Filed 3/12/13 P. v. Romero CA4/2

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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E054543

v.                                                                        (Super.Ct.No. FVI024187)

KIRK ALBERT ROMERO,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. John M.

Tomberlin, Judge. Affirmed.

         Catherine White, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
       A jury found defendant Kirk Albert Romero guilty of first-degree murder. (Pen.

Code, § 187, subd. (a).)1, 2 The trial court sentenced defendant to prison for an

indeterminate term of 25 years to life. Defendant raises six issues on appeal. First,

defendant contends the trial court erred by, in the last moments of trial, deciding to

instruct the jury on an aiding and abetting theory of guilt that was never discussed or

litigated. Second, defendant asserts the trial court erred by not instructing the jury on

the lesser included offense of involuntary manslaughter. (§ 192, subd. (b).) Third,

defendant contends the trial court erred by not instructing the jury that it could convict

defendant of second degree murder if it found defendant did not premeditate the murder

or lie in wait for the victim. Fourth, defendant asserts the trial court erred by admitting

testimony from a witness who had an agreement with the State. Fifth, defendant

contends the trial court erred by not instructing the jury that an accomplice‟s testimony

must be corroborated. Sixth, defendant asserts the trial court erred by not instructing the

jury on unanimity. We affirm the judgment.




       1   All subsequent statutory references will be to the Penal Code unless indicated.

       2 The jury found not true the allegations that defendant (1) personally used a
firearm during the commission of the felony (§ 12022.5. subd. (a)), and (2) personally
and intentionally discharged a firearm proximately causing the victim‟s death
(§ 12022.53, subd. (d)). We note the minute order reflects the jury found a gang
allegation to not be true (§ 186.22, subd. (b)(1)); however, this appears to be a
typographical error, as it does not appear any gang allegations were set forth in the
information.

                                             2
                    FACTUAL AND PROCEDURAL HISTORY

       A.     THE CRIME

       In April 2006, the victim, an adult male, lived in an apartment in Adelanto. Also

living in the apartment were (1) the victim‟s fiancée (Mother), (2) Mother‟s mother

(Grandmother), and (3) Mother‟s children. During April 2006, Mother was hospitalized

for kidney issues. The victim moved into the apartment with Mother‟s family in

approximately February 2006, and helped Grandmother take care of Mother‟s children.

Mother had a 13-year-old son named Adrian, a 15-year-old son named Fernando

(hereinafter “the brothers”), and two other sons.

       On April 22, 2006, at approximately 8:00 or 9:00 p.m., Adrian, Fernando, and

their cousin were walking through the apartment complex on their way to the brothers‟

apartment. The boys were stopped by a group of six or seven individuals, who were

having a party in a carport. Three of the individuals, who were young men, approached

the boys and asked where the boys were from. The boys stopped to hear what the

young men were saying. The young men spoke to Fernando about the Los Angeles

Dodgers hat he was wearing. The young men asked if Fernando was in a gang and why

he was wearing the Los Angeles hat. Fernando recognized one of the young men as a

resident of the apartment complex, Jose Villafana (Villafana). The boys did not

respond, and continued walking.

       One of the young men, Elias Arzate (Arzate), shoved Fernando. Fernando told

Arzate he had no reason to fight Arzate, and Fernando kept walking to his apartment.




                                            3
Defendant often spent time with Villafana in the apartment complex. Fernando could

not recall if defendant was at the carport party, but defendant‟s friends were at the party.

       When the boys arrived at the brothers‟ apartment, Adrian called Mother at the

hospital to tell her about the confrontation with the individuals in the carport. Mother

told Adrian to stay inside the apartment. The victim was at the hospital visiting Mother

when Adrian called. That night, when the victim arrived home from visiting Mother,

Adrian told the victim about the confrontation. The brothers stayed inside the apartment

for the rest of the night.

       At approximately noon the following day, April 23, the brothers were on their

patio, which is surrounded by a wooden fence. Fernando saw Arzate walk by, toward

Villafana‟s apartment. Villafana‟s apartment was approximately 10 to 15 feet away

from the brothers‟ apartment. Arzate “mad dogged” (confrontationally stared at) the

brothers, as Arzate walked through the apartment complex. Adrian told the victim

about Arzate staring at him and Fernando. The victim saw “the look” on the brothers‟

faces. The victim went to Villafana‟s apartment.

       The victim knocked on Villafana‟s apartment door, and spoke to Villafana and

Arzate. The victim told Villafana and Arzate that if they “have any kinds of problems

with [his] kids to go and talk to [the victim] about it.” Villafana and Arzate looked

down as though they were ashamed of their actions—an argument did not take place.

The victim returned to his apartment.

       The victim was a habitual smoker, who stepped outside the apartment

approximately every 30 minutes to smoke a cigarette. At approximately 10:30 p.m., the


                                             4
victim went outside the apartment to smoke a cigarette. Gunshots were fired. Fernando

called 911 and locked the front door. Grandmother yelled that she thought the victim

was shot. Adrian woke up, opened the front door, and saw the victim lying in front of

the door, face down in a “puddle of blood . . . with his eyes open.” Fernando saw the

victim and called 911 again to report the victim was shot.

       The brothers turned the victim face-up, and Adrian spoke to the victim, but the

victim did not respond. Approximately 30 seconds after being turned over, the victim

stopped breathing. The victim typically carried a flip-type handyman‟s knife in his

pocket. Adrian did not see the knife on the ground next to the victim; Adrian believed

the knife was still in the victim‟s pocket.

       B.     THE INVESTIGATION

       Sheriff‟s Detective Myler investigated the victim‟s death. When Myler arrived at

the apartment complex on April 23 he saw the victim was deceased. Myler noticed two

gunshot wounds on the front of the victim‟s left shoulder, one of which was near the

victim‟s neck, and a third gunshot wound on the victim‟s right lower back area. The

victim died as a result of the gunshot wounds.

       Myler spoke to people in the neighborhood. As a result of those interviews,

Myler identified Villafana and Villafana‟s friends as possible suspects. Also as a result

of the interviews, Myler checked the fence line on the northern end of the apartment

complex to determine if anyone had jumped over it. Myler found dirt on top of the

chain-link fence railing in three different locations, not far from one another.




                                              5
        Sheriff‟s Detective Mahoney also investigated the victim‟s death. Mahoney

spoke to Grandmother and the brothers. After speaking with the family, Mahoney

identified Villafana and Arzate as suspects. Villafana was not at his apartment when

Mahoney went to speak to him that night. Mahoney began investigating a third possible

suspect after speaking to more people; the third suspect was defendant.

        The detectives decided to take a break and reconvene later in the day. As four of

the law enforcement officers were driving their separate cars in a caravan, Mahoney saw

three people walking through a field. The people matched the descriptions of the three

suspects: (1) defendant, with a clean-shaven head, Hispanic, and with a somewhat large

stature; and (2) Villafana and Arzate who were Hispanic, “smaller,” and “skinny.”

Mahoney used his telephone to call Sheriff‟s Detective Shenton to assist him in

contacting the people in the field.

        Mahoney and Shenton stopped their cars in the field, near the three suspects, who

were Villafana, Arzate, and defendant. Shenton asked Villafana and Arzate to come

over to his vehicle. Mahoney asked defendant to come to his vehicle. The three men

“nonchalantly approached” the detectives. Defendant allowed Mahoney to pat him

down. Mahoney did not find any weapons. Defendant told Mahoney his name, which

matched the first name of the suspect Mahoney was looking for—Mahoney did not have

the suspect‟s last name. Mahoney had never known a Hispanic person by the name of

Kirk, so he was surprised when defendant said his name was the same as the suspect‟s

name.




                                            6
       Mahoney stepped away from defendant, in order to call Sergeant Bolt (Bolt).

Mahoney told Bolt, “[W]e found them. You need to turn around.” Bolt had continued

on in the caravan when Mahoney and Shenton stopped in the field. Defendant

overheard Mahoney and began running away. Mahoney chased after defendant.

Defendant ran to his residence. Defendant‟s girlfriend (Rincon), was standing outside

the residence, behind a chain-link fence. Rincon yelled at defendant to stop running.

       Defendant ran into his yard, circled the house twice, gave Rincon a kiss, and then

jumped over a block wall into an apartment complex. Mahoney instructed defendant to

stop running, and followed defendant into the apartment complex. Defendant jumped

over a fence into another apartment complex. Mahoney jumped over the fence as well.

Mahoney saw defendant enter an apartment. Mahoney called Bolt, who used his radio

to direct other deputies.

       Uniformed deputies with shotguns entered the apartment. Defendant was

handcuffed and escorted out of the apartment. Two other people were inside the

apartment; the people inside the apartment were related to Rincon. Defendant was

transported to the Adelanto substation to be interviewed. Mahoney went back to

defendant‟s residence to interview Rincon. Rincon agreed to assist Mahoney with

looking for a weapon. Rincon walked into the backyard, and Mahoney followed her.

Rincon stopped next to one of the ventilation grates on the exterior of the house (the

grates are located every 10 feet along the floor area of the house). Rincon pushed her

hand through the screen mesh, and the mesh fell back. Rincon pointed Mahoney toward




                                            7
the area where the mesh fell away. A deputy reached through and pulled out a .357

Magnum revolver wrapped in a shirt.

       Mahoney spoke to Rincon‟s brother (Jose). Jose told Mahoney that late at night

on April 22, he saw Villafana holding a revolver. Villafana was in a car stopped along

the road, and a another person, whom Jose did not recognize, was also in the car. Jose

described the gun, and the description was consistent with the .357 Magnum found at

defendant‟s residence. Jose assumed Villafana and the second person “were up to no

good.” Mahoney returned to the station to interview defendant, Arzate, and Villafana.

       C.     ARZATE‟S TESTIMONY

       Arzate testified at defendant‟s trial. Arzate was wearing an orange jumpsuit and

was in the custody of San Bernardino County due to murder charges related to the

victim. Arzate entered into an agreement with the prosecutor. The agreement

contemplated Arzate‟s truthful testimony against defendant in exchange for entering a

plea to manslaughter (§ 192) and a gang enhancement (§ 186.22, subd. (b)(1)). Arzate

would receive a prison sentence of 16 years, which could be served outside of

California. The trial court stated it did not believe anyone had the authority to promise

a prison sentence could be served outside of California. Arzate‟s plea deal was not

solidified prior to his testimony. Thus, if Arzate‟s testimony were not truthful, the

prosecutor could renege on the deal. Arzate expressed concern that his testimony

against defendant would lead to him being stabbed in prison and/or Arzate‟s sister being

harmed.




                                             8
      Arzate met defendant in February 2006 through Villafana. Arzate supplied

methamphetamines to defendant, for defendant to sell. Arzate visited defendant‟s house

on a weekly basis, but they were not friends. Arzate met Villafana in school in 1998 or

1999, and they were friends. Arzate is a member of the 41st Street gang in South

Central Los Angeles. Defendant is a member of the Seventh Street West Side Verdugo

gang. Defendant‟s gang nickname is Little Joker. Villafana was possibly a member of

the Westside Wilmington gang.

      Arzate denied shooting a gun in April 2006. On April 23, 2006, Arzate and

Villafana went to Palm Springs during the day. The two returned to Villafana‟s

apartment at approximately 7:00 p.m. When Arzate went outside to get something out

of the car, a teenager was “mad dogging” Arzate. Arzate stared back at the teenager and

then reentered Villafana‟s apartment. A few minutes later, the victim knocked on

Villafana‟s apartment door.

      Arzate thought the victim was “kind of aggressive” and noticed the knife on the

victim‟s belt. The victim asked Arzate if he had a problem with the victim‟s “nephew.”

Before Arzate could answer, the victim asked Villafana if he had a problem with the

victim‟s nephew. Arzate felt disrespected by the victim, because the victim did not give

Arzate an opportunity to answer, before questioning Villafana. Arzate asked the victim

if the victim‟s nephew had a problem with them. The victim said, “no.” Arzate

responded, “[T]here‟s your answer,” and then closed the door. Villafana asked what

had happened earlier to cause the victim to come to Villafana‟s apartment. Arzate said

a teenager outside the victim‟s apartment was looking at Arzate, so he “looked at him


                                           9
back.” Villafana and Arzate stayed at Villafana‟s apartment for one or two hours, and

then went to defendant‟s house to give him drugs.

       Upon arriving at defendant‟s house, Arzate, Villafana, and defendant smoked

methamphetamines. The three men discussed the incident with the teenager staring at

Arzate and the victim coming to Villafana‟s house. Arzate told defendant he felt as

though the victim was disrespecting him. Defendant “[p]ulled out a gun” from his

waistband. Defendant said, “I‟ll smoke that fool.” Arzate said the victim “didn‟t

deserve that.” Arzate said he would rather fight the victim, because the victim asked

Villafana a question without giving Arzate an opportunity to respond to the previous

question. Villafana told the two men to “leave it alone,” but also agreed to “jump” the

victim. Defendant said he wanted to kill the victim. Arzate later learned defendant had

prior problems with the victim.

       Arzate became upset because defendant wanted to kill the victim, so Arzate

walked outside. After 30 minutes, Arzate went back inside the house. Defendant asked

Arzate what he wanted to do, and Arzate said he wanted to fight the victim. Defendant

said he would put the gun away. The men continued to smoke, and then went to the

victim‟s apartment complex, in order for Arzate to fight the victim.

       Villafana and defendant knew the victim went outside every night at 10:00 p.m.

to smoke a cigarette. The three men planned to wait for the victim to exit his apartment

to smoke a cigarette. Arzate and Villafana would wait across the street while defendant

would wait in the carport area. Defendant would initiate the fight by rushing at the

victim. Defendant had a black bandana around his neck and gloves on his hands.


                                           10
Defendant asked Arzate to unscrew three light bulbs in the carport area, and Arzate

complied. Villafana stayed hidden across the street.

       Arzate began walking back toward Villafana, across the street. While walking,

Arzate saw the victim and pointed defendant to where the victim was standing. Arzate

saw defendant lift his shirt and pull “something” out. Arzate heard the victim say,

“[N]o,” and then heard a gunshot. After the first gunshot, Arzate ducked down and

thought, “[W]hat the fuck[?]” Arzate stood up, saw the gun in defendant‟s hand, saw

the flare from the gun being shot, heard three more gunshots, and told Villafana they

should run. The two men began running and jumped over a fence. Defendant caught up

to the men, and ran with them.

       The men ran to Arzate‟s apartment. Defendant removed the bandana, gloves,

and his shirt. Arzate put the clothes in a bag and gave the bag to a woman at his

apartment. The woman took the bag. The three men then drove around Adelanto “for a

little bit.” Arzate asked defendant why he killed the victim. Defendant responded that

“he wanted [the victim] dead.” Villafana was quiet. Arzate told defendant that if

Arzate were arrested, then defendant should “stand up for what he did.” Arzate was

upset with defendant. Defendant told Arzate, “[D]on‟t trip: That [I] got it.” Defendant

told Villafana he should have seen the face the victim made prior to dying. Villafana

remained quiet. Arzate continued pushing defendant to take responsibility for the

offense if the men were arrested. Defendant pulled out the gun and said, “[I] gots (sic)

it,” and not to worry.




                                           11
       The three men returned to defendant‟s house. Defendant gave Villafana the gun

and told Villafana to empty the gun and clean it. Defendant went upstairs with Rincon.

Villafana and Arzate spent the night at defendant‟s house. Villafana returned the gun to

defendant. The following day (April 24) at approximately 11:00 a.m., the three men

walked to the store to purchase diapers for defendant and Rincon‟s newborn son, and

were arrested during the walk.

       Mahoney interviewed Arzate. Arzate was not truthful with the detective during

the interview. Arzate told Mahoney he had argued with gang members from La Puente

earlier in the day and was at the apartment complex to retaliate against the gang

members. Arzate explained he was at the complex during the shooting, but only

because he was looking for the gang members. Arzate then changed his story and

claimed he was not present at the complex during the shooting, but defendant told him

about the killing.

       Eventually, Arzate changed his story and admitted being at the apartment

complex to confront the victim. Arzate told Mahoney about the victim coming to

Villafana‟s apartment door to talk to them. Arzate identified defendant as the person

who killed the victim. Arzate told Mahoney about the bag of clothing and instructed the

woman at the apartment to give the bag to the detective.

       Arzate was taken into custody in 2006, and remained in custody through

defendant‟s trial in May 2011. After defendant spoke to Mahoney about what happened

on the night of the shooting, Arzate suffered fights in jail. Over the years, Arzate has

continued to suffer fights in jail due to making a statement to Mahoney. In March 2011,


                                            12
Arzate made the decision to testify against defendant. Arzate made the decision

because his cellmate informed him that a note sent through inmates reflected Arzate was

supposed to be stabbed. Deputies found the note about Arzate being stabbed and moved

Arzate to the administrative segregation unit.

       It appeared to Deputy Jarish that the note was sent by someone with the

identifying information of “Joker, WSV, Seventh Street.” Defendant is a member of the

Seventh Street West Side Verdugo gang. Defendant‟s gang nickname is Little Joker.

Deputy Jarish identified defendant as a possible sender of the note.

       On April 6, 2011, a few weeks prior to defendant‟s trial, defendant and Arzate

were in a courthouse hallway. Defendant told Arzate he saw a video recording of

Arzate informing law enforcement about the victim‟s murder. Defendant told Arzate

“to do right and don‟t forget that [defendant] knows where [Arzate‟s] sister lives.”

Arzate believed defendant was instructing him to not testify. Arzate decided to testify

despite the implicit threat because he was tired of fighting. Arzate admitted it was in his

best interests to state that the version of the events he testified to on the stand was the

truth. Arzate had a teardrop tattoo on his face, which could refer to murdering a person;

however, Arzate got the tattoo in 2004 in honor of his Mother‟s death.

       D.     RINCON‟S TESTIMONY

       Rincon testified at defendant‟s trial. Rincon stated Arzate and Villafana came

over to defendant‟s house on the night of the shooting—April 23. Rincon fell asleep

around 11:00 p.m., while defendant, Arzate, and Villafana were still at the house.

However, when Rincon spoke to Mahoney, she told the detective that defendant, Arzate,


                                             13
and Villafana left the house around 9:30 p.m. and they were gone for two to three

hours—returning around midnight or 12:30 a.m.

       At trial, Rincon testified that the day after the shooting, when deputies arrived at

the house, they asked Rincon to look in the yard for the gun. A deputy pointed Rincon

to the vent along the house‟s floorboard and asked her to check it for a weapon. The

deputy instructed Rincon to push through the screen mesh, and she complied. Mahoney

testified that no one pointed Rincon to the vent, she walked directly to the vent of her

own volition.

       E.       DNA EVIDENCE

       A San Bernardino County criminalist conducted DNA tests on (1) a fired bullet,

(2) a glove, (3) a second glove, (4) the rough portion of a revolver grip, (5) the smooth

portion of a revolver grip, and (6) the trigger of a revolver. The criminalist had DNA

samples from the victim, defendant, Villafana, and Arzate. DNA from the fired bullet

matched the victim; the bullet was recovered from the victim‟s body. The first glove

contained DNA from four different people—three men and one woman. Defendant was

“included as being a possible source of a major component in that mixture.” The

second glove contained DNA from two people—a major donor and a trace donor. The

DNA test revealed defendant was “a possible source of the major component in the

mixture.”

       DNA from the rough portion of the revolver grip revealed a mixture of four

people‟s DNA. Defendant was determined to be “a possible major contributor to [the]

mixture.” The victim, Arzate, and Villafana were excluded as being major contributors.


                                            14
DNA from the smooth portion of the revolver grip reflected two people‟s DNA, and one

of the profiles was consistent with defendant‟s DNA profile. Villafana and Arzate were

considered to be possible minor contributors to the DNA mixture. Defendant was

identified as being a possible major contributor to the three-person DNA mixture found

on the revolver‟s trigger. The victim and Villafana were excluded as being possible

contributors; Arzate was identified as a possible minor contributor.

       F.     FIREARM EVIDENCE

       A fired bullet found in the street near the victim‟s apartment complex also

matched the gun located under defendant‟s house. No fingerprints were found on the

revolver located under defendant‟s house. The gloves Arzate gave to the detectives

tested positive for gunshot residue.

       G.     BUS RIDE

       On January 15, 2010, Deputy Godoy was assisting with transporting defendant

and other inmates, by bus, from the courthouse to the jail. Godoy was a passenger on

the bus. Defendant was seated behind Godoy, to Godoy‟s left, approximately three feet

away. During the drive, defendant was speaking to a female inmate, Maribel Lopez,

who was approximately two feet away from defendant. Defendant introduced himself

to Maribel as “Joker.” The two began discussing their cases. Maribel was Arzate‟s

girlfriend. Godoy heard defendant say to Maribel, “I‟m the shooter.”

       H.     DEFENDANT‟S TESTIMONY

       Defendant testified at trial. Defendant explained that when he was speaking to

Maribel on the bus, he said to her, “the authori[ti]es were saying that I was the shooter.”


                                            15
Defendant did not tell Maribel he was, in fact, the shooter; rather, he was describing the

State‟s allegations against him.

                                      DISCUSSION

       A.     AIDING AND ABETTING INSTRUCTION

              1.     PROCEDURAL HISTORY

       Prior to trial, defendant moved to have the prosecutor disclose the theory of guilt

he planned to argue at trial concerning the murder charge. During a hearing on the

motion, the prosecutor said, “People will announce and state that it‟s the theory of

willful, deliberate, and premeditated murder.” Defense counsel asked, “We‟re not

proceeding on aiding and abetting or any other theory other than he‟s the perpetrator[?]”

The prosecutor said, “That‟s correct.”

       On the record, the trial court stated it planned to discuss jury instructions with the

trial attorneys. Defendant waived his presence, and then “proceedings were held off the

record.” The following day, the trial court said, “Now, we have discussed jury

instructions at length.” The trial court remarked that the discussion took place “[o]ff the

record.” The trial court then asked defense counsel to discuss three specific instructions

to which counsel had objected.

       The first instruction concerned defendant‟s testimony. The second instruction

related to defendant fleeing after the crime was committed or after being accused of the

crime. The third instruction appears to concern the instruction regarding the People‟s

duty to disclose evidence and their failure to disclose a particular exhibit within the




                                             16
legal timeframe. After discussing the three instructions, the following exchange took

place:

         “The Court: [Defense counsel], is there an instruction that you think I should not

give that I‟ve indicated that I‟m going to give?”

         “[Defense counsel]: No.

         “The Court: Is there an instruction that I‟m giving that you object to, other than

what‟s been instructed[3]?

         “[Defense counsel]: No.

         “The Court: [Prosecutor], is there an instruction that he‟s requested that I‟ve

refused?

         “[Prosecutor]: No, your Honor.

         “The Court: Is there an instruction that I have indicated that I will not give

additionally? Excuse me. That you had requested that I refused?

         “[Defense counsel]: No, it was shot down.

         “The Court: Is there an instruction that you think I should not be giving, that I

am giving?

         “[Prosecutor]: No, your Honor.

         “The Court: All right. Then, are you ready to argue?

         “[Prosecutor]: Yes.

         “The Court: Bring the jury in.”



         3   We infer the word “instructed” should be replaced with the word “discussed.”

                                              17
       During closing argument, the prosecutor argued defendant was the shooter who

killed the victim—the direct perpetrator of the victim‟s murder. Defense counsel

argued the prosecutor did not prove beyond “anything” beyond a reasonable doubt.

When instructing the jury, the trial court gave an instruction on aiding and abetting.

(CALCRIM No. 401.) The trial court informed the jury it could find defendant guilty of

murder on a theory of aiding and abetting. No objections were raised when the trial

court read the aiding and abetting instruction. The jury found defendant guilty of first

degree murder (§ 187, subd. (a)), but it found not true the allegations that defendant

(1) personally used a firearm during the murder (§ 12022.5, subd. (a)), and

(2) personally discharged a firearm causing the victim‟s death (§ 12022.53, subd. (d)). 4




       4  While it is unclear why the jury returned untrue findings for the two
enhancements, one possibility is that the jury did not believe defendant was the direct
perpetrator of the victim‟s death; a second possibility is that the jury feared the resulting
prison sentence was too great—during Arzate‟s testimony, the prison sentence for the
enhancements was discussed. During Arzate‟s testimony, the following exchange took
place:
       “[Prosecutor]: So if you there‟s [sic] a first degree murder and a firearm, you
could get an additional 25 to life if you turned out to be the shooter and they proved it;
right?
       “[Arzate]: Right.
       “[Prosecutor]: So you could be looking at, just off that, 50 to life. You‟re not
getting that; are you?
       “[Arzate]: Yeah.
       “[Prosecutor]: You are getting that?
       “[Arzate]: No, I‟m not getting that.
       “[Prosecutor]: And you admitted a gang allegation here. First degree murder,
firearm, and a gang allegation is 75 to life; isn‟t it?
       “[Arzate]: Yeah.”

                                             18
              2.      ANALYSIS

       Defendant asserts the trial court‟s act of instructing the jury on the law of aiding

and abetting violated his right to due process because (1) the prosecutor did not pursue a

theory of guilt based on aiding and abetting, and (2) he was denied effective assistance

of counsel. We disagree.

       We begin with the assertion that the trial court erred by instructing the jury on a

theory of guilt not presented by the prosecutor. The People assert defendant forfeited

this argument by not objecting to the aiding and abetting instruction at the trial court.

“Generally, a party forfeits any challenge to a jury instruction that was correct in law

and responsive to the evidence if the party fails to object in the trial court. [Citations.]

The rule of forfeiture does not apply, however, if the instruction was an incorrect

statement of the law [citation], or if the instructional error affected the defendant‟s

substantial rights. [Citations.] „“Ascertaining whether [the] claimed instructional error

affected the substantial rights of the defendant necessarily requires an examination of

the merits of the claim—at least to the extent of ascertaining whether the asserted error

would result in prejudice if error it was.” [Citation.]‟ [Citation.]” (People v. Franco

(2009) 180 Cal.App.4th 713, 719.) As we will discuss, the instruction did not affect

defendant‟s substantial rights. Therefore, defendant forfeited the claim of error on

appeal.

       We review the alleged instructional-due process error de novo. (People v. Burch

(2007) 148 Cal.App.4th 862, 870 (Burch).) “„[A] court is not precluded from giving

any instruction for which there is evidentiary support. The fact that a party did not


                                             19
pursue a particular theory does not preclude the trial judge from giving an instruction on

that theory where it deems such an instruction to be appropriate.‟ [Citation.]” (People

v. Ardoin (2011) 196 Cal.App.4th 102, 128.)

       In the instant case there was evidence of three people participating in the victim‟s

murder, e.g. the three dirt marks on the fence railing and Arzate‟s testimony. Arzate

testified that defendant was the shooter; however, it was never exactly clear why

defendant would want to shoot the victim—the only explanation was some prior

unknown problem(s) between the two.

       The primary evidence proving defendant was the shooter, as opposed to

Villafana or Arzate being the shooter, was Arzate‟s testimony. Since Arzate is

defendant‟s codefendant, Arzate‟s testimony against defendant required corroboration.

(§ 1111.) The trial court could reasonably conclude that there was not a great deal of

direct evidence corroborating the theory that defendant was the shooter; there was the

gun at defendant‟s house and the overheard statement on the bus ride, but the vent

where the gun was found was accessible from outside the house and defendant said only

a portion of his statement was overheard. Thus, the trial court could reasonably

conclude that the jury would find defendant was a participant in the murder, but not the

shooter, because Arzate‟s testimony about defendant being the shooter was corroborated

by some evidence, but not overwhelming evidence, and it is unclear exactly why

defendant would have killed the victim, as opposed to Villafana or Arzate. In other

words, the evidence supports a conclusion that defendant was a participant in the crime,




                                            20
but not the direct perpetrator. As a result, the trial court properly instructed the jury

with the aiding and abetting instruction.

       Moreover, defendant was not convicted of a separate crime of aiding and

abetting. Rather, defendant was convicted only of murder. (See People v. Prettyman

(1996) 14 Cal.4th 248, 259-260 [describing liability for aiding and abetting].) Thus, the

aiding and abetting instruction did not place defendant in the position of having to

defend against a previously uncharged crime, rather, aiding and abetting is a theory of

the crime of which defendant had been arguing against all along. (See People v. Ardoin,

supra, 196 Cal.App.4th at pp. 125-126 [discussing there not being a due process

violation because felony murder is not a separate offense from premeditated murder].)

In sum, we are not persuaded defendant‟s due process rights were violated by the trial

court‟s act of instructing the jury on the law of aiding and abetting.

       Next, we examine defendant‟s ineffective assistance of counsel contention.

Defendant asserts the trial court denied him effective assistance of counsel by

instructing the jury on a theory that defense counsel did not have an opportunity to

defend against, i.e. aiding and abetting. Defendant contends his trial counsel made

tactical decisions with the mindset that the only relevant theory was that defendant was

the direct perpetrator of the victim‟s death, and therefore, the trial court‟s act of

presenting an aiding and abetting option to the jury denied defendant effective

assistance of counsel.

       Defendant‟s trial counsel argued defendant was not present during the shooting

at all, and that the third person involved in the murder could have been Villafana‟s


                                              21
brother. Defendant‟s counsel pursued the theory that defendant was not in any way

connected to the victim‟s murder because the prosecution failed to prove “anything”

beyond a reasonable doubt. Defendant has not explained how he would have presented

a different defense if he had received more explicit notice of the aiding and abetting

theory prior to trial. Thus, it is unclear how the trial court denied defendant‟s counsel

the opportunity to defend against the aiding and abetting theory as asserted by

defendant. It is also unclear how defendant suffered prejudice as a result of the alleged

denial of effective counsel. (See People v. Mesa (2006) 144 Cal.App.4th 1000, 1008

[prejudice is a requirement of an ineffective assistance of counsel claim].)

       In sum, since defendant has not demonstrated a due process violation or a denial

of effective assistance of counsel, we conclude defendant forfeited his instructional

contention because he has not demonstrated that the instructional issue affected his

substantial rights. Defendant did not object to the trial court‟s aiding and abetting

instruction, nor did he request to reopen his case. Defendant‟s failure to bring this

alleged problem to the trial court‟s attention forecloses his ability to effectively raise the

issue on appeal.

       B.     INVOLUNTARY MANSLAUGHTER

       Defendant contends the trial court erred by not instructing the jury on the lesser

included offense of involuntary manslaughter. (§ 192, subd. (b).) We disagree.

       As set forth ante, we review alleged instructional errors de novo. (Burch, supra,

148 Cal.App.4th at p. 870.) “Involuntary manslaughter is a lesser offense of murder,

distinguished by its mens rea. [Citation.] The mens rea for murder is specific intent to


                                             22
kill or conscious disregard for life. [Citation.] Absent these states of mind, the

defendant may incur homicide culpability for involuntary manslaughter. [Citations.]

Through statutory definition and judicial development, there are three types of acts that

can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or

a non[-]inherently dangerous felony. [Citation.] . . . [F]or all three types of predicate

acts the required mens rea is criminal negligence.” (People v. Butler (2010) 187

Cal.App.4th 998, 1006.)

       Defendant asserts the trial court should have instructed the jury on the lesser

included offense of manslaughter because the evidence reflects the possibility that

defendant went to the victim‟s apartment complex only to assault the victim, but either

Arzate or Villafana “suddenly and without warning escalated the assault into shooting”

the victim.

       For the sake of judicial efficiency we will accept as true defendant‟s premise that

the trial court should have instructed the jury on the lesser included offense of

involuntary manslaughter. (See People v. Breverman (1998) 19 Cal.4th 142, 154 [trial

court has sua sponte duty to instruct “on lesser included offenses when the evidence

raises a question as to whether all of the elements of the charged offense were

present.”].) Accepting this premise as true, we move to a discussion of prejudice.

       The failure to instruct a jury on a lesser included offense is not reversible error

“unless an examination of the entire record establishes a reasonable probability that the

error affected the outcome. [Citations.]” (People v. Breverman, supra, 19 Cal.4th at p.

165.) The jury was instructed on first degree murder and second degree murder. The


                                             23
jury found defendant guilty of first degree murder. Specifically, the jury found (1) the

murder was premeditated, or (2) the murder was committed by lying in wait. The jury

rejected the theory of second degree murder. Lying in wait and/or willful, deliberate,

and premeditated murder are inconsistent with the mens rea of criminal negligence

required for involuntary manslaughter. Given that the jury found defendant acted with

the specific intent to kill, and rejected the lesser option of second degree murder, we

conclude the record does not establish a reasonable probability that the alleged

involuntary manslaughter error affected the outcome of defendant‟s trial.

       C.     SECOND DEGREE MURDER

       Defendant contends the trial court erred by not instructing the jury on the

elements of second degree murder. We disagree.

       We review instructional errors de novo. (Burch, supra, 148 Cal.App.4th at p.

870.) “Murder may be of the first or second degree. While both require malice

aforethought, first degree murder requires willful, deliberate premeditation” or lying in

wait. (In re C.R. (2008) 168 Cal.App.4th 1387, 1393; § 189.)

       The trial court gave the jury the following instructions: “Homicide is the killing

of one human being by another. Murder is a type of homicide. The defendant is

charged with murder.” (CALCRIM No. 500.) “The defendant is charged in Count 1

with Murder in violation of Penal Code section 187. To prove that the defendant is

guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act

that caused the death of another person; [¶] AND [¶] 2. When the defendant acted, he

had a state of mind call malice aforethought.” (CALCRIM No. 520, italics added.) The


                                            24
trial court went on to explain the difference between express and implied malice. After

giving this information to the jury, the trial court stated that if the jury found defendant

guilty of murder, then it would need to determine the degree of the offense.

(CALCRIM No. 520.)

       As the court continued, it explained the requirements for first degree murder.

The court explained the prosecutor was relying on theories of (1) willful, deliberate, and

premeditated murder, and (2) lying in wait. (CALCRIM No. 521.) The court explained

the legal requirements for both theories. The court then said, “The People have the

burden of proving beyond a reasonable doubt that the killing was first degree murder

rather than a lesser crime. If the People have not met this burden, you must find the

defendant not guilty of first degree murder.” (CALCRIM No. 521, italics added.)

       The trial court continued instructing the jury, explaining how the jury should

approach the Count 1 verdict forms. The trial court explained the jury had “verdict

forms for guilty of first degree murder, guilty of second degree murder, and not guilty.”

The trial court explained, “You may consider these different kinds of homicide in

whatever order you wish, but I can accept a verdict of guilty of a lesser crime only if all

of you have found the defendant not guilty of the greater crime.” The court then went

step-by-step through the process, explaining that if the jury found the State proved first

degree murder, then it should sign the first degree verdict form and leave the others

alone. The court then explained that if the jury found defendant not guilty of first

degree murder, but guilty of second degree murder, then it should complete the second

degree murder form and so on. (CALCRIM No. 641.)


                                             25
       The jury instructions, when read together, indicate the trial court instructed the

jury on the elements of second degree murder by explaining the elements of a homicide.

The trial court then explained the extra elements that need to be proven for a finding of

first degree murder. Thus, the jury instructions in this case are not deficient as they

relate to second degree murder. The trial court explained the requirements for the

offense and the difference between the two degrees. In sum, the trial court did not err.

       Defendant asserts the trial court erred because it did not explicitly “tell the jury

that if it found [defendant] committed murder, but did not commit premeditated murder

or murder while lying in wait, it should return a verdict of second degree murder.”

Defendant seems to be arguing with the way the instruction was phrased because the

trial court did give this information to the jury, but did not use the exact wording

suggested by defendant.

       The trial court told the jury the elements for second degree murder and the added

elements for first degree murder. The trial court also told the jury: “The People have

the burden of proving beyond a reasonable doubt that the killing was first degree murder

rather than a lesser crime. If the People have not met this burden, you must find the

defendant not guilty of first degree murder.” (CALCRIM No. 521, italics added.) The

trial court also instructed the jury that if it found defendant not guilty of first degree

murder then it should move on to the second degree murder verdict form. In the plain

language of the instruction, the trial court informed the jury that if the jury found

defendant not guilty of first degree murder then it should consider the lesser offense of

second degree murder. Accordingly, we find defendant‟s argument to be unpersuasive.


                                              26
       Defendant asserts his trial counsel was ineffective for failing to “request

instructions which would [have] allow[ed] the jury to convict [him] of second degree

murder.” We find defendant‟s argument to be unavailing because, as set forth ante, the

jury instructions did give the jury the option of convicting defendant of second degree

murder. Thus, defendant‟s trial counsel was effective in this regard.

       D.     ACCOMPLICE TESTIMONY

       Defendant contends the trial court erred by admitting Arzate‟s testimony because

Arzate‟s agreement with the State placed him “under a strong compulsion to testify in

accord with a version of events which the prosecution believed was true.” We disagree.

       The People assert defendant forfeited this contention for appeal by failing to

object to Arzate‟s testimony on the basis he raises here. The failure to preserve an

evidentiary issue by raising it below forfeits the issue for appeal. (People v. Boyer

(2006) 38 Cal.4th 412, 454.) There is nothing indicating defendant objected to Arzate‟s

testimony on the basis of his testimony being improperly coerced. Accordingly, we

agree with the People that the issue has been forfeited. Nevertheless, for the sake of

perhaps preventing a future ineffective assistance of trial counsel argument, we will

address the merits of defendant‟s contention.

       “„“[A] defendant is denied a fair trial if the prosecution‟s case depends

substantially on accomplice testimony and the accomplice witness is placed, either by

the prosecution or by the court, under a strong compulsion to testify in a particular

fashion.” . . . Thus, when the accomplice is granted immunity subject to the condition

that his testimony substantially conform to an earlier statement given to police . . . or


                                             27
that his testimony result in defendant‟s conviction . . . the accomplice‟s testimony is

“tainted beyond redemption” and its admission denies defendant a fair trial. On the

other hand, although there is a certain degree of compulsion inherent in any plea

agreement or grant of immunity, it is clear that an agreement requiring only that the

witness testify fully and truthfully is valid.‟” (People v. Sully (1991) 53 Cal.3d 1195,

1216-1217, italics omitted.) We review the trial court‟s evidentiary ruling for an abuse

of discretion. (People v. Brown (2003) 31 Cal.4th 518, 536.)

       Arzate testified at defendant‟s trial. Arzate was wearing an orange jumpsuit and

was in the custody of San Bernardino County due to murder charges related to the

victim, thus indicating Arzate was defendant‟s accomplice. (See § 1111 [defining an

accomplice].) Arzate entered into an agreement with the prosecutor. The agreement

contemplated Arzate‟s truthful testimony against defendant in exchange for entering a

plea to manslaughter (§ 192) and a gang enhancement (§ 186.22, subd. (b)(1)). Arzate

would receive a prison sentence of 16 years, which could maybe be served outside of

California. Arzate‟s plea deal was not solidified prior to his testimony. Thus, if

Arzate‟s testimony were not truthful, the prosecutor could renege on the deal.

       Arzate‟s agreement with the prosecution was for his truthful testimony. Arzate‟s

deal did not require him to testify to any particular version of the events other than the

truthful version. So, hypothetically, if the truthful version of the events were that

Villafana killed the victim, then Arzate‟s testimony should have reflected those facts.

Arzate was not bound to testify that defendant was the shooter, unless that was the truth.




                                             28
As a result, Arzate was not under any compulsion to testify in an invalid manner. Thus,

we conclude the trial court did not err by permitting Arzate to testify.

       Defendant asserts the trial court erred because Arzate gave five different versions

of the events surrounding the victim‟s death, and then testified to the version that best

served Arzate‟s interests—implicating defendant as the shooter to obtain a plea

agreement with the State. As noted ante, there “is a certain degree of compulsion

inherent in any plea agreement or grant of immunity, [but] it is clear that an agreement

requiring only that the witness testify fully and truthfully is valid.‟” (People v. Sully,

supra, 53 Cal.3d at pp. 1216-1217, italics omitted) While we agree Arzate‟s agreement

may have involved a certain degree of compulsion, there is nothing indicating that he

was required to testify to any particular one version of the five stories he gave the

police, in fact, he could have testified to a sixth version of the events so long as it was

the truth. Thus, we are not persuaded that Arzate‟s agreement with the State was

coercive to the point of forcing him to testify untruthfully.

       E.     CORROBORATION INSTRUCTION

       Defendant contends the trial court erred by failing to instruct the jury that

accomplice testimony requires corroboration to the extent the testimony concerns an

element of a charged offense. We disagree.

       The People assert defendant forfeited this issue for appeal by failing to request a

modification to CALCRIM No. 335 at the trial court. We agree with the People. A

detailed procedural history of the parties‟ jury instruction discussion with the trial court




                                             29
is set forth ante, so we do not repeat it here in its entirety. The portion of the discussion

relevant to this issue of forfeiture went as follows:

       “The Court: Is there an instruction that I‟m giving that you object to, other than

what‟s been instructed[5]?

       “[Defense counsel]: No.

       “The Court: [Prosecutor], is there an instruction that he‟s requested that I‟ve

refused?

       “[Prosecutor]: No, your Honor.”

       It appears from the record that defendant did not object to the trial court‟s version

of CALCRIM No. 335. Thus, defendant has not preserved this issue for appeal and

should not be raising it here for the first time. Nevertheless, to perhaps detract from the

need for a future ineffective assistance of trial counsel argument, we will address the

merits of defendant‟s contention.

       As explained ante, we review alleged instructional errors de novo. (Burch,

supra, 148 Cal.App.4th at p. 870.) The trial court gave the jury the following

instruction, in relevant part: “If the crime of Murder was committed, then Elias Azarte

[sic] was an accomplice to that crime. [¶] You may not convict the defendant of Murder

based on the statement or testimony of an accomplice alone. You may use the

statement or testimony of an accomplice to convict the defendant only if: [¶] 1. The

accomplice‟s statement or testimony is supported by other evidence that you believe; [¶]

2. That supporting evidence is independent of the accomplice‟s statement or testimony;

       5   We infer the word “instructed” should be replaced with the word “discussed.”

                                             30
[¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the

commission of the crime.” (CALCRIM No. 335, italics added.)

       The trial court went on to explain the definition of “supporting evidence.” In that

explanation, the trial court said, “[I]t 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.

[¶] Any statement or testimony of an accomplice that tends to incriminate the

defendant should be viewed with caution.” (CALCRIM No. 335, italics added.)

       As set forth ante, the trial court instructed the jury any accomplice testimony that

would lead to defendant‟s conviction, or incriminate defendant, needed corroboration.

A defendant is convicted or incriminated by committing the elements of a crime. Thus,

the jury received the information that any accomplice testimony needed to be

corroborated if it implicated defendant as committing an element of a charged offense.

       Defendant‟s argument focuses on the portion of the trial court‟s instruction

reflecting, “3. That supporting evidence tends to connect the defendant to the

commission of the crime.” Defendant argues this language is incorrect because it does

not explain that the corroborating evidence had to be about an element of the offense,

but that the corroborating evidence only needed to have the tendency of connecting

defendant to the offense. We are perplexed by defendant‟s argument. What evidence

tending to connect defendant to the commission of an offense would not concern an

element of an offense? In other words, what else could the trial court have been

discussing but evidence reflecting defendant committed the elements of murder?


                                            31
       Defendant seems to assert the trial court‟s instruction should have been written in

a plainer or simpler manner. As set forth ante, if defendant wanted to modify the

language of the instruction then he should have requested the trial court do so—not wait

until he reached the appellate court. We will not fault the trial court for delivering

required information with perhaps more eloquent terms than defendant would prefer. In

sum, the trial court did not err.

       F.     UNANIMITY INSTRUCTION

       Defendant contends the trial court erred by not instructing the jury on unanimity.

Defendant asserts a unanimity instruction should have been given concerning first

degree murder because the prosecutor proceeded on the theories of (1) lying in wait, and

(2) willful, deliberate, premeditated murder. We disagree.

       Our Supreme Court has rejected defendant‟s precise contention. In People v.

Russell (2010) 50 Cal.4th 1228, our Supreme Court wrote: “„This court . . . views lying

in wait “as the functional equivalent of proof of premeditation, deliberation and intent to

kill.”‟ [Citation.] Because lying in wait and deliberate and premeditated theories of

murder are simply different means of committing the same crime, juror unanimity as to

the theory underlying its guilty verdict is not required.” (Id. at p. 1257.)

       Since we are bound to follow our high court‟s rulings, we must reject defendant‟s

argument that the trial court erred by not instructing the jury on unanimity. (See Auto

Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455

[“Courts exercising inferior jurisdiction must accept the law declared by courts of

superior jurisdiction.”].)


                                             32
                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                      MILLER
                                                               J.


We concur:


RICHLI
                      Acting P. J.


KING
                                   J.




                                            33
