P. v. Glasgow CA2/4

Filed 5/14/13 P. v. Glasgow 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B236189
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA117358)
v.
CHRISTOPHER GLASGOW,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Affirmed as modifed, and remanded with instructions.
Richard D. Miggins, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, James William
Bilderback II, Joseph P. Lee, and Tita Nguyen, Deputy Attorneys General, for
Plaintiff and Respondent.
________________________________
INTRODUCTION
Christopher Glasgow appeals from a judgment following convictions for
first degree murder and possession of a firearm by a felon. He contends (1) that
there was insufficient evidence to support his convictions, (2) that the trial court
erred in admitting evidence of guns, ammunition, and narcotics that were not used
to commit the crimes, (3) that the court erred in instructing the jury on an
accomplice theory of liability, (4) that his confrontation rights were violated, and
(5) that he was entitled to two additional days of custody credit. We conclude
there was no error with respect to his convictions, but will remand with
instructions to correct the sentence.
STATEMENT OF THE CASE
On August 23, 2011, a jury found appellant guilty of first degree murder of
1
Michael Scott (Pen. Code, § 187, subd. (a)), and unlawful possession of a firearm
(§ 12021, subd. (a)). It also found true the allegation that the offenses were
committed for the benefit of, at the direction of, and in association with a criminal
street gang within the meaning of section 186.22, subdivision (b)(1)(C). The jury
found true that a principal personally and intentionally discharged a firearm
(§ 12022.53, subds. (b)-(e)(1)), but found not true the allegation that appellant
personally and intentionally discharged a firearm (§ 12022.53, subds. (b)-(d)). In a
bifurcated trial, the court found true the allegations that appellant suffered two
prior serious felony convictions within the meaning of section 667, subdivision
(a)(1), two prior prison terms within the meaning of section 667.5, subdivision (b),
and two “strikes” within the meaning of sections 1170.12, subdivisions (a) through
(d), and 667, subdivisions (b) and (i). The court sentenced appellant to state prison
1
All further statutory citations are to the Penal Code, unless otherwise
indicated.
2
for a total of 131 years to life, and assessed various fines and fees. The abstract of
judgment reflected that appellant earned 524 days of actual presentence custody
credit. Appellant timely appealed.
STATEMENT OF THE FACTS
On March 12, 2010, Michael “Mikey” Scott was murdered. At the time he
died, Mikey was 29 years old and a member of the Bounty Hunter Bloods gang.
Mikey had lived with his wife, Lanisha, at the Nickerson Gardens housing
complex for six years. Mikey‟s brother-in-law, Dante “Too Tall” Knox, also was a
Bounty Hunter. Too Tall lived in Nickerson Gardens, in unit 105, which was
known to be a “weed spot” where people regularly bought drugs. Lanisha
identified appellant as “Bhris,” a Bounty Hunter gang member who used to hang
out often with Mikey and Too Tall. She testified that appellant was involved with
drug sales at unit 105.
W.S., who was about 15 or 16 years old at the time of the murder, testified
he lived in Nickerson Gardens. He looked up to Mikey as his big brother and hung
out with him every day. On March 12, 2010, from about noon to 6:00 p.m., W.S.
and Mikey were helping W.S.‟s cousin, Naija Davis, move out of her apartment
(unit 88). After they were done, the two men stayed at unit 88 and smoked
marijuana. Shortly thereafter, they went across to unit 105, where they hung out
with Bobby “Bob-O” Ervin, Too Tall, and appellant. W.S. knew appellant as
“Bhris,” and knew that appellant lived with his girlfriend, Annetta Alvarez, at
another location.
After hanging out at unit 105, W.S., Mikey, and Bob-O went back to unit 88.
Appellant came by and whistled for Mikey to come out. In a prior police
interview, W.S. had told the officer that appellant was carrying a black nine-
millimeter handgun and “acting like Rambo.” W.S. also testified that a few days
3
before the murder, appellant was walking around unit 105 with a black gun, and
that appellant “always” carried a nine-millimeter handgun. After Mikey and
appellant talked outside, Mikey gave appellant some money and came back into
the apartment.
Later that night, Mikey asked W.S. to deliver some cash to Davis, at her new
apartment in another part of Nickerson Gardens. When he returned, W.S. testified
he saw Mikey in the kitchen using a razorblade to cut up rock cocaine on a bread
board. Mikey then told W.S. to leave. W.S. left for a party at another location. At
the time, Bob-O was still with Mikey in unit 88. W.S. testified that his mother
picked him up after the party ended, and they headed straight home. On the way,
they passed by unit 88, at around 11:00 or 11:45 p.m. W.S. saw that the unit‟s
back porch light and another light, the “high light,” were both on.
Roman Garcia lived in unit 106 in Nickerson Gardens. The apartment had a
rear entrance, which had a solid door and a screen door. On March 12, 2010,
Garcia was watching television in his living room, located next to the rear
entrance. The solid door was opened and the screen door closed. At around 10:00
p.m., Garcia heard three gunshots. Garcia ducked and waited about one minute.
He then got up and peeked through the screen door. About five to eight minutes
later, he saw a young Black male come out of unit 88, located about 43 feet across
from and to the right of his apartment. The individual walked calmly toward the
adjacent parking lot, entered a car, and was driven away. Garcia did not recognize
the individual.
About 10 to 15 minutes later, Garcia saw another Black male come out of
the same apartment. The individual was holding a black gun. As he walked
toward the parking lot, he tucked the gun into his clothes. When he passed the
parking lot, he ran away. At the preliminary hearing and at trial, Garcia identified
4
the second person as appellant. Garcia had seen appellant, Mikey, and Mikey‟s
brother hanging out together near Garcia‟s apartment on weekends. Garcia
admitted he previously told a police officer that he heard five gunshots, but
explained the inconsistency as resulting from his efforts to erase the incident from
his memory. He also acknowledged that at the preliminary hearing he had stated
that appellant exited about 20 minutes after the first man exited.
That same night, Lanisha got home from a party at around 11:00 p.m. She
called Mikey‟s cell phone repeatedly throughout the night, around 30 times, but
did not get a response. At around 2:00 a.m. the next morning, Lanisha called
Mikey‟s cousin, Tiffany. The two women went to the front door of unit 88,
because Lanisha knew that Mikey had helped Davis move out of unit 88 that
afternoon. The porch light of unit 88 was on, but there were no lights on inside the
unit. After no one answered their knocks, the two women went home. Lanisha
called Mikey‟s cell phone again, but got no answer. She finally went to sleep for a
few hours.
Around 6:00 a.m., Lanisha called Davis. She told Davis that Mikey had not
come home and asked her to let Lanisha into unit 88 to see if Mikey was there.
The two women then went to unit 88, where no one answered the front door. They
went to the back door, and found it unlocked but blocked. A homeless man helped
them push through the door. He looked inside and told the women, “It‟s somebody
behind here, bleeding real bad.” Lanisha peeked inside and saw Mikey‟s body.
Mikey was laying face down, holding some money in his hand. He had bullet
holes in his head; Lanisha saw “the meat sticking out” of his head. She began
screaming. Other people started coming to the apartment, and the police were
called. Lanisha testified that no one entered the apartment before the police
arrived.
5
Police Officer Scott Teubert, a member of the criminal gang homicide
division of the Los Angeles City Police Department (LAPD), met Lanisha when he
arrived at unit 88, around 7:00 or 7:30 a.m. Officer Teubert saw Mikey‟s body
lying in a pool of blood, with his feet blocking the door. Officer Teubert did a
search of the apartment. He saw three expended, brass colored, nine-millimeter RP
Luger shell casings with copper colored jackets and one live nine-millimeter RP
Luger hollow point bullet near the kitchen. He also saw a razorblade on the floor
just outside the kitchen. Inside the kitchen, Officer Teubert saw a cutting board
with a white substance resembling rock cocaine.
W.S. was awakened that morning by a neighbor who informed him and his
mother that “Mikey [is] in there [unit 88], dead.” W.S. got up and went to unit 88,
where he saw police officers. W.S. also saw appellant near unit 88. W.S. thought
appellant looked “strange” and was acting “weird.” Appellant was “just moving
too fast.” Appellant also followed W.S. for about half an hour. He asked W.S.
whether W.S. had heard “anything about him doing something to Mikey.” W.S.
said he had not. Appellant also asked W.S. if he was going to tell anyone who was
in the apartment with Mikey on the night of the murder.
Although the police were at the crime scene, Garcia did not speak to the
police about the shooting. He explained that people could not speak to law
enforcement officers in public at Nickerson Gardens because they would risk being
killed. A week later, after Too Tall asked Garcia to come forward, he and his sister
went to the police station, and spoke with LAPD Homicide Detective Gerardo
Pantoja about the shooting. Detective Pantoja and his partner, LAPD Detective
Mario Aguilar, had been assigned to investigate Mikey‟s murder.
At around the same time that Garcia was speaking with Detective Pantoja,
W.S. was confronted by appellant. W.S. was riding his bicycle in Nickerson
6
Gardens when appellant and Bob-O “rolled up” on him in a blue Ford Expedition.
Appellant was driving. He had a handgun on the left side of his waistband. The
handgun was different from the gun he was carrying on the day of Mikey‟s murder.
Appellant and Bob-O asked W.S. if he knew anything about Mikey being a snitch.
When W.S. said he did not, appellant said, “Yeah, he snitched.” Appellant also
asked W.S. if he had talked to anyone. When W.S. said he had not, appellant
responded, “Why are you telling the police I supposedly killed Mikey?” Appellant
then drove away. According to W.S., appellant did not hang around Nickerson
Gardens as much after Mikey‟s murder. W.S. contrasted this to Bob-O, who was
not “hiding his face.”
The autopsy of Mikey‟s body was conducted by Dr. Jeffrey Gutstadt, who
was unavailable for the trial. Los Angeles County Medical Examiner Dr. Eugene
Carpenter reviewed the records related to the autopsy. Dr. Carpenter opined that
Mikey died as a result of three gunshot wounds to the head.
On April 14, 2010, LAPD Officer Manuel Moreno was assigned to keep
watch on the home of appellant‟s girlfriend, Alvarez, because police officers were
planning to conduct a search of the house that day. At around 11:30 a.m., Officer
Moreno observed a blue Ford Expedition pull into the driveway of the house.
Appellant exited, unlocked the front door, and entered the house. Two other
individuals, later identified as Bob-O and appellant‟s sister, Lisa Glasgow, also
exited the vehicle and went into the house. Less than 10 minutes later, the three
reentered the vehicle. Lisa was driving, and shortly thereafter, she ran a red light.
Police officers decided to initiate a traffic stop of the vehicle, but Lisa would not
comply, and a car chase ensued.
The police followed the Expedition into Nickerson Gardens. Officer
Moreno had followed the progress of the chase, and he positioned his car on a
7
major street, just south of Nickerson Gardens. Within a few seconds of hearing
other officers broadcast that they were in foot pursuit, Officer Moreno saw
appellant running toward his location. As he ran, appellant took out a black semi-
automatic style handgun from his waistband and threw it up onto the roof of a one-
story building. The gun was recovered; it was a .40-caliber handgun loaded with
five .40-caliber rounds. After appellant was detained, Officer Moreno searched
him and recovered a set of keys.
That same day, LAPD Detective Erik Shear, who was assigned to the
southeast division gang impact team, and other police officers executed a search
warrant at the home of Alvarez. The officers entered the house using the set of
keys that Officer Moreno had recovered from appellant‟s person. Officers found
numerous items of evidence indicating that appellant lived at the address, including
his California driver‟s license, men‟s clothing, an auto repair receipt with his
signature, and a photograph of appellant and Alvarez.
Officers also found close to 180 grams of rock cocaine inside a gold purse,
located between shoe boxes in the bedroom closet. The rock cocaine was
packaged in multiple bags, most containing approximately a quarter ounce of rock
cocaine. Detective Shear opined that the amount of rock cocaine was not
indicative of possession for personal use. Officers also found a large plastic baggie
containing threes ounces of high-grade marijuana in the closet. No smoking
paraphernalia was found in the house. In addition, $1,885 in cash, a digital scale,
and empty baggies were also recovered.
In a dresser in the bedroom, the police found a fully loaded stainless steel
.357-caliber handgun, additional .357-caliber ammunition, and two nine-millimeter
RP Luger hollow point bullets with brass colored casings. A loaded SKS assault
8
rifle was found in the corner of the bedroom closet. None of the guns were
registered to Alvarez.
LAPD criminalist William Moore examined the various bullets recovered by
the police officers. He determined that all of the bullets recovered from the crime
scene were nine-millimeter RP Luger hollow point bullets, and were fired from the
same firearm. The two expended bullets recovered from Mikey‟s body were
consistent with nine-millimeter caliber hollow point bullets with copper alloy
jackets fired from the same firearm. Finally, the two live rounds recovered from
the dresser in Alvarez‟s house were nine-millimeter RP Luger hollow point bullets
with copper alloy jackets.
Los Angeles County Deputy Sheriff Armando Martinez testified as an expert
on cell phone data records and cell phone use. He explained that cell phones
communicate with other devices by using cell phone towers. The towers keep data
on cell phones that are used within their range. Accordingly, cell phone data
records can show the general location of a cell phone used to make or receive a
call, within a certain radius from the cell phone towers. Deputy Martinez reviewed
the cell data record for appellant‟s cell phone. He stated that on the night of the
murder and around the time of the murder, appellant‟s cell phone was used within
the general cell phone coverage area of Nickerson Gardens.
Los Angeles Police Officer Francis Coughlin testified as an expert on the
Bounty Hunter Bloods gang. He testified that the gang had between 800 and 1,000
active members. Within Nickerson Gardens, he estimated there were
approximately 600 to 700 Bounty Hunter gang members. Officer Coughlin
testified that the gang‟s primary activities included committing vandalism
(graffiti), robberies, rapes, shootings and killings, selling drugs and carrying guns.
He testified that the gang controlled drug dealing within Nickerson Gardens.
9
Someone who was not a Bounty Hunter gang member would not be allowed to sell
there. Officer Coughlin further testified that Bounty Hunters were notorious for
assaults and killing their own members. Officer Coughlin also testified that Mikey
had given him information about drugs and gangs for several years as a
confidential informant.
Officer Coughlin testified that appellant had previously admitted to him that
appellant was a Bounty Hunter gang member. In addition, appellant had many
gang tattoos, including a “five stars” tattoo, indicating he was a “general” within
the gang. Officer Coughlin explained that appellant had the moniker “Bhris”
because he substituted the “C” in his first name, Christopher, with a “B” for
“Blood.”
Addressing a hypothetical killing whose facts mirrored this case, Officer
Coughlin opined that the killing benefitted the Bounty Hunter Bloods gang as a
whole, and also benefitted the individual who committed the shooting. Officer
Coughlin explained that the killing would increase the community‟s fear of the
gang, and that the gang would benefit from community members‟ fear and
reluctance to report crimes committed by gang members. It also benefitted the
gang if the victim was a “snitch,” because it sent the message that “if you snitch,
[that] is the price you‟re going to pay.” The “status” of the individual who killed a
“snitch” is dramatically elevated within the gang, and the fact that the victim was a
snitch would make the gang look even more favorably upon the killer.
During the defense case, LAPD criminalist Ernest Park testified that he
tested swabs taken from the crime scene. Some of the swabs contained DNA that
matched Mikey‟s DNA profile, but Park could not testify that any of the swabs
contained DNA that matched the DNA profiles for W.S. or appellant. Frank Giles,
a fingerprint specialist with the LAPD, testified that prints lifted from a bottle and
10
a cup in unit 88 matched that of Mikey and of W.S., respectively. No other
fingerprints were identified as belonging to anyone else.
Demeterius Webster, Mikey‟s cousin, testified that he was present when
Mikey, appellant, and other gang members were at Too Tall‟s apartment on the
night of the murder. He came to the apartment around 6:30 p.m., and left about an
hour later. Webster testified that Too Tall had accused him of killing Mikey.
Webster, a former member of the Bounty Hunters, testified he never knew
appellant to be involved in selling drugs; nor did he know if Mikey was selling
drugs out of unit 88. Webster did not see appellant with a gun that night
Dr. Robert William Shomer testified as an expert on eyewitness
identification. He testified about the general unreliability of eyewitness
identification, including issues related to perception and bias. Given a hypothetical
based upon the identification of appellant by Garcia, Dr. Shomer opined that a
week‟s delay in identification greatly reduced the accuracy of the identification
because of “substantial memory decay.” He also opined that time estimates are
very subjective, and that looking through an obstruction like a screen door makes
an identification of someone more than 30 feet away extremely difficult.
DISCUSSION
Appellant contends (1) there was insufficient evidence to support his
conviction for first degree murder because Garcia‟s identification was unreliable;
(2) there was insufficient evidence to support the jury‟s finding that the object in
appellant‟s hand on the night of the murder was a real firearm, as opposed to a toy
gun; (3) the trial court erred in admitting evidence about weapons, ammunition,
and narcotics in appellant‟s possession because that evidence was irrelevant and
prejudicial; (4) the trial court erred by instructing the jury it could find appellant
guilty based on accomplice liability because the prosecution did not rely upon that
11
theory during the case; (5) the admission of Dr. Carpenter‟s testimony regarding
the autopsy performed by Dr. Gutstadt violated his constitutional right to
confrontation; and (6) the court erred in not awarding him the correct amount of
actual presentence custody credit.
A. Sufficiency of the Evidence
“In determining whether the evidence is sufficient to support a
conviction . . . , „the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.‟ [Citations.] Under
this standard, „an appellate court in a criminal case . . . does not ask itself whether
it believes that the evidence at the trial established guilt beyond a reasonable
doubt.‟ [Citation.] Rather, the reviewing court „must review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence -- that is, evidence which is reasonable, credible, and of solid
value -- such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.‟ [Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224,
italics omitted.) “In deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution
of conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.] Moreover, unless the testimony is physically impossible
or inherently improbable, testimony of a single witness is sufficient to support a
conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Appellant contends no substantial evidence supports the jury‟s finding that
he was involved in Mikey‟s murder. He contends there was no physical evidence,
such as DNA or fingerprints, linking him to the murder. He notes there was no
confession or percipient witness. Finally, he contends that Garcia‟s identification
12
was unreliable. He suggests that Garcia‟s testimony at trial was inconsistent with
his prior testimony. Dr. Shomer also opined that the circumstances of the
identification made it very unreliable. Finally, he contends that the lighting
conditions made it impossible for Garcia to accurately identify appellant.
The jury convicted appellant of murder, thus impliedly finding that appellant
was involved in Mikey‟s murder. As discussed, this court does not resolve
credibility issues. Rather, “[t]he testimony of a single witness is sufficient to
uphold a judgment even if it is contradicted by other evidence . . . . [Citations.]”
(In re Frederick G. (1979) 96 Cal.App.3d 353, 366, fn. omitted.) Here, Garcia
testified that he heard gunshots, and shortly thereafter, he identified appellant as
the second person who exited unit 88. This testimony was sufficient to sustain the
conviction. Appellant contends that the lighting conditions made it physically
impossible for Garcia to identify appellant, but Lanisha and W.S. testified that unit
88‟s porch light and the “high light” were both on. Thus, it was neither physically
impossible nor inherently improbable that Garcia, who had seen appellant before,
correctly identified him as the second man who exited unit 88. In addition,
Garcia‟s identification was supported by (1) appellant‟s cell phone data showing he
was in the general area of the crime scene, and (2) W.S.‟s testimony about
appellant‟s behavior after the murder, indicating that appellant demonstrated a
consciousness of guilt. Accordingly, there was substantial evidence to support
appellant‟s conviction for the murder of Mikey.
Appellant next contends there was insufficient evidence to sustain his
conviction for possession of a firearm on the night of the murder. He contends that
Garcia could not determine whether the black gun he was holding in his hand when
he exited unit 88 was a real gun or a toy gun. Because the gun was never
13
recovered, he contends no substantial evidence supports the jury‟s finding that he
unlawfully possessed a real firearm. We disagree.
In People v. Monjaras (2008) 164 Cal.App.4th 1432, the appellate court
reaffirmed that “[t]he fact that an object used [to commit a crime] was a „firearm‟
can be established by direct or circumstantial evidence.” (Id. at p. 1435.) In that
case, the defendant told the victim to give him money and pulled up his shirt to
show the handle of a black pistol stuck in his waistband. The appellate court found
this factual scenario was sufficient to support the jury‟s finding that the black pistol
in defendant‟s waistband was a real firearm. (Id. at pp. 1436-1438.) Here, Garcia
heard gunshots, and shortly thereafter, saw appellant holding a handgun.
Appellant then tucked the handgun away before he left the scene. Within hours,
the victim was found in the apartment, shot to death. This evidence was sufficient
to support the jury‟s finding that appellant possessed a real firearm the night of
March 12, 2010. Moreover, there is no evidence that appellant owned toy guns or
carried toy guns. W.S. testified that appellant always carried a nine-millimeter
handgun. In addition, on April 14, 2010, appellant had been in possession of a real
firearm, which he had thrown away during the foot pursuit. In short, there was
substantial evidence to support appellant‟s conviction for unlawful possession of a
firearm.
B. Admission of Allegedly Prejudicial Evidence
Appellant contends the trial court abused its discretion in admitting evidence
of other guns, ammunition, and narcotics that were not used to commit the charged
crimes, because that evidence was irrelevant and unduly prejudicial. Defense
counsel had raised the same objections during trial, arguing that the evidence was
more prejudicial than probative under Evidence Code section 352, and was
inadmissible character evidence under Evidence Code section 1101, subdivision
14
(b). After conducting an analysis under Evidence Code sections 352 and 1101,
subdivision (b), the court admitted the evidence over defense objections, but
instructed the jury that the evidence was admitted for the limited purpose of
motive.
We conclude the trial court did not abuse its discretion in admitting the
evidence of the guns, ammunition, and narcotics because that evidence was
relevant to show that appellant was a drug dealer and that he might have the motive
to kill someone who “snitched” about his drug-dealing operations. (See People v.
Daniels (1991) 52 Cal.3d 815, 856 [under Evid. Code, § 1101, subd. (b), a prior
offense may be used to show “motive, intent, preparation or identity”]; Ybarra v.
Illinois (1979) 444 U.S. 85, 106 [“In the narcotics business, „firearms are as much
“tools of the trade” as are most commonly recognized articles of narcotics
paraphernalia.‟ [Citation.]”].) In addition, two rounds of ammunition found at
Alvarez‟s home were of the same type as the ammunition used to kill Mikey -- a
fact relevant to whether appellant was involved in Mikey‟s murder.
Moreover, even had the trial court erred, we would find any error harmless
under People v. Watson (1956) 46 Cal.2d 818. Garcia positively identified
appellant as the second person who exited unit 88, shortly after he heard three
gunshots. Mikey was subsequently found in unit 88, dead from three gunshot
wounds to his head. On this record, it was not reasonably probable that a result
more favorable to defendant would have been reached, absent the admission of
evidence that appellant possessed other guns, ammunition, and narcotics. (Id. at
p. 837.)
C. Accomplice Instruction
Appellant contends the trial court erred in instructing the jury that appellant
could be found guilty of murder based on an aiding and abetting theory, as that
15
theory was never proffered by the State and there was no evidence to support it.
We discern no error.
It is well settled that in a criminal case the trial court has the duty to instruct,
sua sponte, on the general principles of law relevant to the issues raised by the
evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) “[T]he duty to
instruct applies regardless of the parties‟ requests or objections, . . . prevents the
„strategy, ignorance, or mistakes‟ of either party from presenting the jury with an
„unwarranted all-or-nothing choice,‟ encourages „a verdict . . . no harsher or more
lenient than the evidence merits‟ [citation], and thus protects the jury‟s „truth-
ascertainment function‟ [citation].” (Id. at p. 155.) Here, the trial court overruled
the defense objection and gave the accomplice instruction based on the evidence
presented during the trial. The court explained that Garcia saw two people come
out of unit 88, but there was no percipient witness to the actual shooting. Thus, it
was possible that the other individual was the shooter, and that appellant aided and
abetted him. Moreover, although it was not the main focus of the prosecutor‟s
case, during closing argument, the prosecutor told the jury that it could convict
appellant if the jury thought “„[appellant] gave the gun to the other guy, had the
guy shoot, took the gun back, and then walked out.‟” Thus, the accomplice
instruction was supported by the evidence at trial and was relied upon by the
prosecution. In short, there was no error.
D. Confrontation Clause Claim
Appellant contends that Dr. Carpenter‟s testimony about Mikey‟s cause of
death, based upon his review of the autopsy records, violated appellant‟s
constitutional right to confront and cross-examine the doctor who actually
performed the autopsy, Dr. Gutstadt. We conclude this argument has been
16
forfeited because no objection was made at trial. (People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1028, fn. 19.)
Even were we to find it not forfeited (and to address appellant‟s ineffective
assistance of counsel claim), we would reject the argument on the merits. In
People v. Dungo (2012) 55 Cal.4th 608, published after appellant filed his opening
brief, the California Supreme Court held there was no violation of a defendant‟s
confrontation rights where a forensic pathologist, who did not perform the autopsy
of the victim, reviewed the autopsy records and provided his own independent
opinion about the cause of the victim‟s death. (Id. at pp. 618, 621.) The same
factual scenario is present here. In light of People v. Dungo, appellant‟s claim of
error must be rejected. (Auto-Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)
E. Custody Credits
Finally, appellant contends he is entitled to 526 days of credit for
presentence custody. The People agree, and request that this court correct the
sentence. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) Accordingly, we
will modify the abstract of judgment to reflect that appellant earned 526 days of
actual presentence custody credit.
DISPOSITION
The abstract of judgment is modified to reflect that appellant earned 526
days of actual presentence custody credit. The judgment is affirmed in all other
respects. The superior court is directed to prepare an amended abstract of
judgment reflecting the additional days of custody credits, and to forward a copy of
17
the amended abstract of judgment to the California Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
18