People v. Pulido CA6

Filed 8/11/15 P. v. Pulido CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039370
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS090535)
v.
JUAN PULIDO,
Defendant and Appellant.
Defendant Juan Pulido was convicted by jury trial of first degree murder (Pen.
1
Code, § 187, subd. (a)), shooting at an inhabited dwelling (§ 246), attempted murder
(§§ 187, subd. (a), 664), assault with a firearm (§ 245, subd. (a)(2)), two counts of active
participation in a criminal street gang (§ 186.22, subd. (a)), and aggravated assault
(§ 245, subd. (a)(1)). The jury also found true gang (§ 186.22, subd. (b)) and firearm
2
(§ 12022.53, subds. (c), (d)) allegations. Defendant was committed to state prison to
serve a 28-year determinate term and a consecutive indeterminate term of 50 years to life.
Defendant contends on appeal that the judgment must be reversed because (1) his
trial counsel was not permitted to elicit testimony from his accomplice about the
1
Subsequent statutory references are to the Penal Code unless otherwise specified.
2
The jury found not true the premeditation allegation attached to the attempted
murder count.
accomplice’s discussions with the accomplice’s attorney about their negotiations for a
plea agreement, (2) the accomplice corroboration instruction was inadequate, (3) the
court’s instructions on false statements and false testimony were not “balanced,” (4) the
court gave conflicting instructions on malice, (5) defendant’s trial counsel was
prejudicially deficient in failing to request a limiting instruction as to evidence of the
accomplice’s guilty plea, and (6) the court erroneously upheld the prosecution’s section
1054.7 requests for nondisclosure of information. We affirm the judgment.
I. Factual Background
A member of the Salinas Acosta Plaza criminal street gang, a Norteño gang, was
shot in May 2008. In gang culture, a gang will be “ridiculed” if it does not retaliate when
one of its members is shot. Acosta Plaza gang members wanted to retaliate for the May
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2008 shooting. Acosta Plaza gang members believed that a “big” Sureno lived on Lewis
Circle in Salinas.
On November 2, 2008, a woman named Andrea, who owned a white BMW, drove
defendant, his cousin Jorgé Alejandro Fernandez, and another woman named Andrea
Johnson from Salinas to a football game in Oakland. Fernandez was an associate of the
Acosta Plaza gang and had been “hanging out” with Acosta Plaza gang members for a
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couple of months. Fernandez was drinking on the way to the game and after the game.
Defendant was also drinking and used some cocaine. On their way back from the game,
Fernandez received a cell phone call for defendant from an Acosta Plaza gang member.
3
The primary activities of the Acosta Plaza gang include murder and attempted
murder.
4
Andrea testified that Fernandez was not drunk at any point, but Fernandez testified
that he was “really drunk” as they drove home.
2
Fernandez handed his phone to defendant. Fernandez heard defendant say “ ‘Don’t trip.
I’ll handle it.’ ”
Fernandez fell asleep during the drive back to Salinas. When they got back to
Salinas, defendant told Andrea to take them to Acosta Plaza, a street in Salinas that is the
location of the Acosta Plaza apartment complex, the “main hangout area” for the Acosta
Plaza gang. At Acosta Plaza, defendant got out of the car for a while and then returned.
Defendant directed Andrea to another neighborhood in Salinas and had her park her car
on London Way, which was near Lewis Circle. Defendant and Fernandez got out of the
car, and the two women remained in the car. Defendant and Fernandez were both
wearing T-shirts and jeans, and defendant, who was taller and heavier than Fernandez,
was wearing a black beanie.
By this point, it was about 10:00 p.m. The two men went to a home on Lewis
5
Circle, and Fernandez knocked on the front door. The victim, who was referred to as
“Little Joe” at trial, lived in this home with his parents and his four younger siblings,
including his brother Fabian. Little Joe had a history of associating with Sureño gang
members. Little Joe’s mother opened the door and found Fernandez on her porch.
Fernandez, who was a stranger to Little Joe’s mother, asked if Fabian was there. Little
Joe’s mother inquired “ ‘what do you want him for’ ” and asked Fernandez for his name.
Fernandez said his name was “Alex.” Little Joe’s mother closed the door and went
upstairs to ask Fabian and Little Joe if they knew someone named Alex. Fabian told her
that he did not know anyone named Alex. Little Joe said “let me go check who it is.”
Although Little Joe’s mother said that she would “tell him you’re not here,” Little Joe
said “let me just go look.”
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Acosta Plaza gang members believed that a particular white van had been involved
in the May 2008 shooting. Two weeks after November 2, 2008, a white van that looked
like that van was parked in the driveway of the home on Lewis Circle where the shooting
had taken place.
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Little Joe went downstairs, opened the door, stepped out, and closed the door
behind him. Little Joe’s mother remained just inside the door, and she saw that
Fernandez was on a walkway past a pillar in front of the house when Little Joe stepped
out. She heard a series of about five gunshots and opened the door. Little Joe ran back
into the house and fell to the floor. He had been struck by bullets in his chest and armpit.
Little Joe’s mother ran out the door and saw Fernandez and a taller man standing in her
neighbor’s yard facing each other and doing something with their hands. She yelled at
them, and Fernandez turned toward her and began shooting at her. She ran back into her
house. Little Joe died from his wounds.
A neighbor on Lewis Circle heard two series of gunshots, opened his front door,
and looked out. He saw two young men running away from the scene of the shooting.
One of the men was “kind of husky,” and the other man was “medium to slight build.”
John Doe, who lived on nearby London Way, also heard the gunshots. He looked
out his upstairs bedroom window and saw two men run toward a parked white BMW and
get into it. Doe had “a bird’s-eye view” from his window and could see the faces and
bodies of the men. The men appeared to be wearing white T-shirts and black beanies.
One of the two men was “a lot thicker and bigger” than the other man. The bigger man
was “linebacker size,” six feet two or three inches tall, and 260 pounds. Doe “was
focusing” on the bigger man, and his “mind took a mental photo” of this man. The
bigger man got into the backseat behind the driver, and the smaller man got into the
backseat on the passenger’s side. After the men got into the car, the car left the area.
A minute after defendant and Fernandez left the car, Andrea heard two series of
gunshots separated by a pause. After the gunshots, Andrea saw Fernandez and defendant
running back to the car. Defendant got into the backseat of the car behind the driver, and
Fernandez got into the passenger seat. Fernandez told Andrea “ ‘Go, go.’ ” Fernandez
said “ ‘I think I got him,’ ” and defendant said “ ‘I know I got him.’ ” Andrea drove them
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back to Acosta Plaza, and Fernandez and defendant got out of the car there and ran into
the apartment complex.
The police responded to the shooting and found a beer can in the gutter near where
Andrea’s BMW had been parked on London Way. Fernandez’s fingerprints were found
on the beer can. A birthday card from Andrea’s mother to Andrea was also found at that
location. The police contacted Andrea in January 2009, and she told them what had
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happened on November 2, 2008. Fernandez was arrested in January 2009. Defendant
turned himself in to the police in January 2009.
Doe spoke to the police shortly after the shooting and again several weeks after the
shooting. He told the police that “he got a good look at [the bigger man’s] face” and he
thought he would be able to identify him if he saw him again. He had a “vivid memory”
of the bigger man. He described the bigger man as six feet two inches tall and around
250 pounds. In September 2009, 10 months after the shooting, Doe identified defendant
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in a photo lineup as the bigger man he had seen that night. He “was 90 percent or more
sure that it was the guy.”
Although Fernandez and defendant were not housed together in jail, in February
2011 they were accidentally left together after being transported back from a court
appearance. An alleged sex offender was also accidentally left with them. Fernandez
and defendant knew that the man was an alleged sex offender because he wore a green
wristband. The Acosta Plaza gang had a policy of requiring gang members to attack a
sex offender if the opportunity arose. After defendant and Fernandez were unshackled,
defendant told Fernandez that he was going to attack the alleged sex offender. Both
6
There was no discussion of Andrea being placed in the witness relocation program
until after she had told the police what had happened that night.
7
At the trial, four years after the shooting, Doe was not able to make a courtroom
identification of defendant as the bigger man. As the trial court noted, defendant’s
appearance had changed significantly in the four years between his arrest and the trial.
5
defendant and Fernandez then attacked the alleged sex offender and repeatedly punched
him in the head.
In February 2011 and March 2011, notes were found in defendant’s cell. One of
these notes listed the Norteño gang’s rules. Its presence in his cell demonstrated that he
was a member of the Norteño gang. In September 2012, defendant gave Fernandez a
note suggesting that they needed to get their stories “straight” and “iron out any
wrinkles.” In his note, defendant said “I think we got a good chance for a hung jury.”
II. Procedural Background
Defendant and Fernandez were originally jointly charged by information with all
of the offenses other than the gang counts and the aggravated assault count, which were
alleged only as to defendant. However, in September 2012, Fernandez agreed to plead
guilty to the murder and attempted murder counts and testify against defendant.
Defendant testified on his own behalf at trial. He claimed that he had been
dropped off at his home as soon as they got back to Salinas from Oakland on
November 2, 2008. He denied receiving any phone calls after the game. Defendant
testified that he went to sleep as soon as he got home. He knew nothing about the
shooting until he learned in January 2009 that he was wanted for murder. He turned
himself in the next day.
Defendant admitted that he associated with Norteño gang members, but he denied
that he was a gang member. He also admitted that he had committed the February 2011
assault. He said he did so because “I have a dislike for rapist” due to something that had
happened to a family member. Defendant denied that there was any gang motivation for
that assault. Defendant admitted that he had given Fernandez a note. He explained that
this note “was more like if he could help me out because, I mean, he knows I haven’t
been involved in this. . . . I would appreciate help if you help me out. You know, I’ve
been innocent from the start.”
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Defendant’s trial counsel argued to the jury that the prosecution’s case was based
on “a shoddy, questionable identification by Mr. John Doe” and “two questionable self-
interested witnesses [Andrea and Fernandez] who are getting a package deal out of this
thing.”
III. Discussion
A. Attorney-Client Testimony
Defendant claims that the trial court prejudicially erred in “preclud[ing] inquiry”
of Fernandez “about conversations with his own lawyer during the plea negotiation
process.” He asserts that such questioning was “vitally important” so that defendant
could “fully explore [Fernandez’s] motive and expectations for testifying.”
1. Background
Fernandez was arrested two months after the shooting. He originally told the
police that he had been dropped off before the shooting occurred and knew nothing about
the shooting. In July 2012, Fernandez asked his attorney to contact the prosecution and
try to obtain a “deal” based on information that Fernandez could provide about another
cousin who was also facing murder charges in an unrelated case. Fernandez had
information that this other cousin had committed an additional murder. Fernandez, who
believed he was facing 75 years to life, hoped to obtain a “deal” for something less than a
life sentence.
Fernandez first spoke to the prosecutor in July 2012. The prosecutor told
Fernandez that he would have to also testify against defendant. Fernandez met with the
prosecutor twice more about the other cousin’s case and then twice about defendant’s
case. He did not admit his role in the November 2008 shooting until his second interview
with the prosecution. In early September 2012, Fernandez began providing information
to the prosecution about the November 2008 shooting. Fernandez originally told the
7
prosecution that he had done nothing wrong and that defendant had fired all of the shots.
He admitted at trial that his original statements to the prosecutor were lies.
Just before Fernandez entered into a plea agreement in September 2012, defendant
gave Fernandez a note stating that they “needed to get our stories straight.” A few days
later, Fernandez agreed to testify against both defendant and his other cousin. The
written plea agreement, which was in evidence at trial, required Fernandez to testify
truthfully in the prosecutions of both defendant and his other cousin. Under this plea
agreement, Fernandez pleaded guilty to murder and attempted murder and admitted a
gang allegation as to the murder count in exchange for a sentence of 15 years to life and a
concurrent or consecutive term of as much as nine years. Fernandez testified on cross-
examination that he had “hope” that he would be released from prison in 11 years.
Fernandez testified at trial as a prosecution witness and explained the chronology
8
of his initial lies, subsequent attempts to obtain a deal, and eventual agreement to testify.
He claimed that his memory of the night of the shooting was “choppy” because he was
“really drunk.” Fernandez insisted that defendant was the one in charge that night. After
they got out of Andrea’s car on London Way, defendant told Fernandez “ ‘you’re going to
ask for some fool named Fabian.’ ” Fernandez knew that there was speculation that a
“big” Sureno lived on Lewis Circle.
Fernandez testified that, when Little Joe came out of the house on Lewis Circle,
Little Joe came toward Fernandez “in an aggressive manner” and said “ ‘Yeah, fool.
What’s up?’ ” Fernandez claimed that he was “still drunk” at the time of the shooting,
and he did not know that defendant had a gun until defendant started shooting. He
testified that defendant shot Little Joe at close range by putting the gun to Little Joe’s
“stomach area” and firing four times. Fernandez provided an explanation for his
subsequent possession of the gun. He testified that, after defendant shot Little Joe, he and
8
Fernandez also testified as an expert on the Acosta Plaza gang.
8
defendant both ran but “bumped into each other” on the neighbor’s lawn, and defendant
handed Fernandez the gun. Fernandez claimed that he then ran back and shot twice at a
shadow in the doorway. He and defendant then ran back to the car. Fernandez testified
that defendant got into the back seat behind the passenger’s seat well before Fernandez
reached the car, and Fernandez got into the front passenger’s seat. Inside the car,
Fernandez testified that he said “ ‘I think I got him.’ ”
During cross-examination of Fernandez at trial about his initial decision to seek a
deal based on information about his other cousin, defendant’s trial counsel asked: “Well,
was there back-and-forth discussions -- your attorney came and gave you their answer,
and then you asked for something, you know, and the -- did you and your attorney go
back and forth to try and identify the areas of what you wanted to talk about?” The
prosecutor objected to this question on the ground that it “[c]alls for privileged
information.” The court sustained the objection and stated: “I’m excluding
conversations. I’m only -- the objection was sustained only as to the conversation
between him and his attorney, not to conversation between him and his attorney that
other people attended.” Defendant’s trial counsel continued to extensively question
Fernandez about his negotiations with the prosecution and the plea agreement.
The defense theory at trial was that Fernandez had been the only person involved
in the shooting. “[Defendant] wasn’t even there.” Defendant’s trial counsel argued to the
jury that Fernandez had a “gigantic incentive . . . to come in and say whatever he wants
about [defendant]” because he hoped to get out of prison in 11 years. “And, don’t forget,
he’s the one that sought the deal. The prosecutor didn’t go to him and say, ‘Hey, you
want to deal with us?’ No. He sought the deal. He sent his attorney. He negotiated for a
couple of months . . . .” “The deal is because the guy is a proven killer. And he’s getting
away with it. And he’ll be out in 11 years. [¶] Who else gets out in 11 years for killing
somebody? Nobody. And this was his only chance. He was looking at so much dark
time in the future that he was never going to get out.” “[H]e gives testimony that benefits
9
him, helps him with his deal. Can’t be proven either way. And he expects you to
swallow it lock, stock and barrel.” “You know that Alex is a liar. You know that he’s a
murderer.”
2. Analysis
Defendant’s trial counsel attempted to ask Fernandez if there were “back and
forth” discussions between Fernandez and his attorney during which Fernandez “asked
for something” and the two of them tried to “identify the areas” that Fernandez was
willing to disclose to the prosecution. Defendant insists that by sustaining the
prosecutor’s objection to this single question on privilege grounds the trial court
improperly precluded his trial counsel from inquiring into Fernandez’s “motive and
expectations for testifying” and thereby violated his confrontation rights.
Defendant premises his claim on several federal cases, which are not binding on
us. (People v. Bradley (1969) 1 Cal. 3d 80, 86.) The California Supreme Court’s
holdings, which do bind us (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d
450, 455), provide no support for his contention. In People v. Johnson (1989) 47 Cal. 3d
1194 (Johnson), the California Supreme Court rejected the claim that a defendant’s due
process rights permitted him to invade the attorney-client privilege to attack on cross-
examination the credibility of the testimony of a prosecution witness who was the
defendant’s accomplice and testified as part of a plea bargain. (Johnson, at p. 1228.) In
People v. Gurule (2002) 28 Cal. 4th 557 (Gurule), the California Supreme Court rejected
a claim based on due process and the confrontation clause that the defense was entitled to
pretrial access to confidential communications between a prosecution witness and his
attorney. (Gurule, at p. 594.)
Defendant claims that Gurule is inapposite because it concerned only pretrial
disclosure of privileged information. But Gurule clearly was not limited to the pretrial
disclosure context as it relied on Johnson, which, like the case before us, concerned
cross-examination at trial. While defendant attempts to distinguish Johnson, his
10
arguments are unsuccessful. While it is true that Johnson involved a due process claim,
not a confrontation clause claim, Gurule, which relied on Johnson was a confrontation
clause claim and found no basis for distinguishing Johnson. The fact that Johnson is
from 1989 is immaterial as it was reaffirmed by Gurule in 2002. The fact that evidence
was admitted in Johnson of unprivileged conversations between the witness and his
attorney does not distinguish it from this case. Fernandez testified extensively about
unprivileged statements made during plea negotiations.
Defendant’s attempts to identify California authority that supports his position are
also unsuccessful. The Court of Appeal in People v. Godlewski (1993) 17 Cal. App. 4th
940 (Godlewski) did not hold that the defense had a right to invade the attorney-client
privilege but instead assumed that there could be circumstances under which such an
invasion was warranted and found no basis permitting such an invasion in the case before
it. (Godlewski, at pp. 948-950 & fn. 27.) The Court of Appeal’s assertion in Vela v.
Superior Court (1989) 208 Cal. App. 3d 141 (Vela) that a criminal defendant has a right to
pretrial access to statements protected by the attorney-client privilege directly conflicts
with the California Supreme Court’s holding in Gurule and therefore cannot be relied
upon. (See People v. Petronella (2013) 218 Cal. App. 4th 945, 960 [Vela based on cases
that are “no longer the law.”].)
In any event, the trial court’s ruling was not an abuse of discretion. Defendant
acknowledges that a trial court has discretion to limit the extent of cross-examination, but
he argues that the trial court’s ruling was not a proper limit on the extent of cross-
examination but an unconstitutional preclusion of any cross-examination in a relevant
area. The record demonstrates otherwise. Defendant’s trial counsel was not precluded
from extensively cross-examining Fernandez about the plea agreement, his motivations
for seeking it, his negotiations with the prosecution regarding it, and his expectations
concerning the benefit he would obtain from it. There is no indication in the record that
Fernandez’s disclosure of his conversations with his attorney about what he was seeking
11
from, and offering to, the prosecution would have added anything of significant relevance
regarding Fernandez’s “motive and expectations for testifying” given the extensive
testimony elicited from Fernandez on this subject.
“ ‘Generally speaking, the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.’ ” (People v. Wilson (2008) 44 Cal. 4th 758,
794.) “A trial court’s limitation on cross-examination pertaining to the credibility of a
witness does not violate the confrontation clause unless a reasonable jury might have
received a significantly different impression of the witness’s credibility had the excluded
cross-examination been permitted.” (People v. Quartermain (1997) 16 Cal. 4th 600, 623-
624.)
On the record before us, there is no indication that the jury would have been given
a “significantly different impression” of Fernandez’s credibility if only he had been
required to testify about his conversations with his own attorney. Defendant argues that
we cannot uphold the court’s ruling as a proper exercise of discretion because the court
made a “blanket” ruling and failed to apply a balancing test. He assumes that, because
the court upheld the prosecutor’s objection on privilege grounds, the court “applied the
wrong standard” and failed to exercise any discretion. His assertion that “nothing in the
record suggests” that the court exercised discretion ignores the basic rule that we apply
on appeal. Where the record does not indicate the trial court’s rationale, we presume that
the trial court acted properly. (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564.)
Here, the trial court’s statements on the record did not affirmatively indicate whether it
utilized a balancing test in upholding the prosecutor’s privilege objection, but neither did
the court’s statements indicate that the court did not. We therefore presume that the trial
court exercised its discretion in ruling on this objection. As we find no abuse of
discretion, we reject defendant’s challenge to the trial court’s ruling on the prosecutor’s
privilege objection.
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Defendant also claims that his trial counsel was prejudicially deficient in failing to
seek an in camera hearing to determine the admissibility of Fernandez’s conversations
with his attorney. When a defendant challenges his conviction based on a claim of
ineffective assistance of counsel, he must prove that counsel’s performance was deficient
and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43
Cal. 3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
(Strickland, at p. 694.) Whenever counsel’s conduct can be reasonably attributed to
sound strategy, a reviewing court will presume that the conduct was the result of a
competent tactical decision, and defendant must overcome that presumption to establish
ineffective assistance. (Strickland, at p. 689)
Defendant makes no attempt to establish that, even if his trial counsel had
succeeded in obtaining an in camera hearing and even if the trial court had permitted the
cross-examination that was sought, “the result of the proceeding would have been
different.” Hence, he cannot establish that any deficiency by his attorney in failing to
request an in camera hearing was prejudicial and cannot prevail on his ineffective
assistance claim.
Defendant nevertheless asks us to remand for an in camera hearing. He cites no
authority for doing so under these circumstances where the appellate claim is ineffective
assistance of counsel. Both of the cases he cites involved trial court error, not ineffective
assistance. In Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie), the defendant sought
pretrial disclosure of confidential records of a child protection agency’s investigation of
the sexual abuse allegations against the defendant. (Ritchie, at p. 43.) The trial court did
not examine the records but denied the request for disclosure. (Ritchie, at p. 44.) The
Pennsylvania Supreme Court reversed the defendant’s subsequent conviction and held
that the defendant was entitled to disclosure of all of the records in the agency’s file.
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(Ritchie, at p. 46.) The United States Supreme Court’s plurality opinion directed that, on
remand, the trial court should review the records in camera and determine whether there
was information that would have changed the outcome of the trial. (Ritchie, at pp. 58-
59.) People v. Caplan (1987) 193 Cal. App. 3d 543 was similar. While there may be a
basis for a limited remand for an in camera hearing in a case where the trial court has
erred in failing to conduct, or improperly conducting, an in camera review, no authority
exists for such a remand where the claim on appeal is ineffective assistance in failing to
seek an in camera hearing.
B. Corroboration Instruction
Defendant claims that the trial court prejudicially erred in failing to include both
9
testimony and statements in the corroboration instruction because there was testimony
by John Coletti, the prosecutor’s investigator, about Fernandez’s pretrial statement that
defendant had committed the murder. Defendant’s opening appellate brief cites to a page
of the reporter’s transcript on which Coletti did give such testimony. However, this
9
The court told the jury that Fernandez “is an accomplice.” “You may not convict
the defendant, Juan Pulido, of . . . Counts 1 through 7 based upon the testimony of
[Fernandez] . . . alone. You may use the testimony of an accomplice to convict the
defendant only if the accomplice’s testimony is supported by other evidence that you
believe; two, the supporting evidence is independent of the accomplice’s testimony; and
three, the supporting evidence tends to connect the defendant to the commission of those
crimes. [¶] Supporting evidence, however, may be slight. It does not need to be enough
by itself to prove that the defendant is guilty of the charged crimes, and it does not need
to support every fact mentioned by the accomplice in the statement or about which the
accomplice testified. [¶] On the other hand, it is not enough if the supporting evidence
merely shows that a crime was committed or the circumstances of its commission. The
supporting evidence must tend to connect the defendant to the commission of the crime.
[¶] The evidence needed to support the testimony of one accomplice cannot be provided
by the testimony of another accomplice. Any testimony of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may not, however,
arbitrarily disregard it. You should give the testimony the weight you think it deserves
after examining it with care and caution in the light of all the other evidence.”
14
testimony occurred during an in limine hearing outside the jury’s presence. When Coletti
testified before the jury, he gave no testimony about Fernandez’s pretrial statements.
Consequently, there was no prosecution evidence other than Fernandez’s own testimony
before the jury of pretrial “statements” of Fernandez to which the corroboration
instruction applied. Since the corroboration instruction already applied to Fernandez’s
testimony, the trial court did not err in failing to include a reference to “statements” in the
10
instruction.
C. Instructions on False Statements and False Testimony
Defendant contends that the trial court violated his due process rights by
instructing the jury that it could infer that defendant was “aware of his guilt” if it found
that he knowingly made false or misleading statements or “tried to create false evidence
or obtain false testimony.” He does not contend that these standard pattern instructions
were legally incorrect. Defendant argues that they violated his rights because the court
did not also tell the jury that evidence that defendant had promptly turned himself in
when he learned that he was being sought by the police “support[ed] an inference of
innocence . . . .” Defendant argues that these instructions were erroneous because “[t]he
constitution requires instructional equality between the state and the defense.”
The court instructed the jury: “If the defendant made a false or misleading
statement before his trial relating to the charged crime knowing the statement was false or
tending to mislead that conduct may [show] he was aware of his guilt of the crime and
you may consider it in determining his guilt. [¶] If you conclude that the defendant made
10
We pointed out appellate counsel’s error to him and permitted him to submit
supplemental briefing on this point. He forthrightly admits his error but claims that the
instruction still was required to expressly reference “statements.” Since the jury could
not have misunderstood the need for corroboration of everything to which Fernandez
testified, the court’s failure to include “statements” in the instruction was not erroneous.
15
the statement, it’s up to you to decide its meaning and importance. However, evidence
that the defendant made such a statement cannot prove guilt by itself.” “If the defendant
tried to create false evidence or obtain false testimony that conduct may show that he was
aware of his guilt. If you conclude that the defendant made such an attempt, it is up to
you to decide its meaning and importance. However, evidence of such an attempt cannot
prove guilt by itself.” Defendant did not request any modifications to these instructions
nor did he request any additional instructions.
Defendant’s trial counsel objected to these instructions on the ground that they
were not warranted by the evidence and therefore would be “misleading to the jury,” but
he does not claim on appeal that these legally correct instructions were not supported by
the evidence. His appellate contention is solely that these instructions were not
“balanced” because they did not also instruct the jury on defense evidence that could
have supported a contrary inference.
Defendant may not pursue this contention on appeal because he failed to raise it
below. “A party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal. 3d 991,
1024, italics added.) Defendant does not claim on appeal that the instructions he now
challenges were legally incorrect or unresponsive to the evidence. His appellate
contention is that these instructions were incomplete because they failed to address
defense evidence that could have led to a contrary inference. Such a contention may not
be raised for the first time on appeal.
Defendant’s reliance on Cool v. United States (1972) 409 U.S. 100 (Cool) is
misplaced. In Cool, an accomplice testified in support of the defense. However, over the
objections of the defense, the trial court instructed the jury that it could consider the
testimony of the accomplice only if the jury determined that this testimony was true
beyond a reasonable doubt. (Cool, at pp. 100-102.) The United States Supreme Court
16
concluded that the instruction was unconstitutional because it “impermissibly
obstruct[ed]” the jury’s consideration of exculpatory evidence. (Cool, at p. 104.)
Unlike the instructions challenged by defendant, the instruction in Cool was not
“correct in the law and responsive to the evidence.” It was legally incorrect because
defense evidence need not surmount a beyond-a-reasonable-doubt proof barrier in order
to be considered by the jury. A legally incorrect instruction need not be challenged
below, but a legally correct instruction that is responsive to the evidence may not be
challenged on appeal on the ground that it is incomplete unless a request for modification
was made below. Defendant’s failure to do so bars consideration of his contention on
appeal.
Defendant’s claim that “unequal standards” were applied to the parties by the trial
court lacks any basis in the record. Since defendant did not request the instruction that he
now claims should have been given, the trial court had no opportunity to rule on its
propriety. It obviously did not reject such a request. Hence, there is no indication that
the trial court failed to act impartially as to the parties’ instructional requests.
D. Malice Instructions
Defendant claims that the trial court prejudicially erred in giving the jury an
improper definition of malice.
The jury was given an instruction identifying, first, the “crimes and allegations
requir[ing] general criminal intent,” which included “Shooting at an inhabited dwelling,”
and, second, those “requir[ing] a specific intent or mental state,” which included
“Murder” and “attempted murder.” This instruction told the jury that, as to the specific
intent crimes and allegations, “[f]or you to find a person guilty of these crimes or to find
the allegations true that person must not only intentionally commit the prohibited act, but
must do so with a specific intent or mental state. The act and the specific intent and
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mental state required are explained in the instruction for that crime or allegations.”
(Italics added.)
The murder instruction (CALCRIM No. 520) properly instructed the jury on the
malice element of murder. For each other offense, the court gave a separate instruction
on its elements. An element of the shooting at an inhabited dwelling count is that the
perpetrator “maliciously and willfully discharge a firearm . . . .” (§ 246, italics added.)
The shooting at an inhabited dwelling instruction included the following sentence in the
middle of the instruction: “Someone acts maliciously when he or she intentionally does a
wrongful act or when he or she acts with the intent to disturb, defraud, annoy or injure
someone else.” (Italics added.) Neither the oral nor the written instructions on the
murder offense were in close proximity to the instruction on the shooting at an inhabited
dwelling offense. The prosecutor’s argument to the jury regarding the murder count
confirmed that the “malice aforethought” element explained in the murder instruction
was the one that applied to the murder count.
Defendant claims that the trial court erred in failing to “specifically tell the jury
what malice definitions applied to what crimes.” No such failure occurred. The trial
court expressly instructed the jury, as to the murder count, that “the specific intent and
mental state required are explained in the instruction for that crime . . . .” This
instruction unambiguously told the jury where to find the applicable malice definition for
the murder count.
Defendant cites People v. Shade (1986) 185 Cal. App. 3d 711, People v. Chavez
(1951) 37 Cal. 2d 656 and People v. Price (1965) 63 Cal. 2d 370, but those cases are
inapposite. In those cases, the challenged definition of malice was erroneously given in
connection with a murder count rather than properly given in connection with some other
count. (Shade at p. 714 [only charge was murder]; Chavez at pp. 666-667 [murder
prosecution]; Price at p. 372 [murder, robbery and theft prosecution].) Furthermore, in
each of these three cases, the court concluded that the erroneous definition of malice was
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not prejudicial because the jury was also instructed on the correct definition of malice
aforethought. (Shade at pp. 714-715; Chavez at pp. 666-667; Price at p. 374.)
“[An] instruction ‘may not be judged in artificial isolation,’ but must be
considered in the context of the instructions as a whole and the trial record. [Citation.]
In addition, in reviewing [a potentially] ambiguous instruction such as the one at issue
here, we inquire ‘whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire
(1991) 502 U.S. 62, 72.) To the extent that there was any room for ambiguity in the
instructions, the trial court’s express direction to the jury to use the mental state definition
in the murder instruction eliminated any possibility that the jury would instead utilize the
challenged sentence in the shooting at an inhabited dwelling instruction. We find no
error.
E. Ineffective Assistance of Counsel
Defendant contends that his trial counsel was prejudicially deficient in failing to
request a limiting instruction telling the jury that “it could not also use [Fernandez’s]
guilty plea to infer [defendant’s] guilt of the same charged offenses.”
Defendant cites and relies on a host of cases involving nontestifying codefendants.
These cases concerned the absence of an opportunity for confrontation, which is not at
issue here as Fernandez testified at trial.
Defendant primarily relies on United States v. Halbert (9th Cir. 1981) 640 F.2d
1000 (Halbert). In Halbert, two codefendants pleaded guilty and testified against Halbert
at his conspiracy trial. (Halbert, at p. 1004.) Halbert challenged his conviction on the
ground that his codefendants’ guilty pleas should not have been disclosed to the jury.
(Ibid.) The Ninth Circuit Court of Appeals noted that a guilty plea was not admissible as
evidence of the defendant’s substantive guilt but was admissible on the issue of the
codefendant’s credibility. (Ibid.) While the admission of the evidence was therefore
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proper, the Ninth Circuit reversed because the trial court had failed to give a proper
limiting instruction. (Halbert, at p. 1006.) The district court had told the jury that the
“disposition of [the codefendants] . . . should not control or influence you in your verdict
with reference to the remaining defendant, Mr. Halbert. You must base your verdict as to
him solely on the evidence presented to you in this courtroom.” (Ibid.) The Ninth
Circuit found this instruction inadequate because it did not tell the jury “in unequivocal
language that the plea may not be considered as evidence of a defendant’s guilt” but
“only as evidence of [the codefendants’] credibility.” (Halbert, at pp. 1006-1007.)
In California, trial courts generally have no obligation to give sua sponte limiting
instructions. (People v. Hernandez (2004) 33 Cal. 4th 1040, 1051.) Halbert’s holding
that a sua sponte limiting instruction is required where evidence of a testifying
codefendant’s guilty plea is admitted into evidence does not apply here. As the
California Supreme Court observed in People v. Williams (2013) 56 Cal. 4th 630
(Williams), where the defense does not object to the admission of evidence of the guilty
plea but instead “incorporate[s]” it into the defense case, a trial court has no obligation to
give a limiting instruction. (Williams, at p. 668.) That was the case here. The defense at
trial was that Fernandez was the sole perpetrator of the November 2008 shooting, and the
defense argued that he was lying because he was guilty of these crimes and wished to cast
off some of the blame onto defendant.
Furthermore, the jury instructions explicitly informed the jury of the appropriate
limited use it could make of this evidence. The court told the jury: “If you find that a
witness has committed a crime or other misconduct you may consider that fact only in
evaluating the credibility of the witness’s testimony.” (Italics added.) In this context, we
must presume that the decision of defendant’s trial counsel, who was relying heavily on
Fernandez’s guilt to discredit his testimony, to decline to seek any further limiting
instruction was a sound strategy aimed at permitting the jury the broadest possible use of
Fernandez’s guilty plea against Fernandez. (Strickland, supra, 466 U.S. at p. 689) “A
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reasonable attorney may have tactically concluded that the risk of a limiting
instruction . . . outweighed the questionable benefits such instruction would provide.”
(People v. Maury (2003) 30 Cal. 4th 342, 394.) Defendant’s ineffective assistance claim
11
cannot succeed on appeal.
F. Disclosure Under Section 1054.7
The trial court held a series of in camera hearings concerning the prosecutor’s
requests for nondisclosure under section 1054.7. Statutorily required disclosures may be
“denied, restricted, or deferred” for “good cause.” (§ 1054.7.) “ ‘Good cause’ is limited
to threats or possible danger to the safety of a victim or witness, possible loss or
destruction of evidence, or possible compromise of other investigations by law
enforcement. [¶] Upon the request of any party, the court may permit a showing of good
cause for the denial or regulation of disclosures, or any portion of that showing, to be
made in camera.” (§ 1054.7.)
Defendant asks this court to review the records of these in camera hearings to
determine whether the trial court precluded disclosure of any information that would have
assisted the defense. We have reviewed the records of these in camera hearings. We find
that the trial court did not err in granting the prosecution’s requests and that the defense
was not deprived of any material and relevant information that would have assisted the
defense.
IV. Disposition
The judgment is affirmed.
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Defendant argues that the alleged errors were cumulatively prejudicial. As we
have not identified multiple errors, there is no prejudice to cumulate.
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_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Elia, Acting P. J.
_____________________________
Bamattre-Manoukian, J.
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