered from the trunk, including a
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nine-millimeter Sig Sauer. After waiving his Miranda rights, Parra told Los
Angeles Police Officer Arturo Koenig that he was going to meet and rob a drug
dealer of 200 pounds of marijuana. He admitted being involved in a prior robbery
of a drug dealer, at “32nd and Central” in Los Angeles.
4. Forensic Evidence.
Steven Scholtz, a coroner, testified that he performed an autopsy on Zarate’s
body. Zarate had suffered nine gunshot wounds, including three that Scholtz
opined were fatal.
Phil Teramoto, a criminalist, testified about firearm-related evidence
recovered at the crime scene. From various tests, Teramoto concluded that three
firearms were used during the shoot-out: (1) a .45-caliber handgun that fired a
single shot, (2) a nine-millimeter handgun that fired eight shots, and (3) a nine-
millimeter Sig Sauer -- the handgun recovered from Parra’s vehicle -- that fired
one shot. A bullet recovered from Rojas’s body was matched to bullets fired from
the Sig Sauer handgun, and two bullets recovered from Zarate’s body were
matched with the bullets fired from the other nine-millimeter handgun. Teramoto
also testified that the shot fired from the .45-caliber handgun had a northern
trajectory and hit an exercise machine at 16.5 inches above the ground.
Los Angeles County Sheriff Deputy Mario Cortez, a latent print examiner,
testified that he matched latent prints developed from evidence found at the crime
scene with fingerprint exemplars from Parra and Zuniga. Luis Olmos, a
criminalist, testified that analysis of DNA found on certain items at the crime scene
3
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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indicated that multiple persons handled the items. Based on their respective DNA
profiles, Arciga and Zuniga were possible contributors to the DNA mixture found
on some of the items.
5. Evidence Presented Only to Arciga’s Jury.
On March 31, 2010, Detective Blagg and two fellow officers interviewed
Arciga following his arrest on an unrelated crime. A recording of the interview
was played for the jury. After waiving his Miranda rights, Arciga told the officers
he had been acquainted with Parra and his father for about two years. According
to Arciga, Parra’s father was involved in robbing drug dealers. Arciga acted as a
lookout during two of these robberies. On one of those occasions, Zuniga was
present. Arciga said that by April 2009 he was no longer working with Parra’s
father or Zuniga. He also denied knowing Zarate, and initially denied ever being
in Bellflower. After being informed that he had been identified by several
witnesses as a shooter during Zarate’s murder and that his cellphone had been used
in Bellflower on April 22, 2009, Arciga conceded that he had gone with Parra’s
father on a drug deal and that they may have gone to Bellflower.
After further questioning, Arciga admitted going to an apartment in
Bellflower with Parra’s father, Parra, and Zuniga to rob drug dealers. Arciga was
not armed, but Parra’s father and Zuniga were armed with pistols. At the
apartment, they met four drug dealers -- a woman and three men -- who brought 60
pounds of marijuana. Arciga checked the product while the woman counted the
money. He heard some commotion and looked up. He saw one of the male drug
dealers pull out a pistol, and almost simultaneously Zuniga pulled out his gun.
Arciga did not see Zuniga shooting; he just heard shots. Arciga ran out of the
apartment with the bag of drugs. As he did so, he saw the drug dealer with the
pistol fall to the ground.
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B. The Defense Case.
Arciga and Zuniga did not testify.
Parra testified he had never been to the crime scene. He stated that his
father, Armando Parra, was a drug dealer, and that he had helped his father sell
drugs. Parra also testified that his father robbed drug dealers, but claimed he never
participated because his father “didn’t want to risk me.” After Parra’s father was
arrested in May 2009, Parra assisted “Martinez” in a robbery at 32nd and Central.
When Parra was arrested in November 2009, Martinez was one of the passengers
in the vehicle.
Detective Blagg testified that he interviewed Ayala -- the woman who lived
in the apartment where the shooting occurred. During her interview, she told
Detective Blagg that she had previously seen Arciga with Parra’s father. Ayala
also told the detective that “Miguel” had paid her money for the use of her
apartment.
DISCUSSION
Appellants contend the trial court should have excluded Arciga’s out-of-
court statements to Alvarez; that it gave erroneous jury instructions; and that it
imposed an erroneous sentence on count 1. We address each contention in turn.
A. The Trial Court did not Err in Admitting Arciga’s Out-of-Court
Statements to Alvarez.
The trial court overruled defense objections to the testimony of Alvarez and
admitted the testimony under Evidence Code section 1230, as a statement against
penal interest. Alvarez subsequently testified that Arciga told him that he (Arciga),
Parra’s father, and Zuniga were involved in robbing drug dealers (dope rips); that
during one such robbery, he had shot a man; and that Parra and Zuniga had been
present. Parra and Zuniga contend the admission of Arciga’s statements
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implicating them in the murder of Zarate was error under Bruton and violated their
Sixth Amendment confrontation rights. For the reasons set forth below, we reject
that argument.
In People v. Greenberger (1997) 58 Cal.App.4th 298 (Greenberger), this
court held that “Bruton does not stand for the proposition that all statements of one
defendant that implicate another may not be introduced against all defendants in a
joint trial.” (Id. at p. 332.) We concluded that out-of-court statements implicating
a codefendant may be admitted at a joint trial without denying the codefendant’s
right to confrontation, if the statements “satisfy the statutory definition of a
declaration against interest and likewise satisfy the constitutional requirement of
trustworthiness.” (Ibid.) Arciga’s statement to Alvarez satisfied each of these
requirements and thus was admissible.
Under California law, a statement is a declaration against interest if “the
declarant is unavailable as a witness and the statement, when made, . . . so far
subjected him to the risk of civil or criminal liability . . . that a reasonable man in
his position would not have made the statement unless he believed it to be true.”
(Evid. Code, § 1230.) Here, Arciga was unavailable as a witness because he
exercised his right not to testify at trial. His admission that he shot a drug dealer
was a declaration against penal interest because it subjected him to criminal
liability for Zarate’s death. In addition, Arciga’s statement met the trustworthiness
requirement because it was made immediately after the murder in the context of a
conversation between two acquaintances. As we observed in Greenberger, “the
most reliable circumstance is one in which the conversation occurs between friends
in a noncoercive setting that fosters uninhibited disclosures.” (Greenberger, supra,
58 Cal.App.4th at p. 335.) Arciga’s statements to Alvarez met that criterion.
Thus, the trial court did not err in admitting the statements.
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Parra and Zuniga contend that Arciga’s statements should have been
sanitized to omit references to them. We disagree. In People v. Samuels (2005)
36 Cal.4th 96, the California Supreme Court held that the trial court did not err in
admitting an unavailable declarant’s remark that “‘He had done it [killed the
victim] and Mike [Silva] had helped him. And that [the defendant] had paid him.’”
(Id. at p. 120.) The court rejected the defendant’s argument that the declarant’s
assertion that “‘[defendant] had paid him’” for the killing was either collateral to
the declarant’s statement against penal interest or an attempt to shift blame: “This
admission, volunteered to an acquaintance, was specifically disserving to
[declarant’s] interests in that it intimated he had participated in a contract killing --
a particularly heinous type of murder -- and in a conspiracy to commit murder.
Under the totality of the circumstances presented here, we do not regard the
reference to defendant incorporated within this admission as itself constituting a
collateral assertion that should have been purged from [the witness’s] recollection
of [declarant’s] precise comments to him. Instead, the reference was inextricably
tied to and part of a specific statement against penal interest.” (Id. at p. 121.)
Here, Arciga’s references to Parra and Zuniga were in the context of a scheme in
which all three men set out to rob drug dealers. During one such robbery, a shoot-
out occurred. Thus, the references to Parra and Zuniga were inextricably tied to
and part of Arciga’s statement against penal interest. In any event, any error was
harmless. Zuniga himself later admitted to Alvarez that he was present. The
victims testified that all three men were present during the incident, and forensic
evidence placed them at the crime scene. In short, there was no reasonable
probability of a more favorable outcome had Alvarez’s testimony been sanitized.
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B. The Trial Court Properly Instructed the Jury.
1. The Trial Court did not Err by not Instructing on Lesser
Included Offenses.
Both juries were instructed on felony murder, first degree felony-murder,
and first degree felony-murder as an aider and abettor. Aside from felony murder,
the juries were not instructed on any other theory of murder. Appellants contend
the trial court erred when it failed to instruct, sua sponte, on the lesser included
offenses of second degree murder and voluntary manslaughter.
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence. On the other
hand, the court is not obliged to instruct on theories that have no such evidentiary
support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “[T]he existence of
‘any evidence, no matter how weak’ will not justify instructions on a lesser
included offense, but such instructions are required whenever evidence that the
defendant is guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is
‘“evidence from which a jury composed of reasonable [persons]
could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.”
(Ibid., quoting People v. Flannel (1979) 25 Cal.3d 668, 684.)
We independently review a trial court’s failure to instruct on a lesser
included offense. (People v. Licas (2007) 41 Cal.4th 362, 366; People v. Posey
(2004) 32 Cal.4th 193, 218.) However, “[i]n deciding whether there is substantial
evidence of a lesser offense, [we do] not evaluate the credibility of witnesses, a
task for the jury.” (People v. Breverman, supra, 19 Cal.4th at p. 162.)
Zuniga contends there was substantial evidence from which a jury could
conclude that appellants went to the Bellflower apartment to engage in a drug sale,
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not to commit a burglary or a robbery. He argues there was no burglary because
Ayala gave Arciga permission to use the apartment, and there was no robbery by
force or fear, but rather “a drug deal gone bad,” as Rojas told Detective Blagg
when he was interviewed at the hospital after the shooting. We disagree. Ayala
expressly denied giving anyone permission to use the apartment to conduct drug
sales or to rob drug dealers. At trial, Rojas testified that when Gutierrez was
counting the money, he heard, “This is a stick up,” before appellants drew their
guns. Thus, Rojas’s trial testimony did not suggest that the shooting was the result
of a drug deal gone bad.
Appellants also contend there was substantial evidence to support voluntary
manslaughter based on unreasonable self-defense. They argue Rojas told
Detective Blagg that Zarate had pulled out a handgun at the same time appellants
did. In addition, the forensic evidence suggests that Zarate fired a shot. Finally,
Arciga’s jury heard Arciga’s interview, in which he told the officers that Zarate
drew his gun before Zuniga drew his. However, at trial, Rojas testified
consistently that Zarate was shot before he could draw his gun. Additionally,
Vasquez testified that Zuniga started shooting without any provocation; Vasquez
was walking toward Gutierrez to assist her in counting the money when Zuniga
started shooting. As to Arciga’s self-serving statement that Zarate drew a gun first,
no other evidence supports this factual scenario. Moreover, in the same interview,
Arciga stated he was unarmed and acting only as a lookout, evidence contradicted
by extensive trial testimony. Specifically, Vasquez testified that Arciga shot
Zarate multiple times and continued shooting after Zarate had fallen to the ground.
On this record, we conclude Arciga’s statement did not constitute substantial
evidence to support an instruction on voluntary manslaughter.
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Arciga separately contends he was entitled to a second degree felony-murder
instruction, as his action in checking the marijuana constituted substantial evidence
supporting an inference that he did not intend to aid and abet the robbery. He
argues that if he had wanted to aid and abet the robbery, “it would not have
mattered whether the drugs passed inspection.” We conclude Arciga’s conduct
was insufficient to support an instruction on the lesser included offense of second
degree felony-murder. Appellant’s inspection of the product assisted the robbery,
as it lulled the sellers into believing the encounter was a typical drug sale.
Arciga’s subsequent conduct, as attested to by the victims, demonstrated that he
had the intent to rob the victims, or at the least, to aid and abet in the robbery.
In any event, any error was harmless under the standard articulated in People
v. Watson (1956) 46 Cal.2d 818, 837 (Watson). (See People v. Breverman, supra,19 Cal.4th at p. 178 [in a noncapital case, error in failing sua sponte to instruct on
lesser included offenses is reviewed for prejudice exclusively under Watson].)
Here, after an examination of the entire record, it is not reasonably probable that
appellants would have obtained a more favorable outcome had the juries been
instructed on the lesser included offenses. In returning true findings on the robbery
and the burglary special circumstances allegations as to all appellants, the jury
necessarily rejected (1) Zuniga’s theory that Ayala had given permission to use the
apartment; (2) appellants’ unreasonable self-defense theory; and (3) Arciga’s
theory that he did not share an intent to rob and aid the victims. As a murder
committed in the perpetration of a robbery or a burglary is first degree murder (see
§ 189), the jury necessarily found beyond a reasonable doubt that appellants were
guilty of first degree felony-murder. (See People v. Elliot (2005) 37 Cal.4th 453,
476 [trial court’s failure to instruct on second degree murder harmless beyond a
reasonable doubt because “the true finding as to the attempted-robbery-murder
15
special circumstance establishes here that the jury would have convicted defendant
of first degree murder under a felony-murder theory, at a minimum, regardless of
whether more extensive instructions were given on second degree murder”];
People v. Koontz (2002) 27 Cal.4th 1041, 1086-1087 [any error in failing to
instruct the jury on the definition of manslaughter and the doctrine of unreasonable
self-defense harmless, as jury necessarily rejected the unreasonable self-defense
theory in returning a true finding on the robbery special-circumstance allegation].)
Unlike the circumstances in People v. Campbell (2015) 233 Cal.App.4th
148, relied on by Zuniga, here, there was substantial evidence that appellants
committed a robbery or intended to aid and abet one. The victims testified that
appellants robbed them at gunpoint. No evidence suggested any appellant was
unaware he was going to the apartment to rob drug dealers. During the police
interview, Arciga told the officers he acted only as a lookout during the incident,
but admitted knowing he was going to an apartment with a group to rob drug
dealers. (Cf. People v. Campbell, supra, at pp. 155-156 [appellant testified at trial
he did not go with codefendant to commit a robbery].) Finally, although Parra
presented a mistaken identity defense -- that it was his father who committed the
crimes -- the verdicts demonstrated the jury did not believe his defense. “Once the
jury concluded that the defendant was the perpetrator, . . . the special circumstance
finding meant that the jury would not have found the defendant guilty of a lesser
included offense.” (Id. at p. 169.) In short, any error in failing to instruct on lesser
included offenses was harmless.
2. The Trial Court did not Err in not Instructing the Jury on Self-
Defense.
In a related contention, Arciga and Zuniga argue the trial court erred in not
instructing the jury on self-defense, based on evidence suggesting that Zarate drew
16
his gun first or at the same time as appellants. For the same reasons discussed
above, there was no substantial evidence to support the giving of this instruction.
At trial, Rojas testified consistently that Zarate was shot before he could pull out
his handgun. Vasquez testified that Zuniga fired his gun without provocation.
Only Arciga’s jury heard his statement to the police that Zarate drew his gun first,
but the statement was unsupported by any other evidence. On this record, no
substantial evidence supported an instruction on self-defense.
3. No Error Occurred with Respect to the Instructions on the
Special Circumstances Allegations.
The jury for Parra and Zuniga was instructed with CALJIC No. 8.80.1 as
follows:
“If you find a defendant in this case guilty of murder of the first
degree, you must then determine if one or more of the following
special circumstances are true or not true.
“The People have the burden of proving the truth of a special
circumstance. If you have a reasonable doubt as to whether a special
circumstance is true, you must find it to be not true.
“[¶] . . . [¶]
“If you find that a defendant was not the actual killer of the human
being or if you are unable to decide whether the defendant was the
actual killer or an aider and abettor or a co-conspirator, you cannot
find the special circumstance to be true as to that defendant unless you
are satisfied beyond a reasonable doubt that such defendant with the
intent to kill, aided, abetted, counseled, commanded, induced,
requested or assisted any actor in the commission of the murder in the
first degree or with reckless indifference to human life and as a major
participant aided, abetted, counseled, commanded, induced, solicited,
requested or assisted in the commission of the crime of robbery or
burglary which resulted in the death of a human being, namely,
Carlos Zarate.” (Italics added.)
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The jury also was instructed on robbery with CALJIC Nos. 9.40, 9.42, and
9.42.1; on burglary with CALJIC Nos. 14.50, 14.51, and 14.52; and on
circumstantial evidence with CALJIC Nos. 2.00 and 2.01.
The jury verdict forms had separate entries for each special circumstance
allegation. As to each appellant, the jury found that the murder of Zarate was
committed during the commission of a robbery and during the commission of a
burglary.
Parra and Zuniga contend the trial court prejudicially erred in failing to
provide proper and complete instructions on the special circumstances allegations.
Specifically, they contend that the instructions (1) did not specify what special
circumstances the jury was to consider; (2) did not set forth the elements of the
robbery and burglary special circumstances; and (3) did not instruct the jury on
how to evaluate circumstantial evidence in determining the special circumstances
allegations. We disagree.
First, as given here, CALJIC No. 8.80.1 informed the jury that the special
circumstances were robbery and burglary. Moreover, the jury verdict forms set
forth that the special circumstances were robbery and robbery, and the jury marked
“TRUE” next to each special circumstance allegation on the verdict form. On this
record, no reasonable jury would have been confused about what special
circumstances should be considered.
Second, although CALJIC No. 8.80.1 did not set forth the elements of
robbery and burglary, the jury was instructed about the elements of robbery and
burglary in other jury instructions. Thus, when the instructions are considered as a
whole, no reasonable jury would have been confused about what elements
constitute the offense of robbery or burglary. (See People v. Rhodes (1971)
21 Cal.App.3d 10, 20 [“fact that the necessary elements of a jury charge are to be
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found in two instructions rather than in one instruction does not, in itself, make the
charge prejudicial”].)
Similarly, although the jury was not instructed with CALJIC Nos. 8.83 and
8.83.1 on considering circumstantial evidence to determine the special
circumstance allegations, the jury was instructed with CALJIC Nos. 2.00 and 2.01,
the general instructions on evaluating circumstantial evidence. The California
Supreme Court has held that CALJIC Nos. 8.83 and 8.83.1 are duplicative of
CALJIC No. 2.01. (See People v. Hines (1997) 15 Cal.4th 997, 1051 [trial court
need not instruct on CALJIC Nos. 8.83 and 8.83.1 where the jury was instructed
with CALJIC No. 2.01].)
We also reject appellants’ related contention that the trial court should have
instructed the jury sua sponte with CALJIC No. 8.81.17, the felony-murder
instruction. That instruction generally provides that to find the special
circumstance allegation true, the jury must find (1) that the murder was committed
while the defendant or an accomplice was engaged in the commission of another
felony, and (2) that the other felony was not merely incidental to the commission
of the murder. Here, the first part of CALJIC No. 8.81.17 was duplicative of
CALJIC No. 8.80.1 as given. As to the second part of CALJIC No. 8.81.17, it
must be given only where evidence would suggest that the robbery or burglary was
merely incidental to the murder. (See People v. D’Arcy (2010) 48 Cal.4th 257, 297
[“trial court has no duty to instruct on the second paragraph of CALJIC No.
8.81.17 unless the evidence supports an inference that the defendant might have
intended to murder the victim without having had an independent intent to commit
the specified felony”].) Here, no substantial evidence suggested appellants
intended to kill Zarate, but not rob him of money and/or drugs. Thus, the trial
court had no duty to instruct with CALJIC No. 8.81.17.
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4. The Trial Court did not Err in Failing to Give Accomplice
Corroboration Instructions.
Under section 1111, “[a] conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to
connect the defendant with the commission of the offense; and the corroboration is
not sufficient if it merely shows the commission of the offense or the
circumstances thereof. An accomplice is hereby defined 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.” Thus, “[i]f sufficient
evidence is presented at trial to justify the conclusion that a witness is an
accomplice, the trial court must so instruct the jury, even in the absence of a
request.” (People v. Brown (2003) 31 Cal.4th 518, 555.)
Parra and Zuniga contend the trial court erred in failing to instruct that
Arciga was an accomplice and that his out-of-court statements to Alvarez were
subject to the accomplice corroboration rule. Parra also contends the court should
have provided an accomplice corroboration instruction with respect to Zuniga’s
statements to Alvarez. Zuniga separately contends the court should have provided
an accomplice corroboration instruction with respect to Parra’s out-of-court
statements to officers in November 2009. Both appellants further contend that the
victims -- Gutierrez, Rojas, and Vasquez -- also were accomplices, and that their
testimony was subject to the accomplice corroboration rule. We independently
review appellants’ contentions. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
In People v. Brown, the California Supreme Court held that no corroboration
was necessary where the statements of an accomplice were admissible as
declarations against interest. (People v. Brown, supra, 31 Cal.4th at p. 556 [where
accomplice’s statements were sufficiently trustworthy to permit their admission as
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declarations against interest, “no corroboration was necessary, and the court was
not required to instruct the jury to view [the] statements with caution and to require
corroboration”].) Here, Arciga’s statements were admissible as declarations
against penal interest (Evid. Code, § 1230). Thus, the trial court was not required
to provide an accomplice corroboration instruction with respect to such statements.
Similarly, Zuniga’s statements to Alvarez also were admissible as
declarations against penal interest. Zuniga stated that he, not Arciga, shot the drug
dealer. He made the statement to an acquaintance in a noncoercive setting. Under
Greenberger, Zuniga’s statements were sufficiently trustworthy to be admissible
despite the hearsay rule. Under People v. Brown, those same statements did not
require corroboration.
In addition, Zuniga’s statements to Alvarez did not implicate Parra in any
crime. Testimony is subject to the accomplice corroboration rule only when it is
used as substantive evidence of guilt. (People v. Williams (1997) 16 Cal.4th 153,
245; People v. Andrews (1989) 49 Cal.3d 200, 214.) Thus, Parra cannot claim
error with respect to the trial court’s failure to provide an accomplice corroboration
instruction regarding Zuniga’s statements.
Similarly, Zuniga cannot claim error with respect to Parra’s statements to the
police following his arrest in November 2009. Parra’s statements did not implicate
Zuniga in any of the charged crimes.
Finally, with respect to the victims, their testimony was not subject to the
accomplice corroboration rule because they were not accomplices. As set forth in
section 1111, an accomplice is a person “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.” Gutierrez, Rojas, and Vasquez were not
liable for any crimes charged in the amended information. Thus, the trial court
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was not required to provide instructions on the accomplice corroboration rule with
respect to their testimony.
C. There was no Cumulative Error.
Finally, appellants contend that even if harmless individually, the cumulative
effect of the claimed trial errors mandates reversal of their convictions. Because
we have found no errors, their claim of cumulative error fails. (See People v.
Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
D. Appellants were Properly Sentenced.
Appellants contend their sentences on count 1 are legally incorrect. They
argue that the sentence for first degree murder with a special circumstance is life
imprisonment without the possibility of parole. However, the trial court’s oral
pronouncement of judgment reflects that appellants were sentenced to 25 years to
life without the possibility of parole on count 1. Arciga initially requested that this
court correct the sentence, but in his reply brief, joined Parra’s request that we
remand for resentencing. The People concede the correct sentence is life
imprisonment without the possibility of parole, and that the trial court orally
imposed an unauthorized sentence on count 1. However, the People argue that no
resentencing or correction is needed, as the correct sentences are reflected in the
minute orders and the abstracts of judgment.
Parra further contends that his sentence on count 2 is unauthorized. He
contends the correct sentence is 28 months, but the trial court orally imposed a
three-year-and-four-month term. The People concede the correct term is 28
months, but argue no resentencing is necessary because the minute order and
abstract of judgment reflect the correct term.
Appellants do not contest that the minute orders and abstracts of judgment
correctly reflect lawful sentences. Although the general rule is that the oral
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pronouncements of the court are presumed correct (see People v. Mesa (1975)
14 Cal.3d 466, 471), under these circumstances we will deem the minute orders
and abstracts of judgment to prevail over the reporter’s transcript. (See People v.
Cleveland (2004) 32 Cal.4th 704, 768 [where trial court imposed an unauthorized
sentence enhancement, but the minute order and abstract of judgment properly did
not include the enhancement, “we will deem the minute order and abstract of
judgment to prevail over the reporter’s transcript”]; accord, People v. Thompson
(2009) 180 Cal.App.4th 974, 978 [correct calculation of term was reflected in
court’s minutes and abstract of judgment; erroneous statements in reporter’s
transcript are of no effect].) Thus, resentencing is unnecessary.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J. COLLINS, J.
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