Filed 7/26/13 P. v. Rodriguez CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                        E054701

v.                                                                       (Super.Ct.No. INF065609)

CONCEPCION RODRIGUEZ,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard A. Erwood,

Judge. Defendant‟s appeal: Judgment affirmed. People‟s appeal: Sentence vacated;

remanded with instructions.

         Waldemar D. Halka, 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, Steve Oetting and Andrew




                                                             1
Mestman, Deputy Attorneys General; Paul E. Zellerbach, District Attorney, and Kelli

Catlett, Deputy District Attorney, for Plaintiff and Appellant.

       Defendant Concepcion Rodriguez appeals his conviction for first degree murder

with the special circumstance of murder committed during the course of a kidnapping.

We find no reversible error, and we will affirm the conviction.

       The prosecution appeals from the sentence, contending that the trial court‟s

decision to suspend the order for victim restitution rendered the sentence unauthorized.

We agree. Further, we conclude that the imposition of a parole revocation fine was

unauthorized. We will direct the trial court to take corrective action with respect to both

sentencing issues.

                                 PROCEDURAL HISTORY

       Defendant was charged with the premeditated and deliberate murder of Anastacio

Torres, including an allegation that the murder was committed during the commission or

attempted commission of kidnapping. (Pen. Code, §§ 187, subd. (a), 190.2,

subd. (a)(17)(B).)1 The information also alleged that defendant personally and

intentionally discharged a firearm causing great bodily injury and death during the

commission of count 1, within the meaning of section 12022.53, subdivision (d) and

section 1192.7, subdivision (c)(8). During the trial, the information was amended to

allege personal use of a firearm within the meaning of section 12022.5, subdivision (a).




       1   All statutory citations refer to the Penal Code unless another code is specified.
                                               2
       A jury found defendant guilty as charged on count 1 and found the kidnapping

special circumstance true. The jury deadlocked on the two gun use allegations, and the

allegations were later dismissed on motion of the People.

       Defendant filed a motion for acquittal or new trial, and for an order imposing no

restitution. The prosecution filed opposition. The court denied the motion for acquittal

or new trial. It imposed the mandatory term of life imprisonment without the possibility

of parole. It ordered victim restitution in the amount of $7,500 but ordered it stayed

unless defendant was released on parole. The court imposed a restitution fine in the

amount of $1,000 and imposed and stayed a parole revocation fine in the same amount.

       Defendant filed a timely notice of appeal. The prosecution filed a timely notice of

appeal from the order staying victim restitution.

                                           FACTS

       On the morning of May 14, 2006, the body of Anastacio Torres was found in a

semi-secluded area of Desert Hot Springs. His hands were bound in front of him with

plastic zip ties and his body lay on top of a mattress pad and a blanket. He had been shot

twice in the chest.

       In May 2006, a rumor began to circulate among a group of acquaintances that

Torres, known as “Taquito,” had raped Andrea Garcia, the girlfriend of defendant

Rodriguez. On May 12, 2006, defendant repeatedly asked Garcia if the rumor was true.

She denied it. During the course of that day and evening, defendant beat her, threatened

her with a handgun, tied her wrists with zip ties, and put her into a closet in their

apartment. He pointed the gun at her head and demanded to know if Torres had raped

                                              3
her. Afraid of being shot, Garcia finally told him that Torres had raped her, although in

fact he had not done so. After Garcia had confirmed that Torres had raped her, defendant

cut off the zip ties and let her go.

       On May 13, 2006, defendant and another man, later identified as Mingus

Chavarria, went to the apartment in Desert Hot Springs where Torres lived with his

girlfriend Amanda Valenzuela, her mother Michele Valenzuela, and Michele‟s husband,

Franklin Vasquez. Only Vasquez was at home when defendant and Chavarria arrived.

Vasquez knew defendant but did not know Chavarria. Defendant told Vasquez he was

looking for Torres. Vasquez told defendant that Torres was not home. Defendant and

Chavarria waited outside the apartment. While they waited, defendant made “cuff-like”

shapes out of zip ties he had in his pocket. Although Vasquez did not perceive that

defendant was angry or upset, Chavarria said that defendant appeared to be angry. 2

According to Chavarria, defendant had a gun in the waistband of his pants.




       2  Chavarria testified that he had accompanied defendant at defendant‟s request but
did not know why defendant wanted to see Torres. A woman Chavarria did not know
drove them from defendant‟s apartment to Torres‟s apartment and waited for them in a
nearby church parking lot.
        Chavarria‟s description of the visit to the Valenzuela apartment differed greatly
from Vasquez‟s testimony. Vasquez said that the two men arrived around 10:15 to 10:30
in the evening and that he visited outside with defendant for about 45 minutes, until
Torres and the others came home. Chavarria testified that they arrived there early in the
afternoon and that they waited outside, alone, for an hour or two before Torres and the
others arrived. He believed that Torres and the others arrived around sundown.
                                             4
       Around 10:30 or 11:00 p.m., Torres and Amanda and Michele Valenzuela returned

to the apartment. Vasquez told Torres that defendant was downstairs and wanted to see

him. Torres left the apartment and went to the laundry room where defendant and

Chavarria were waiting for him.3

       Inside the laundry room, defendant asked Torres why he had raped defendant‟s

girlfriend. Torres said he did not do that. The two argued loudly.

       Michele Valenzuela heard loud voices outside and went out to see what was going

on. The voices were coming from the laundry room. From outside the laundry room, she

heard Torres say, “Dude, if you are going to shoot me, then shoot me.” Michele yelled

out that they needed to take their “bullshit” elsewhere. At that point, defendant said to

Chavarria, “Let‟s go.” Chavarria left the laundry room and began walking toward the

street. Defendant and Torres exited next. Michele Valenzuela saw defendant put his arm

around Torres‟s shoulder and heard him say, “If you have nothing to hide, then come

with me.” Michele watched them walk up the street toward a church, and then returned

to her apartment. Amanda Valenzuela also saw them walking toward the church. She

described the three men walking abreast, with Torres in the middle.




       3 Michele Valenzuela testified that she saw Chavarria come out of the laundry
room, followed by defendant and Torres. Chavarria denied having been in the laundry
room and said that he waited outside.
                                             5
       When they arrived at the parking lot, where their driver awaited them, Chavarria

saw that Torres‟s hands were bound with zip ties. Chavarria asked Torres what was

going on. Torres said that what defendant was saying was not true. Defendant told

Torres, “If you have nothing to hide, then you‟ll go with us.” Torres got into the car, and

they drove to defendant‟s apartment.

       At the apartment, they went into a bedroom, where defendant began arguing with

Torres, pacing and yelling at him. He accused Torres of raping Garcia, and Torres

continued to deny it. Torres‟s hands were still zip-tied. Defendant told Chavarria to stay

with Torres while he went to get Garcia.

       Garcia was sleeping in defendant‟s mother‟s apartment in the same apartment

building where she lived with defendant. Around 2:00 or 3:00 a.m., defendant woke her

and asked her to come with him. She followed defendant to their apartment. There, she

saw Torres kneeling on the floor in the middle of the bedroom with his hands bound

behind him. There was another man in the room, or possibly two. Garcia did not know

them. One or both men were standing next to Torres. At least one man other than

defendant had a gun.4

       Defendant, holding a handgun, asked Garcia whether Torres had raped her. He

told her either she or Torres was going to be “getting it” if she did not tell the truth.

Torres was crying, and begged Garcia to tell defendant the truth, i.e., that he didn‟t do it.

Garcia, fearing for her life, apologized to Torres, but told defendant that Torres had raped

her. Defendant then told her to leave.

       4   Chavarria denied having a gun.
                                               6
       Garcia returned to defendant‟s mother‟s apartment and went to sleep. She did not

call the police or alert defendant‟s brother, Adam, who lived in the same building. She

did not hear any gunshots.

       After Garcia left the apartment, Chavarria pleaded with Torres to tell defendant

what he wanted to know, but Torres did not. Defendant turned on some loud music and

shot Torres in the chest. Torres staggered and fell.

       Defendant, Chavarria and the unknown female drove to a house belonging to

someone named Irma. A friend named Turtle was also at the house. Irma then drove

defendant, Chavarria and Turtle back to defendant‟s apartment in her pickup truck.

Defendant, Chavarria and Turtle placed Torres‟s body in the back of the truck and

covered him with two blankets Chavarria got from a neighboring apartment. Defendant

then told Chavarria to dispose of the body.

       Chavarria drove the truck two or three blocks before running out of gas. He

walked back to the apartment and told defendant what had happened. He and defendant

walked to a gas station, got some gas and put it into the truck, then drove to the location

where Torres‟s body was found. Defendant told Chavarria to get the body out of the

truck. Chavarria pushed the body out of the truck with his feet and covered it with the

blankets. He and defendant then returned to the apartment. Chavarria washed out the

truck bed with a hose.

       Defendant was interviewed in connection with Torres‟s murder on July 7, 2006.

He denied killing Torres, but admitted that they had talked in the laundry room about

Torres‟s having sex with Garcia. He said they left together and walked toward the

                                              7
church, then parted amicably. Police contacted Garcia, and she provided an alibi. No

one could identify defendant‟s accomplice at that point, and the district attorney declined

to file charges.5

       In December 2008, Michele Valenzuela identified a photograph of Chavarria as

possibly being the person who was with defendant on May 13, 2006. In March 2009,

police interviewed Chavarria at the county jail in Indio, where he was in custody on a

different matter. Chavarria admitted his involvement. Police later contacted Andrea

Garcia, who was then living in Los Angeles County. Charges were then filed against

defendant and Chavarria. Chavarria later pleaded guilty to second degree murder and

received a sentence of 15 years to life in exchange for truthful testimony.




       5 Defendant‟s brother Adam and Adam‟s girlfriend Mary Valenzuela told police
that defendant had been with “Mingus” on the night of the murder. Adam said that
Mingus resembled Carlos Cortez, whom Frank Vasquez had identified as possibly being
the person defendant was with at his apartment that night. Cortez, however, had a solid
alibi. None of the other witnesses knew Chavarria and police were unable to pursue the
investigation at that time. Police later learned that a Mingus Chavarria was in custody.
                                             8
                                DEFENDANT‟S APPEAL

                                   LEGAL ANALYSIS

                                             1.

    THE TRIAL COURT PROPERLY DENIED THE MOTION FOR ACQUITTAL

       At the conclusion of the prosecution‟s case-in-chief, defendant made a motion for

acquittal pursuant to section 1118.1 with respect to the kidnapping special circumstance

and the felony-murder theory of murder during the commission of a kidnapping. He

contended that there was no substantial evidence to corroborate the testimony of Mingus

Chavarria, who was an accomplice as a matter of law. The trial court denied the motion

after finding that Torres‟s statement, “Dude, if you are going to shoot me, then shoot

me,” was sufficient proof to establish “the fact that the defendant had a gun pointed at the

victim,” that the victim was “threatened with a firearm,” and that the threat with the gun

made Torres‟s movement without consent because “[n]ow he‟s leaving with the person

who is threatening him.”

       Defendant now contends that although the trial court correctly assessed the

evidence without regard to Chavarria‟s testimony, it erroneously relied on Torres‟s

statement as evidence of the victim‟s state of mind to prove defendant‟s conduct. He also

contends that if Torres‟s statement had been excluded or “properly limited,” there would

have been insufficient corroboration of the testimony of the accomplice, Chavarria. In a

related argument, he contends that the court erroneously allowed the jury to consider

Torres‟s statement as proof of the matter asserted, i.e., that defendant possessed and



                                             9
displayed a gun in the laundry room. We will address the admissibility of the statement

before considering whether the motion for acquittal should have been granted.

       Torres’s Statement Was Admissible As Circumstantial Evidence That Torres Did

Not Go Willingly with Defendant.

       During motions in limine, the trial court initially ruled that Torres‟s laundry room

statement was admissible for the nonhearsay purpose of showing the effect of the

statement on the listener, Michele Valenzuela, i.e., to explain her subsequent conduct.

The court ruled that the statement would not be admissible “for the truth of the matter

asserted.” The court did not specify what matter was asserted in the statement, “Dude, if

you are going to shoot me, then shoot me.” Later, the prosecution sought to have the

statement admitted under Evidence Code section 1250, subdivision (a)(2), to explain

Torres‟s subsequent conduct, i.e., that he did not leave with defendant voluntarily but

because defendant had a gun (or because Torres thought he did). Over defendant‟s

objection, the court revised its prior ruling to allow the prosecutor to introduce the

statement for the “truth of the matter asserted.”

       In his closing argument, the prosecutor relied on the statement as evidence that

Torres did not go willingly with defendant and Chavarria but went out of fear because

defendant had displayed a gun.

       Evidence of a murder victim‟s state of mind may be admissible under the hearsay

exception provided in Evidence Code section 1250 or as nonhearsay circumstantial

evidence of the victim‟s state of mind:



                                             10
       “[Evidence Code] [s]ection 1250 provides in relevant part that „. . . evidence of a

statement of the declarant‟s then existing state of mind, emotion, or physical sensation

(including a statement of intent, plan . . .) is not made inadmissible by the hearsay rule

when: [¶] (1) The evidence is offered to prove the declarant‟s state of mind, emotion, or

physical sensation at that time or at any other time when it is itself an issue in the action;

or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.‟

The evidence admitted under section 1250 is hearsay; it describes a mental or physical

condition, intent, plan, or motive and is received for the truth of the matter stated.

[Citation.] If offered to prove the declarant‟s state of mind, the statement may be

introduced without limitation, subject only to section 352. However, the declarant‟s state

of mind must be at issue in the case. For instance, evidence of the victim‟s general fear

or dislike of the appellant is not relevant unless the victim‟s state of mind has been placed

in issue. [Citation.]

       “In contrast, a statement which does not directly declare a mental state, but is

merely circumstantial evidence of that state of mind, is not hearsay. It is not received for

the truth of the matter stated, but rather whether the statement is true or not, the fact such

statement was made is relevant to a determination of the declarant‟s state of mind.

[Citation.] Again, such evidence must be relevant to be admissible—the declarant‟s state

of mind must be in issue. [Citation.] [Upon request,] [a] limiting instruction is required

with declarations used as circumstantial evidence of the declarant‟s mental state; that is,

the declaration is not received for the truth of the matter stated and can only be used for



                                              11
the limited purpose for which it is offered. [Citation].” (People v. Ortiz (1995) 38

Cal.App.4th 377, 389; accord, People v. Cox (2003) 30 Cal.4th 916, 962-963.)6

       Here, Torres‟s statement did not directly declare a mental state, such as “I am

afraid that Rodriguez is going to kill me.” Consequently, it was not admissible under

Evidence Code section 1250. Rather, it was nonhearsay circumstantial evidence of his

state of mind, i.e., that he was afraid that defendant was going to shoot him, either

because defendant had displayed a gun or because Torres for some other reason believed

defendant had a gun. It was also circumstantial evidence that Torres accompanied

defendant and Chavarria out of fear that defendant would shoot him. Accordingly, it was

admissible for that purpose.

       Defendant contends, however, that even if the evidence was admissible, the court

should have excluded it under Evidence Code section 352.7 He contends that the

probative value as to Torres‟s state of mind and whether Torres voluntarily accompanied

defendant to defendant‟s apartment was substantially outweighed by the probability that

the jury would improperly use the evidence of Torres‟s statement as proof of defendant’s

mental state and conduct. He asserts that in his closing arguments, the prosecutor relied

       6  Evidence Code section 355 provides: “When evidence is admissible as to one
party or for one purpose and is inadmissible as to another party or for another purpose,
the court upon request shall restrict the evidence to its proper scope and instruct the jury
accordingly.” Here, defendant did not request a limiting instruction.

       7 Defendant also contends that it should have been excluded under Evidence Code
section 1252. That statute provides that evidence which would otherwise be admissible
under Evidence Code section 1250 is inadmissible if it was made under circumstances
which indicate its lack of trustworthiness. Because we have concluded that the evidence
was not admissible under the hearsay exception provided for in Evidence Code section
1250 but was instead admissible as nonhearsay, we need not address this contention.
                                             12
on Torres‟s statement “at least five separate times” in arguing for a felony-murder

conviction on the kidnapping theory.

       Evidence Code section 352 accords the trial court broad discretion to exclude even

relevant evidence “„if its probative value is substantially outweighed by the probability

that its admission will . . . create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.‟ „Evidence is substantially more prejudicial than

probative [citation] if, broadly stated, it poses an intolerable “risk to the fairness of the

proceedings or the reliability of the outcome” [citation].‟ [Citation.] We review a trial

court‟s ruling under Evidence Code section 352 for an abuse of discretion.” (People v.

Clark (2011) 52 Cal.4th 856, 893.)

       Here, defendant objected to the evidence of Torres‟s statement under Evidence

Code section 352. The trial court‟s implied finding that the probative value of the

statement outweighed its potential for prejudice was not an abuse of discretion. Torres‟s

state of mind when he left the laundry room with defendant—whether he went willingly

or because of force or fear—was a significant issue for purposes of the felony-murder

theory that he was murdered during a kidnapping and for the kidnapping special

circumstance, and his statement was highly probative on that point. However, it was not

the only evidence that defendant had a gun—Chavarria testified that defendant had a gun

in his waistband before he and Torres went into the laundry room. Consequently, the

likelihood that the jury would misuse Torres‟s statement as evidence of defendant‟s

mental state or conduct, rather than as circumstantial evidence of Torres‟s mental state or



                                               13
as an explanation of his conduct, was minimal. Accordingly, the trial court did not abuse

its discretion in ruling on defendant‟s objection pursuant to Evidence Code section 352.

       The Motion for Acquittal.

       “On a motion for judgment of acquittal under section 1118.1, the trial court

applies the same standard as an appellate court reviewing the sufficiency of the evidence.

The court must consider whether there is any substantial evidence of the existence of

each element of the offense charged, sufficient for a reasonable trier of fact to find the

defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Harris (2008) 43

Cal.4th 1269, 1286.) Whether substantial evidence exists is a question of law which a

reviewing court decides independently. (Ibid.) Accordingly, we do not address the

correctness of the trial court‟s analysis of the evidence.

       Accomplice testimony is not sufficient to support a conviction unless it is

corroborated by other evidence connecting the defendant with the offense without aid or

assistance from the accomplice‟s testimony. (§ 1111; People v. Avila (2006) 38 Cal.4th

491, 562-563.) Corroborating evidence is sufficient if it “tends to implicate the defendant

and thus relates to some act or fact that is an element of the crime.” (People v. Avila, at

pp. 562-563) The corroborative evidence may be “„“slight and entitled to little

consideration when standing alone.” [Citation.]‟” (Id. at p. 563.) “It is enough that the

corroborative evidence tends to connect defendant with the crime in a way that may

reasonably satisfy a jury that the accomplice is telling the truth. [Citation.]” (People v.

Narvaez (2002) 104 Cal.App.4th 1295, 1303.) Corroborative evidence may be entirely

circumstantial. (Ibid.)

                                              14
       As discussed above, Michele Valenzuela‟s testimony that Torres said, “Dude, if

you are going to shoot me, then shoot me,” was admissible as circumstantial evidence

that Torres did not voluntarily leave the apartment complex with defendant. That

evidence was also sufficient to corroborate Chavarria‟s testimony that defendant had a

gun. Defendant‟s admission that the night before Torres‟s body was found, he

confronted Torres about the rumors that Torres had raped Garcia, also corroborated

Chavarria‟s testimony, as did Michele Valenzuela‟s testimony that defendant and Torres

were talking in “very loud” voices. Additionally, Amanda Valenzuela saw the three men

walking away from the apartment complex three abreast, with Torres in the middle, thus

implying that Torres did not go willingly. Taken all together, this evidence supports the

inference that Torres did not leave the apartment complex with defendant voluntarily.

       Defendant contends that Michele Valenzuela‟s further testimony that moments

later she saw defendant put his arm around Torres‟s shoulder and heard him say, “If you

have nothing to hide, then come with me,” and that defendant‟s hands were not bound

shows that defendant did not kidnap Torres. The existence of conflicting evidence does

not, however, affect our substantial evidence analysis. In assessing whether substantial

evidence exists, an appellate court views all factual matters in the light most favorable to

the prevailing party and resolves all conflicts in the evidence and indulges all reasonable

inferences from the evidence to support the judgment. (Bickel v. City of Piedmont (1997)

16 Cal.4th 1040, 1053.) The judgment will be upheld if it is supported by substantial

evidence, even though substantial evidence to the contrary also exists and the trier of fact



                                             15
might have reached a different result if it had believed other evidence. (Howard v.

Owens Corning (1999) 72 Cal.App.4th 621, 631.)

       Because substantial evidence corroborated Chavarria‟s testimony and supported

the kidnapping special circumstance and the kidnapping felony-murder theory, the trial

court properly denied the motion for acquittal.

                                             2.

  THE TRIAL COURT DID NOT ERR BY FAILING TO DISMISS THE MURDER

                            CHARGE ON ITS OWN MOTION

       Defendant contends that although he did not seek acquittal of murder on theories

of express or implied malice, the trial court should nevertheless have dismissed the

murder charge in its entirety because the accomplice‟s testimony was the only direct

evidence linking defendant to the killing.

       Section 1118.1 provides that before the case is submitted to the jury, either on

motion of the defendant or on its own motion, the trial court must order entry of a

judgment of acquittal as to any offense charged in the accusatory pleading if the evidence

is insufficient to sustain a conviction on the offense or offenses on appeal.

       Here, there is ample circumstantial evidence linking defendant to the killing,

independent of Chavarria‟s testimony. Defendant admitted that he confronted Torres

about the rumor that Torres had raped defendant‟s girlfriend, Andrea Garcia. The

confrontation in the laundry room, which was overheard by Michele Valenzuela, took

place late in the evening on May 13, 2006. Andrea Garcia testified that around 2:00 or

3:00 a.m. on May 13, 2006, defendant took her to their apartment where Torres, with his

                                             16
hands bound and on his knees, begged her to tell defendant the truth, while defendant

stood nearby, holding a handgun. Torres‟s body, with two bullet wounds and his hands

bound, was found on the morning of May 14, 2006. That evidence, which is in itself

sufficient to support the inference that defendant shot and killed Torres, is also sufficient

to corroborate Chavarria‟s testimony.8 (People v. Avila, supra, 38 Cal.4th 562-563

[corroborating evidence is sufficient if it is independent of the accomplice‟s testimony

and “tends to implicate the defendant and thus relates to some act or fact that is an

element of the crime”].) Accordingly, the trial court did not err in failing to order

acquittal on the murder charge.

                                               3.

           THE EVIDENCE DID NOT MANDATE AN INSTRUCTION THAT

                      ANDREA GARCIA WAS AN ACCOMPLICE

       Defendant makes three separate arguments based on the premise that Andrea

Garcia was an accomplice: In Argument III, he contends that the murder charge should

have been dismissed because Garcia was an accomplice whose testimony was not

corroborated and whose testimony could not corroborate Chavarria‟s; in Argument VIII,

he contends that the trial court prejudicially erred by failing to instruct the jury that

Garcia was an accomplice; and in Argument IX, he contends that the trial court‟s failure

to so instruct violated his right to due process. We reject all three contentions because


       8 In section 3, we reject defendant‟s contention that Garcia was an accomplice
whose testimony also required corroboration. We note, however, that the circumstantial
evidence discussed above is sufficient to corroborate Chavarria‟s testimony, even without
Garcia‟s testimony.
                                              17
the evidence does not show that Garcia was an accomplice as a matter of law, and the

evidence did not warrant an instruction directing the jury to determine whether she was

an accomplice.

       Garcia Was Not an Accomplice As a Matter of Law.

       Section 1111 defines “accomplice” as “one who is liable to prosecution for the

identical offense charged against the defendant on trial in the cause in which the

testimony of the accomplice is given.” An accomplice may be a direct perpetrator or an

aider and abettor. (People v. Avila, supra, 38 Cal.4th at p. 564.) Whether a person is an

accomplice is a question of fact for the jury unless there is no dispute as to either the facts

or the inferences to be drawn from the facts. (People v. Fauber (1992) 2 Cal.4th 792,

834.) Stated another way, a person is an accomplice as a matter of law only if the

evidence is uncontested and unequivocal. (People v. Williams (2008) 43 Cal.4th 584,

637.) The burden is on the defendant to prove by a preponderance of the evidence that a

witness is an accomplice.9 (People v. Fauber, at p. 834.)

       Defendant contends that Garcia was an accomplice under either the theory that she

was a direct participant in the murder or the theory that she was an aider and abettor.


       9  We reject defendant‟s contention that there are two separate tests for
determining whether a witness is an accomplice. His so-called probable cause test—that
a person is an accomplice if he or she can be indicted for the crime charged—merely
states the threshold for determining accomplice status: By definition, if the witness
cannot be charged with the same offense, he or she is not an accomplice. (§ 1111.) If,
however, the witness could be charged with the same offense, he or she is an accomplice
as a matter of law only if undisputed facts from which only a single inference can be
drawn show that the witness is necessarily guilty of the charged offense. Otherwise, the
witness‟s status as an accomplice is a question of fact to be decided by the jury. (People
v. Fauber, supra, 2 Cal.4th at p. 834; People v. Williams, supra, 43 Cal.4th at p. 637.)
                                              18
Both theories depend on defendant‟s contention that Garcia lied about Torres having

raped her, knowing that defendant would either murder Torres in revenge or assault him

with a firearm, with murder being a foreseeable consequence of the assault.

       Defendant did not seek a ruling that Garcia was an accomplice as a matter of law,

nor did he request an instruction to the jury to determine whether Garcia was an

accomplice. In general, errors not asserted in the trial court may not be raised for the first

time on appeal. (See, generally, In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)

Assuming, however, that review of defendant‟s claim is not forfeited by his failure to

raise it below, he has failed to meet his burden of demonstrating error.

       Although defendant repeatedly asserts that Garcia “knew” that defendant would

kill or assault Torres, he does not cite to any evidence in the record which shows that

Garcia knew what defendant would do. The only evidence he refers to, and the only

evidence of which we are aware, is Garcia‟s testimony that when defendant brought her

to the apartment where Torres was being held, he told her that unless she told the truth

about being raped by Torres, “it was either going to be me getting it or [Torres] getting

it.” This statement is ambiguous, to say the least, and it clearly does not mandate the

conclusion that Garcia “knew” that if she told defendant Torres had raped her, defendant

would kill Torres.

       Furthermore, under either of defendant‟s theories of Garcia‟s accomplice status, it

is essential that there be unequivocal and undisputed evidence that Garcia acted with the

intent to further defendant‟s criminal purpose. As an aider and abettor, Garcia‟s

vicarious liability depended on her acting “„“with knowledge of the criminal purpose of

                                             19
the perpetrator and with an intent or purpose either of committing, or of encouraging or

facilitating commission of, the offense.” [Citation.]‟” (People v. McCoy (2001) 25

Cal.4th 1111, 1118.) Where the evidence concerning the witness‟s intent is disputed or

where it supports more than one inference concerning the witness‟s intent, the witness is

not an accomplice as a matter of law. (People v. Williams, supra, 43 Cal.4th at p. 637.)

       Defendant does not cite any evidence which demonstrates that Garcia intended to

further defendant‟s criminal purpose, and we have found none. Rather, the evidence

shows that Garcia‟s only intention was to avoid being harmed herself. She testified that

when defendant demanded that she tell the truth or else it would be either her or Torres

“getting it,” she rebuffed Torres‟s plea that she tell defendant that he did not rape her and

lied to defendant because she was afraid of what defendant would do to her if she did not.

Her fear was based on her experience of the day before, when defendant beat and

harangued her all day, eventually binding her wrists and confining her in a closet and

threatening her at gunpoint that he would kill her if she did not admit that Torres had

raped her. There was no evidence to the contrary, and there is simply no factual basis

upon which to base an inference that, contrary to her testimony, Garcia really intended

for defendant to assault or murder Torres. Any such inference would be based on nothing

more than speculation. Speculation, of course, is not a sufficient basis for any inference.

(People v. Hughes (2002) 27 Cal.4th 287, 365.) Accordingly, Garcia‟s testimony does

not support a finding that she was an accomplice under an aiding and abetting theory.

(People v. Williams, supra, 43 Cal.4th at p. 637.)



                                             20
       Defendant‟s so-called “Othello” theory—that Garcia lied about Torres having

raped her in order to goad defendant into killing Torres—also required evidence that

Garcia lied with the intention of bringing about Torres‟s murder. (See People v. McCoy,

supra, 25 Cal.4th at pp. 1121-1122.)10 Again, there is no such evidence, and any

conclusion that she did act with that intention would be pure speculation.

       The Evidence Also Does Not Warrant an Instruction Directing the Jury to

Determine Whether Garcia Was an Accomplice.

       A trial court has a sua sponte duty to instruct the jury to determine whether the

witness is an accomplice whenever trial testimony is sufficient to warrant the conclusion

that a witness implicating the defendant is an accomplice. (People v. Richardson (2008)

43 Cal.4th 959, 1024.) Here, defendant contends only that Garcia was an accomplice as a

matter of law and that the trial court had a sua sponte duty to so instruct the jury. He

does not contend that the evidence warranted an instruction to the jury to determine

whether Garcia was an accomplice. Accordingly, we need not address that issue. We

note, however, that the evidence is not sufficient to warrant that conclusion, for the

reasons stated above.


       10 In People v. McCoy, supra, 25 Cal.4th 1111, the issue before the court was
whether a defendant charged as an aider and abettor can be convicted of a greater offense
than the direct perpetrator. To illustrate the distinction between aider and abettor liability
and direct liability, the court explained that if Iago falsely tells Othello that Desdemona is
having an affair, hoping that Othello will kill her in a fit of jealousy, and Othello does so
without further involvement by Iago, Iago‟s criminal liability is not vicarious, i.e.,
depending on Othello‟s mens rea, but rather is direct, depending solely upon his own
mens rea. Accordingly, even if Othello is convicted only of voluntary manslaughter on a
theory of provocation, Iago can be convicted of first degree murder. (Id. at pp. 1121-
1122.)
                                             21
                                              4.

                                    APPRENDI ISSUE

       Defendant contends that the rule that corroboration for accomplice testimony need

only be “slight” (see People v. Avila, supra, 38 Cal.4th at p. 536, discussed in Section 3,

ante) violates his federal constitutional right to have all facts necessary for conviction and

for increased punishment proven beyond a reasonable doubt, under the holding of

Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). He contends that corroboration

of accomplice testimony is “akin” to an element of the offense and is thus subject to the

Apprendi rule.

       In Apprendi and subsequent decisions, the United States Supreme Court held that

any fact, other than the fact of a prior conviction, which increases the penalty for a crime

beyond the statutory maximum, must be submitted to the jury and must be proven beyond

a reasonable doubt. (People v. Nguyen (2009) 46 Cal.4th 1007, 1010.) In Apprendi, the

court “found this principle inherent in the common law tradition, in effect when the Sixth

Amendment was adopted, that any fact crucial to the maximum punishment for an

offense was, for that purpose, an „element‟ of the offense, and thus equally subject to the

requirements of indictment or presentment, proof beyond reasonable doubt, and jury

trial.” (Ibid.)

       Although defendant contends that corroboration of accomplice testimony is

tantamount to an element of the offense, he provides no authority or persuasive argument

that this is so. Indeed, in People v. Frye (1998) 18 Cal.4th 894, our Supreme Court

rejected such a contention. “Defendant‟s characterization of the accomplice corroboration

                                             22
requirement as an element of the crime subject to proof beyond a reasonable doubt

[citations] is unsupported and unpersuasive.” (Id. at p. 966.) Instead, the court

characterized the corroboration requirement as a “collateral factual issue” which has no

bearing on the substantive guilt or innocence of the accused or on any element of the

charged offense. (Id. at pp. 967-969.)

       Similarly, defendant fails to persuade us that corroboration of accomplice

testimony is a fact which subjects a defendant to increased punishment, thus bringing it

within the Apprendi line of cases. It is not. The punishment remains the same, whether

the defendant is convicted by corroborated accomplice testimony or by other evidence.

Accordingly, the rule that “slight” evidence suffices to corroborate the testimony of an

accomplice does not violate the federal Constitution.

                                             5.

             DEFENDANT FAILS TO DEMONSTRATE THAT THERE IS

           INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION

                     AND SPECIAL CIRCUMSTANCE FINDING

       Defendant contends that even if the accomplice testimony was corroborated, the

evidence is nevertheless insufficient to support the conviction and special circumstance

finding.

       We presume that an order or judgment is supported by the evidence, and it is the

appellant‟s burden to show that it is not. (See Foreman & Clark Corp. v. Fallon (1971) 3

Cal.3d 875, 881.) “„A party who challenges the sufficiency of the evidence to support a

particular finding must summarize the evidence on that point, favorable and unfavorable,

                                            23
and show how and why it is insufficient.‟” (Schmidlin v. City of Palo Alto (2007) 157

Cal.App.4th 728, 738, italics omitted.) It is the appellant‟s burden, not the court‟s, to

identify and establish deficiencies in the evidence: An appellate court is not required to

conduct an independent search of the record to determine the sufficiency of the evidence.

(Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) Consequently, an appellant

who fails to state the facts fairly forfeits evidentiary claims. (Foreman & Clark Corp. v.

Fallon, at p. 881.) Here, defendant discusses only the evidence which, if believed, might

undermine the verdict and finding. Accordingly, we need not address his contention, and

we decline to do so.

                                             6.

        OTHER CRIMES OR PRIOR BAD ACTS EVIDENCE CONCERNING

                    ANDREA GARCIA WAS PROPERLY ADMITTED

       Prior to trial, the prosecution sought admission pursuant to Evidence Code section

1101, subdivision (b), of two items of evidence: an incident of domestic violence

between defendant and Garcia which took place in March 2006, about two months before

the murder; and the incident on May 12, 2006, when defendant assaulted Garcia with a

handgun, tied her hands with zip ties, and threatened to kill her if she did not admit that

Torres had raped her. Over defense objection, the trial court ruled that both incidents

were admissible. It instructed the jury using CALCRIM No. 375, the standard instruction

on evidence admitted under Evidence Code section 1101, subdivision (b) (hereafter

section 1101(b)).



                                             24
       Defendant now contends that the trial court erred in admitting the evidence of both

incidents. (Arguments VI and VII.)

       “„Evidence that a defendant committed crimes other than those for which he is on

trial is admissible when it is logically, naturally, and by reasonable inference relevant to

prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The

trial court judge has the discretion to admit such evidence after weighing the probative

value against the prejudicial effect. [Citation.] When reviewing the admission of

evidence of other offenses, a court must consider: (1) the materiality of the fact to be

proved or disproved, (2) the probative value of the other crime evidence to prove or

disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if

the evidence is relevant. [Citation.] Because this type of evidence can be so damaging,

“[i]f the connection between the uncharged offense and the ultimate fact in dispute is not

clear, the evidence should be excluded.” [Citation.]‟ [Citation.] „“We review for abuse

of discretion a trial court‟s rulings on relevance and admission or exclusion of evidence

under Evidence Code sections 1101 and 352.” [Citation.]‟ [Citation.]” (People v.

Fuiava (2012) 53 Cal.4th 622, 667-668.)

       The May 12 Assault on Garcia.

       Defendant contends that the trial court abused its discretion in admitting the

May 12 incident involving Garcia on the issues of perpetrator identity and common plan

or scheme. At trial, however, he objected to the evidence solely on two grounds: first,

that because Garcia lacked credibility, the prosecution could not prove by a

preponderance of the evidence that the incident occurred; and second, on grounds of

                                             25
undue prejudice under Evidence Code section 352. The court rejected the first argument,

stating that the witness‟s credibility was for the jury to decide. As to the second, the

court held that the evidence “that the day before or two days before the homicide the

defendant uses the same technique—zip ties, gun to the head, threats—is highly probative

and it outweighs the prejudicial effect.” Defense counsel did not disagree that the

evidence was relevant under section 1101(b). Rather, she argued only that it was so

prejudicial as to outweigh its probative value, in that “[o]nce the jury believes that

[defendant] has had zip ties in the past . . . that‟s an automatic conviction.”11




       11  In his opening brief, defendant notes that the jury was instructed that it could
consider the evidence of an unspecified incident that occurred between defendant and
Garcia solely on the issues of defendant‟s identity as the perpetrator in this case and
whether or not he had a common plan or scheme. He then contends that none of the
circumstances of the prior incident, including the use of zip ties, is sufficiently distinctive
to qualify as evidence of identity under section 1101(b), nor are the common features of
the prior incident and the homicide sufficient to give rise to an inference of a common
plan or scheme.
       Because defendant did not object on either ground below, neither contention is
cognizable: Under California law, an error in admitting evidence may not be the basis for
reversing a judgment or setting aside a verdict unless “an objection to or a motion to
exclude or to strike the evidence . . . was timely made and so stated as to make clear the
specific ground of the objection or motion.” (Evid. Code, § 353, subd. (a).) “„In
accordance with this statute, we have consistently held that the “defendant‟s failure to
make a timely and specific objection” on the ground asserted on appeal makes that
ground not cognizable. [Citations.]‟ [Citation.] Although no „particular form of
objection‟ is required, the objection must „fairly inform the trial court, as well as the party
offering the evidence, of the specific reason or reasons the objecting party believes the
evidence should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling.‟ [Citation.]” (People v.
Zamudio (2008) 43 Cal.4th 327, 354.)
                                              26
       “Evidence of uncharged offenses „is so prejudicial that its admission requires

extremely careful analysis. [Citations.]‟ [Citations.] „Since “substantial prejudicial

effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they

have substantial probative value.‟ [Citation.] [¶] . . . [T]o be admissible such evidence

„must not contravene other policies limiting admission, such as those contained in

Evidence Code section 352. [Citations.]‟” (People v. Ewoldt (1994) 7 Cal.4th 380, 404.)

Nevertheless, a trial court has broad discretion in determining whether evidence should

be excluded under Evidence Code section 352. (People v. Gionis (1995) 9 Cal.4th 1196,

1214.) A decision will not be reversed merely because reasonable people might disagree,

and an appellate court is not authorized to substitute its judgment for that of the trial

court. An exercise of discretion “„grounded in reasoned judgment and guided by legal

principles and policies appropriate to the particular matter at issue‟” must be upheld on

appeal. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) On

appeal, the burden is on the appellant to show clearly how the ruling was an abuse of

discretion. (Ibid.)

       Defendant argues that the May 12 incident was inflammatory because it “branded

[him] a dangerous criminal predisposed to committing violent crimes.” He argues that it

was especially inflammatory because the victim was his pregnant “common law wife”

and the incident involved a threat not only to her but also to his unborn child. However,

because prior crimes evidence is inherently inflammatory and prejudicial (People v.

Ewoldt, supra, 7 Cal.4th at p. 404), to say that this evidence was inflammatory does not

amount to a reasoned argument as to why it was an abuse of discretion to admit it.

                                              27
       Under Evidence Code section 352, “prejudice” applies to evidence which

“„“uniquely tends to evoke an emotional bias against the defendant as an individual and

which has very little effect on the issues.”‟” (People v. Gionis, supra, 9 Cal.4th at

p. 1214.) Here, the May 12 incident had a significant effect on the issues in part because

Garcia‟s testimony served to corroborate the testimony of Chavarria. As an accomplice

who got a deal for testifying, Chavarria‟s credibility was questionable.

       Garcia‟s description of defendant‟s abuse of her on the morning before the killing,

if believed, corroborated Chavarria‟s testimony that defendant was angry while they were

waiting for Torres and also supports the prosecution‟s theory that defendant did not kill

Torres on the spur of the moment but rather as part of a premeditated scheme. Garcia‟s

testimony was also significant because it showed that despite defendant‟s statement to the

police that he was not angry at Torres because of the rumor, defendant most certainly was

not “over” the rumors that Torres had raped Garcia. Because the May 12 incident with

Garcia had significant probative value, it was not an abuse of discretion to admit it.

       The March 2006 Domestic Violence Incident.

       Garcia testified that in March 2006, defendant questioned her about a rumor that

she had had sex with his friend, Gordi. Defendant beat her up, using a gun to beat her.

Garcia reported the incident to police.

       The prosecutor sought permission to elicit testimony from Garcia concerning that

incident if, during cross-examination, the defense sought to discredit Garcia because of

discrepancies between her trial testimony and statements she made to police in May 2006

or between her statements to police in 2009 and her statements in 2006. The prosecutor

                                             28
argued that the evidence was admissible to explain that Garcia was afraid of defendant

because of the domestic violence incident in March 2006 and was therefore not willing to

tell the police what had actually happened on May 13, 2006. Defense counsel objected

that under section 1101(b) the facts of the prior incident were too dissimilar to be

probative, and argued that her research had failed to disclose any cases which hold that

evidence of prior domestic violence could be introduced involving a witness who was not

the victim in the current case. The court ruled that if the defense cross-examined Garcia

about her inconsistent statements, the prior domestic violence evidence was admissible

for the purpose of explaining why her statements were inconsistent.

       Rather than waiting for cross-examination about Garcia‟s inconsistent statements,

the prosecutor questioned Garcia on direct examination about the March 2006 domestic

violence incident. The defense did not object or request a limiting instruction.

       Defendant now contends that the trial court abused its discretion in admitting the

evidence and not giving a limiting instruction.

       There was no abuse of discretion in ruling the March 2006 domestic violence

incident was admissible for the purpose stated by the court, i.e., to explain that Garcia‟s

fear of defendant caused her to make false statements, giving defendant an alibi and

failing to tell the police what she saw on the night of May 13, when she was questioned

in 2006 about Torres‟s murder. Evidence of prior crimes or acts of misconduct is

admissible when it is relevant to prove some material fact at issue, other than the

defendant‟s propensity to commit crimes. (§ 1101(b).) The material facts referred to in



                                             29
section 1101(b) are not limited to the specific facts enumerated in the statute. Rather, the

facts at issue may include the state of mind of a witness or victim.

       In People v. Solis (1985) 172 Cal.App.3d 877, a prosecution for rape, the

defendant asserted that the alleged victim had consented to sexual intercourse with him.

The court held that evidence of prior acts of violence committed by the defendant was

admissible because the victim‟s knowledge of those incidents was relevant to

determining whether she freely consented or consented out of fear of the defendant.

(Id. at pp. 881, 885-886.) Here, as the trial court concluded, the domestic violence

evidence was relevant to explain Garcia‟s 2006 statements to the police and was relevant

to her credibility. And, for the reasons stated above, there was no abuse of discretion

under Evidence Code section 352 in finding the evidence more probative than prejudicial.

       Defendant also contends that the trial court‟s failure to give a limiting instruction

on the use of the 1101(b) evidence was prejudicial error. The record does not show that

the defendant requested any limiting instruction beyond that which is contained in




                                             30
CALCRIM No. 375.12 In the absence of a request, a trial court is not required to give a

limiting instruction on the use of section 1101(b) evidence. (People v. Maury (2003) 30

Cal.4th 342, 397, fn. 11.)

       Defendant contends that during the conference on jury instructions, the trial court

“reaffirmed its ruling and concluded there was no need for an Evidence Code 1101

limiting instruction.” This appears to imply that he requested a limiting instruction,

which the court refused. The record refutes this. During the conference, the court

affirmed its ruling that the March 2006 domestic violence incident was admissible to

explain why Garcia might not have wanted to be truthful with the police when she was

questioned in 2006. The court went on to state that the incident was “[not] necessarily

1101(b) evidence,” although “some paragraphs” of the standard instruction on the use of

       12  As given in this case, CALCRIM No. 375 states:
          “Evidence was introduced regarding an incident that occurred between Andrea
Garcia and the defendant, Mr. Rodriguez. You may consider this evidence only if the
People have proved by a preponderance of the evidence that the defendant in fact
committed the uncharged acts. Proof by a preponderance of the evidence is a different
burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance
of the evidence if you conclude that it is more likely than not that the fact is true.
          “If the People have not met this burden, you must disregard this evidence entirely.
          “If you decide that the defendant committed the acts, you may, but are not
required to, consider that evidence for the limited purpose of deciding whether or not:
          “The defendant was the person who committed the offense alleged in this case or
          “The defendant had a plan or scheme to commit the offense alleged in this case.
          “In evaluating this evidence, consider the similarity or lack of similarity between
the uncharged acts and the charged offense.
          “Do not consider this evidence for any other purpose.
          “Do not conclude from this evidence that the defendant has a bad character or is
disposed to commit crime.
          “If you conclude that the defendant committed the acts, that conclusion is only one
factor to consider along with all the other evidence. It is not sufficient by itself to prove that
the defendant is guilty of murder. The People must still prove the charge and allegations
beyond a reasonable doubt.”
                                              31
Evidence Code section 1101(b) evidence might apply. However, upon the request of

defense counsel for additional time to review the instruction, the court agreed that further

discussion as to the instruction would occur later. The court did not conclude at that time

that there was no need for a limiting instruction.

       As far as we are aware, there is no further discussion on the record concerning the

instruction, and we have not found either a request by the defense for any further limiting

instruction beyond that found in the standard instruction, or for a pinpoint instruction

explaining the particular issue as to which the domestic violence incident was relevant.

Clarifying instructions or pinpoint instructions are required, if at all, only upon request.

(People v. Estrada (1995) 11 Cal.4th 568, 581; People v. Hughes, supra, 27 Cal.4th at

p. 361.) Accordingly, the omission of any further limiting instruction was not error.

                                              7.

                              KIDNAPPING INSTRUCTION

       Defendant contends that the kidnapping instruction given to the jury “incorrectly

defined the crime, confused the doctrines of „fear‟ and „consent,‟ and permitted the jury

to erroneously conclude that kidnapping may be based solely on „verbal coercion.‟”

(Arguments XI and XII.)

       Defendant did not challenge the kidnapping instruction in the trial court.

However, a defendant may assert instructional error on appeal if the error affected his or

her substantial rights. (§ 1259.) We review claims of instructional error de novo.

(People v. Cole (2004) 33 Cal.4th 1158, 1210.)



                                              32
       Any Error in the Kidnapping Instruction with Respect to Force Was Not

Prejudicial.

       Using CALCRIM No. 1215, the court defined the elements of kidnapping in the

following terms: “1. The defendant took, held, or detained another person by using force

or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved the

other person or made the other person move a substantial distance; [¶] AND [¶] 3. The

other person did not consent to the movement.” Section 207, subdivision (a), however,

provides: “Every person who forcibly, or by any other means of instilling fear, steals or

takes, or holds, detains, or arrests any person in this state, and carries the person into

another country, state or county, or into another part of the same county, is guilty of

kidnapping.” (Italics added.) Defendant contends that the kidnapping instruction

improperly disassociates force from fear and permits a conviction based on a finding that

the defendant used force alone to compel the victim‟s movement. He cites In re Michele

D. (2002) 29 Cal.4th 600 and People v. Majors (2004) 33 Cal.4th 321 for the proposition

that if the alleged victim is capable of consenting to movement and of resisting force, it is

necessary to show that the defendant used force as a means of instilling fear.

       In In re Michele D., supra, 29 Cal.4th 600, the court held that although the

language of section 207, subdivision (a) implies that “something more than the quantum

of physical force necessary to effect movement of the victim from one location to

another,” namely fear, is generally required for a conviction for kidnapping, in the case of

an infant or a child who is too young to give or withhold consent, it is sufficient if the



                                              33
child is asported for an improper purpose.13 (Id. at pp. 606-609.) Similarly, in People v.

Majors, supra, 33 Cal.4th 321, the court held that since the 1990 amendment which

added the phrase “„or by any other means of instilling fear,‟” the concepts of force and

fear are intertwined in section 207, subdivision (a), and implied, at least, that force which

is not objectively sufficient to instill fear does not suffice. (Id. at pp. 326-327, 331.)

Consequently, by stating that kidnapping may be committed by “force or fear” rather than

“„by force or by any other means of instilling fear,‟” CALCRIM No. 1215 is incorrect.

       Nevertheless, the error does not require reversal. An instructional error that

relieves the prosecution of the burden of proving beyond a reasonable doubt each

essential element of the charged offense, or that improperly describes or omits an element

of an offense, violates the defendant‟s rights under both the United States and California

Constitutions, and is subject to review under Chapman v. California (1967) 386 U.S. 18,

24 (Chapman). (People v. Larsen (2012) 205 Cal.App.4th 810, 829.) Under Chapman,

reversal is required unless the reviewing court can say beyond a reasonable doubt that the

error did not contribute to the verdict. (Chapman, at p. 24.)

       Here, Chavarria testified that defendant had a revolver and that when defendant

and Torres arrived at the church parking lot, Torres‟s hands were bound with zip ties.

This is a circumstance which would cause an objectively reasonable fear of bodily harm,

and a juror who believed Chavarria‟s testimony would not have found otherwise.

Moreover, there was no evidence that defendant caused Torres to accompany him by

       13  “The conjoining of force with fear in section 207—„[e]very person who
forcibly, or by any other means of instilling fear‟—suggests as much.” (In re Michele D.,
supra, 29 Cal.4th at p. 606.)
                                              34
means of force which was not objectively sufficient to instill fear. The only other theory

supported by the evidence was that Torres accompanied defendant voluntarily. Michele

Valenzuela testified that Torres‟s hands were not bound when he left the laundry room

and that he walked away with defendant after defendant said, “If you have nothing to

hide, then come with me.” She did not see that Torres‟s hands were bound, although she

believed that from her vantage point, she would have seen that his hands were bound if

that were the case. She also did not see a gun. She did not perceive Torres to be in any

danger. Valenzuela‟s testimony supports either the conclusion that Torres went

voluntarily with defendant or, perhaps, that Torres went out of fear that defendant would

shoot him if he did not go with him, based on Torres‟s statement, “[I]f you are going to

shoot me, then shoot me.” Neither interpretation of Valenzuela‟s testimony supports the

inference that defendant used force which did not instill fear. Consequently, there is no

reasonable likelihood that the jury based the kidnapping finding on the use of force which

did not instill fear. Accordingly, we are convinced beyond a reasonable doubt that the

instructional error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.)

       The Kidnapping Instruction Adequately Defined Fear.

       Defendant also contends that the instruction, which stated that kidnapping can be

committed by “instilling reasonable fear,” was insufficient because it failed to inform the

jury of the nature of the fear which is required. He contends that you must instill fear of

some serious consequence, such as death or serious injury.

       Although defendant is correct that the threat must be to impose some serious

consequence, a threat of physical harm is not required. In People v. Majors, supra, 33

                                             35
Cal.4th 321, for example, the court held that “an implicit threat of arrest satisfies the

force or fear element of section 207(a) kidnapping if the defendant‟s conduct or

statements cause the victim to believe that unless the victim accompanies the defendant,

the victim will be forced to do so, and the victim‟s belief is objectively reasonable.”

(Id. at p. 331.)

       As given in this case, the kidnapping instruction adequately informed the jury that

the victim‟s movement must be induced by an objectively reasonable fear. If defendant

wished clarification or amplification, it was his burden to request it. In the absence of a

request, the court was not required to give any further instruction. (People v. Estrada,

supra, 11 Cal.4th at p. 574; People v. Hughes, supra, 27 Cal.4th at p. 361.)

       The Court Properly Instructed the Jury on Consent.

       Defendant contends that the kidnapping instruction erroneously included lack of

consent as a separate element of kidnapping.

       Although defendant is correct that “consent” does not appear in the statutory

definition of kidnapping, consent is “inextricably intertwined” with the elements of force

and fear, in that the gravamen of the offense is asportation against the victim‟s will.

(People v. Majors, supra, 33 Cal.4th at pp. 326-327, 331.) Consequently, although lack

of consent is not explicitly an element of the offense as defined by statute, it is

nevertheless part of the prosecution‟s burden to prove that the asportation was against the

victim‟s will, i.e., without consent. Moreover, consent is a defense to kidnapping, and a

trial court has a sua sponte duty to instruct on that defense if the evidence warrants it and

it appears that the defendant is relying on it. (People v. Davis (1995) 10 Cal.4th 463,

                                              36
516-518.) Here, defendant contends that the evidence did not show that Torres

unwillingly accompanied him from the laundry room but rather showed that he went

voluntarily. Consequently, the instruction on consent was mandatory.

       Defendant also contends that the kidnapping instruction erroneously allowed the

jury to conclude that “anything that the jury perceives as interfering with the person

acting freely and voluntarily may constitute lack of consent.” He does not elaborate on

this contention, and we may accordingly deem it forfeited. (People v. Weaver (2001) 26

Cal.4th 876, 986-987 [court need not consider contentions of error unaccompanied by

legal argument].) Nevertheless, we note that the instruction correctly stated the general

principles of law applicable to a defense of consent.14 Again, if defendant had wished for

clarification or for a pinpoint instruction relating the general principles to the facts of this

case, he was required to request it. (People v. Estrada, supra, 11 Cal.4th at p. 581;

People v. Hughes, supra, 27 Cal.4th at p. 361.)

                                               8.


       14  The kidnapping instruction stated, “In order to consent, a person must act freely
and voluntarily and know the nature of the act. [¶] . . . [¶] The defendant is not guilty of
kidnapping if the other person consented to go with the defendant. The other person
consented if he (1) freely and voluntarily agreed to go with or be moved by the
defendant, (2) was aware of the movement, and (3) had sufficient maturity and
understanding to choose to go with the defendant. The People have the burden of
proving beyond a reasonable doubt that the other person did not consent to go with the
defendant. If the People have not met this burden, you must find the defendant not guilty
of this crime.
        “Consent may be withdrawn. If, at first, a person agreed to go with the defendant,
that consent ended if the person changed his or her mind and no longer freely and
voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of
kidnapping if after the other person withdrew consent, the defendant committed the crime
as [the court has] defined it.”
                                               37
     THE COURT‟S RESPONSE TO A JURY QUESTION WAS APPROPRIATE

       During deliberations, the jury submitted the following question to the court:

“„If you‟re going to shoot me‟ Verbal coercion? [Sic.] Is that an element of

kidnapping—reasonable fear? Without visual proof of a gun?” After discussion with the

parties and the approval of the defense, the court replied, “The elements for kidnapping

are listed in CALCRIM No. 1215. The remaining questions are questions of fact that

must be determined by the jury.”

       Defendant now contends that the court should have instructed the jury that “verbal

coercion” is not an element of kidnapping. He also contends that the court should have

amplified its previous instruction on the definition of fear and should have instructed the

jury that “verbal coercion, moral coercion, deceit, fraud and trickery were insufficient to

support a finding of kidnapping.”

       A trial court has a duty to clear up any “instructional confusion” expressed by the

jury. (People v. Beardslee (1991) 53 Cal.3d 68, 97; § 1138.) However, this does not

mean that the court must elaborate on the standard instructions. Where the instructions

are full and complete, “the court has discretion . . . to determine what additional

explanations are sufficient to satisfy the jury‟s request for information.” (People v.

Beardslee, at p. 97.) Here, the court‟s response was not an abuse of discretion. The

jury‟s question asked whether the “verbal coercion” implicit in Torres‟s statement,

“[I]f you are going to shoot me, then shoot me,” satisfied the element of force or fear in

the absence of evidence that defendant displayed a gun. The court‟s response was

correct—it was a question of fact whether the statement was sufficient to support the

                                             38
inference that defendant had a gun, or whether Torres thought he did, and whether Torres

acted out of an objectively reasonable fear of harm in leaving the laundry room with

defendant.

       Defendant‟s remaining contentions, that the court should have elaborated on its

definition of fear and should have explained the interplay between fear and consent, have

already been addressed—if defendant had wished for clarification or for a pinpoint

instruction relating the general principles of the law of kidnapping to the facts of this

case, he was required to request it. (People v. Estrada, supra, 11 Cal.4th at p. 581;

People v. Hughes, supra, 27 Cal.4th at p. 361.)

                                              9.

                                   MISTAKE OF FACT

       A person is not guilty of an offense if he or she acted under a mistake of fact

which disproves any criminal intent. (§ 26, par. Three.) A mistake of fact occurs when a

person perceives facts differently from how they really exist. (People v. Williams (1992)

4 Cal.4th 354, 361-362.) A mistaken belief that the alleged victim of a kidnapping

consented to be moved may be a defense to a kidnapping charge. (People v. Mayberry

(1975) 15 Cal.3d 143, 155-156, 157.) Here, the defense sought only to raise a reasonable

doubt as to Torres‟s actual consent. However, defendant contends that even though he

did not rely on a mistake of fact defense at trial, the court was nevertheless obligated to

instruct the jury on that defense because the evidence warranted it.

       Mistake of fact, often called the Mayberry defense, requires a showing both that it

was objectively reasonable to believe that the victim consented and that the defendant

                                             39
actually believed that the victim consented. (People v. Mayberry, supra, 15 Cal.3d at

pp. 155-157.) If the defendant did not rely on mistake of fact and did not request the

instruction, the trial court nevertheless has a duty to instruct the jury on the defense if the

instruction does not conflict with the defendant‟s theory of the case and there is

substantial evidence of facts “that would have led a defendant to reasonably and in good

faith believe consent existed where it did not.” (People v. Williams, supra, 4 Cal.4th at

p. 362.)

       The Attorney General contends that the trial court was not required to instruct on

mistake of fact in the absence of a request because the defense is not a special defense but

merely seeks to negate an element of the charged offense. Consequently, she contends,

the instruction is a pinpoint instruction required only upon request. She bases this

contention on People v. Anderson (2011) 51 Cal.4th 989 (Anderson).

       In Anderson, addressing the defendant‟s contention that the trial court had a sua

sponte duty to instruct on accident as negating criminal intent, the court stated that a trial

court‟s duty to instruct sua sponte extends to “instructions on the defendant‟s theory of

the case, including instructions as to defenses that the defendant is relying on . . . or if

there is substantial evidence supportive of such a defense and the defense is not

inconsistent with the defendant‟s theory of the case. [Citation.] But when a defendant

presents evidence to attempt to negate or rebut the prosecution’s proof of an element of

the offense, a defendant is not presenting a special defense invoking sua sponte

instructional duties. While a court may well have a duty to give a „pinpoint‟ instruction

relating such evidence to the elements of the offense and to the jury‟s duty to acquit if the

                                              40
evidence produces a reasonable doubt, such „pinpoint‟ instructions are not required to be

given sua sponte and must be given only upon request. [Citation.]” (Anderson, supra, 51

Cal.4th at pp. 996-997 [most internal quotation marks omitted for clarity; some italics

added].)

       Contrary to the Attorney General‟s position, however, the Mayberry defense is a

special defense. The evidence that the defendant believed that the victim consented is not

directed at negating the element of lack of actual consent; rather, the defense

acknowledges that the victim did not actually consent but seeks to prove that the

defendant acted without the required criminal intent because of his or her erroneous but

objectively reasonable belief that the victim did consent. (People v. Williams, supra,

4 Cal.4th at p. 362.) Accordingly, Anderson has no bearing on this issue.15

       Here, there was substantial evidence which meets the objective prong of

Mayberry. Michele Valenzuela testified that after she heard Torres say, “[I]f you are

going to shoot me, then shoot me,” Torres and defendant came out of the laundry room.

Defendant put his arm around Torres, and they walked away together. Valenzuela

testified, contrary to Chavarria‟s testimony, that Torres‟s wrists were not bound. He did

not ask Valenzuela for any help. Valenzuela‟s testimony rationally supports the




       15  We note that in Anderson, the court did not discuss nearly 40 years of
precedent, beginning with Mayberry, that an instruction on mistake of fact to negate
criminal intent must be given, even in the absence of a request, if the evidence supports
the instruction and it does not conflict with the defendant‟s theory of the case. We will
assume that if the court had intended to disapprove the Mayberry line of cases, it would
have said so.
                                             41
conclusion that Torres actually went willingly with defendant. Certainly, Valenzuela

herself did not believe that Torres was acting under duress.

       To meet the subjective prong of Mayberry, the defendant must produce, or point

to, some evidence of the victim‟s equivocal conduct that led him reasonably to believe

that the victim consented to the act when in fact the victim did not consent. (People v.

Williams, supra, 4 Cal.4th at pp. 361-362.) The evidence may come from the defense or

from the prosecution. (Id. at p. 361.)

       Here, defendant contends that Michele Valenzuela‟s testimony that Torres

appeared to be leaving voluntarily and defendant‟s statement to the police that Torres

went with him voluntarily support the conclusion that defendant believed that Torres

consented to accompany him. However, the essence of the subjective prong of Mayberry

is evidence of equivocal conduct by the alleged victim which led the defendant to believe

that the victim consented when he or she did not. (People v. Williams, supra, 4 Cal.4th at

p. 362.) Here, in his statement to the police, defendant denied that Torres said, “If you‟re

gonna shoot me, shoot me.” He stated that Torres came with him voluntarily. This

evidence, if believed, establishes that Torres actually consented; it does not show

equivocal conduct by Torres that caused defendant to perceive facts differently from how

they really existed. (People v. Williams, at pp. 361-362.)

       Valenzuela‟s testimony, however, arguably does show equivocal conduct by

Torres: She testified that Torres first expressed a fear that defendant was going to shoot

him, and then accompanied defendant with no indication that he was acting under duress.

Nevertheless, this does not mean that Torres‟s conduct was equivocal from defendant’s

                                             42
point of view. If defendant did threaten Torres with a gun, then defendant knew that

Torres was not accompanying him voluntarily. If defendant did not threaten Torres and

Torres did express a desire to come with defendant to talk about the rumor, as defendant

said in his police interview, then Torres actually consented. This does not amount to

substantial evidence which would support the subjective prong of the Mayberry defense.

Accordingly, the court did not have a duty to give the instruction.

                                            10.

     A UNANIMITY INSTRUCTION ON KIDNAPPING WAS NOT REQUIRED

       Defendant contends that the trial court committed reversible error by failing to

give a unanimity instruction with respect to kidnapping felony murder and the kidnapping

special circumstance. He contends that there were at least six separate acts, each of

which could have supported a finding that defendant kidnapped Torres:

       “The first movement was from the laundry room to the apartment complex

location where Michele Valenzuela could see him, especially if Torres‟ wrists were zip-

tied. But Michele testified Torres‟ hands were not bound when he left the laundry room.

At the same time, even if Torres was not forcibly restrained, movement based on „fear‟

was a possibility based on Torres‟ laundry room statement. In sum, this first movement

could be based on force, fear or voluntary choice (i.e. Michele‟s yelling to take their

business elsewhere).

       “The second act could be based on movement from the apartment complex to the

church parking lot. Michele testified she heard defendant tell Torres, „If you have

nothing to hide, then come with me.‟ (2 RT 295-296.) This movement, like the first

                                             43
movement, could therefore be based on fear—the laundry room statement—or voluntary

consent.

        “The third act could be based on movement after defendant and Torres left the

apartment complex, but before they reached the church parking lot. According to

accomplice Chavarria‟s testimony, Torres arrived at the parking lot already bound with

zip ties. Therefore, jurors could reason that at some point in time Torres was zip-tied

after leaving the apartment complex but before reaching the church parking lot. This

interpretation of the evidence would be consistent with Michele‟s testimony that Torres

was not bound when he left the apartment complex.

       “The fourth act could be based on movement from the church parking lot to

defendant‟s apartment after Torres was zip-tied at the church parking lot. Amanda

Valenzuela saw defendant, Torres and Chavarria walking side-by-side-by side [sic]

toward the church, which directly contradicted Chavarria‟s testimony that he was walking

in front of defendant and Torres and reached the church parking lot before them. Jurors

knew that Chavarria downplayed his involvement and they could reasonably conclude,

consistent with both Michele‟s and Amanda‟s testimony, that Torres was not bound with

zip ties until after he reached the parking lot.

        “The fifth act could be based on movement at defendant‟s apartment complex

and/or within defendant‟s apartment after Torres was zip-tied either at or inside

defendant‟s apartment. The jury, as previously noted, could reject accomplice

Chavarria‟s testimony that Torres was zip-tied before he reached defendant‟s apartment

based on the testimony of Michele and Amanda and defendant‟s statement to Torres,

                                              44
„If you have nothing to hide, then come with me.‟ (2 RT 295-296.) Further, there was no

corroboration of Chavarria‟s testimony concerning when Torres was zip-tied. It would

be reasonable to assume that defendant would continue to act consistently with his

„nothing-to-fear‟ statement, especially if that is what prompted Torres to leave the

apartment complex, and he would not have zip-tied Torres until the last possible moment.

       “The sixth separate and distinct act could be based on movement at defendant‟s

apartment complex and/or within the apartment after Torres left the church parking lot

without defendant. Based on the testimony of Michele and Amanda and defendant‟s

statements to police, jurors could conclude that Torres voluntarily went with defendant,

they talked at the church parking lot, they separated, and Torres subsequently went to

defendant‟s apartment based on defendant‟s invitation. Jurors could therefore conclude

Torres was zip-tied at or in defendant‟s apartment and movement from the front room to

the bedroom constituted forcible movement within the meaning of the kidnapping

instructions. During closing arguments, the prosecutor actually argued that Torres‟

movement into the bedroom came within the definition of kidnapping. (4 RT 908.)”

       Defendant bases his contention on the general principle that a criminal defendant

is entitled to a unanimous verdict finding the defendant guilty of a specific crime. “In a

criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury

must agree unanimously the defendant is guilty of a specific crime. [Citation.]

Therefore, cases have long held that when the evidence suggests more than one discrete

crime, either the prosecution must elect among the crimes or the court must require the



                                            45
jury to agree on the same criminal act.[16] [Citations.] [¶] This requirement of

unanimity as to the criminal act „is intended to eliminate the danger that the defendant

will be convicted even though there is no single offense which all the jurors agree the

defendant committed.‟ [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)

Accordingly, a unanimity instruction is required if the jurors could disagree on which of

two or more discrete acts constituted the offense and yet convict the defendant of the

crime charged. (People v. Davis (2005) 36 Cal.4th 510, 560-561.)

       The Attorney General dismisses defendant‟s contention by observing that

kidnapping is a continuous offense: “„As long as the detention continues, the crime [of

kidnapping] continues.‟ [(People v. Cortez (1992) 6 Cal.App.4th 1202, 1209.)]” This is

correct, as far as it goes: Once defendant unlawfully moved Torres a substantial distance

by force or fear and without his consent, a kidnapping occurred and did not end until

Torres was killed. It does not address defendant‟s contention, however, that the evidence

permits multiple conclusions as to when the kidnapping began.

       Here, although we agree with defendant that the evidence permits many different

conclusions as to when the kidnapping actually commenced, a unanimity instruction was

not required. A requirement of unanimity typically applies to acts which could have been

charged as separate offenses. (People v. Beardslee, supra, 53 Cal.3d at p. 92.) “On the

       16  At oral argument, the Attorney General stated that the prosecutor did make an
election, relying on the theory that Torres left the laundry room under compulsion
because defendant threatened him with a gun. However, to satisfy the requirement of an
election, the jury must be explicitly informed that the prosecutor has chosen to rely on a
particular act to constitute the crime and that the jury can find the defendant guilty only if
the jurors unanimously agree that the defendant committed that act. (People v. Melhado
(1998) 60 Cal.App.4th 1529, 1534-1536.) The jury in this case was not so instructed.
                                             46
other hand, where the evidence shows only a single discrete crime but leaves room for

disagreement as to exactly how that crime was committed or what the defendant‟s precise

role was, the jury need not unanimously agree on the basis or, as the cases often put it,

the „theory‟ whereby the defendant is guilty. [Citation.]” (People v. Russo, supra, 25

Cal.4th at p. 1132.) Stated another way, “a unanimity instruction is not required if the

evidence shows only a single crime, albeit committed in several possible ways.” (People

v. Wolfe (2003) 114 Cal.App.4th 177, 185 [Fourth Dist., Div. Two] and cases cited.) In

summary, discrete crimes require unanimity instructions; theories of the case do not.

Here, although the evidence reveals several possible theories as to how the kidnapping

was committed, there is no evidence which would have allowed the district attorney to

charge defendant with more than one kidnapping because, regardless of when the

kidnapping commenced, it continued until Torres was murdered.

                                            11.

         FAILURE TO INSTRUCT ON INVOLUNTARY MANSLAUGHTER

       Involuntary manslaughter is the unlawful killing of a human being without malice

“in the commission of an unlawful act, not amounting to felony; or in the commission of

a lawful act which might produce death, in an unlawful manner, or without due caution

and circumspection.” (§ 192, subd. (b).) Defendant contends that the trial court

prejudicially erred by failing to instruct the jury on involuntary manslaughter, on the

theory that defendant was criminally negligent in allowing Chavarria, a known gang

member, to confront Torres with a gun while defendant himself was lawfully engaged in



                                             47
questioning Torres about the rape rumor. If the jury concluded that Chavarria shot

Torres, then it could convict defendant of involuntary manslaughter on that theory.

       There is no evidence that defendant was engaged in “a lawful act which might

produce death,” with or without due caution or circumspection. Merely questioning

someone is a lawful act, but it is not one which might produce death. Moreover, there is

no evidence that defendant was merely questioning Torres: He had either kidnapped

Torres or he had falsely imprisoned him in the apartment in order to question him.

Neither kidnapping nor false imprisonment is a lawful act. If there is no evidence to

support an instruction on a lesser included offense, the trial court has no duty to give the

instruction. (People v. Breverman (1998) 19 Cal.4th 142, 154.)

       There was also no evidence whatsoever from which jurors could conclude that

Chavarria, rather than defendant, shot Torres. Jurors could disbelieve Chavarria‟s

version of the events, but that disbelief would not justify the conclusion that Chavarria

shot Torres. At most, it permits a not guilty verdict because of insufficient evidence that

defendant shot and killed Torres. Consequently, for this reason as well, the evidence

does not support an instruction on involuntary manslaughter.




                                             48
                                             12.

                           PROSECUTORIAL MISCONDUCT

       Defendant contends that the prosecutor committed two acts of prejudicial

misconduct: When he deliberately elicited evidence that Chavarria was a gang member,

after the court had ruled that there was to be no mention of gangs; and when he argued to

the jury that Torres‟s statement, “[I]f you are going to shoot me, then shoot me,” proved

that defendant displayed a gun to Torres in the laundry room.

       As to the laundry room statement, we have previously concluded that Torres‟s

statement was admissible as circumstantial evidence that defendant displayed a gun in the

laundry room. (See § 1, ante.) Accordingly, the prosecutor‟s argument to that effect was

not misconduct.

       As to the gang evidence, eliciting inadmissible testimony is prosecutorial

misconduct. (People v. Tully (2012) 54 Cal.4th 952, 1035.) This is true even if the error

was inadvertent. (People v. Hill (1998) 17 Cal.4th 800, 822-823.) Here, during motions

in limine, the parties agreed that this was not a “gang case,” in that the allegation that the

crime was committed in furtherance of the interests of a criminal street gang (§ 186.22,

subd. (b)) had been dropped from the information. The prosecutor stated that he did not

intend to suggest to the jury in any way that it was a gang case. The court did not, at that

time, specifically order the parties not to mention gangs during the trial, but it appears

from the record that both parties understood that this was the court‟s intention. However,

when defense counsel noted that the local press had been referring to it as a “gang case,”

the court agreed that during voir dire counsel could state to the prospective jurors that

                                              49
regardless of what they might have seen in the press, this was not a gang case. The court

placed no limitations on the parties with respect to how they addressed the issue in voir

dire.

        During the trial, the court reiterated that there was to be no mention of gangs.

Nevertheless, during his direct examination of Chavarria, the prosecutor asked Chavarria

about his criminal record, including the following: “And then a misdemeanor offense

with that same incident [felony evading a police officer in 2009] of being an active

participant in a criminal street gang?” Chavarria replied, “Yes, that is correct.”

        Defendant did not object or seek to have the answer stricken. Shortly afterward,

during a conference in chambers, the court chastised the prosecutor for ignoring the

court‟s prior order. Defense counsel did not request any curative action by the court.

        As defendant acknowledges, to preserve a claim of prosecutorial misconduct for

appellate review, the defendant must make a contemporaneous objection and ask the trial

court to admonish the jury to disregard the impropriety, or seek a mistrial. (People v.

Carrera (1989) 49 Cal.3d 291, 321.) The requirement is waived if an objection would

have been futile or an admonition would not cure the harm. (Ibid.) Defendant contends

that an admonition would not have cured the harm in this instance, in part because gang

evidence is inherently prejudicial and the admission of the evidence that Chavarria was a

gang member allowed the jury to speculate that defendant was a member of the same

gang. In addition, because defense counsel had informed the jury during voir dire that

this was not a gang case and that news reports to the contrary were incorrect, the



                                              50
erroneous admission of Chavarria‟s gang membership damaged the credibility of the

defense.

       Even if we assume that no objection or request for an admonition or a mistrial was

required, the misconduct does not require reversal.

       During voir dire, both attorneys discussed gang concepts with the prospective

jurors, as the trial court had allowed them to do. Defense counsel told the jurors that this

was “not a gang case.” The implication was that the crime was not gang-related, contrary

to what had been said in a local newspaper. She did not say that none of the witnesses

were gang members. Later, the prosecutor alluded to the possibility that one or more of

the witnesses were gang members: He asked one prospective juror if he or she would

automatically reject the testimony of a witness if there was evidence that the witness was

a gang member or had a felony record. The jury was thus aware that one or more

witnesses might be gang members and that they could not allow that fact to cause them to

automatically reject the witness‟s testimony. Upon hearing that Chavarria had a

misdemeanor conviction for gang participation, jurors undoubtedly realized that it was

Chavarria the prosecutor was talking about during voir dire, not defendant.

       Prosecutorial misconduct violates federal due process principles if it comprises a

pattern of conduct so egregious that it infects the trial, rendering it fundamentally unfair.

(People v. Clark (2011) 52 Cal.4th 856, 960.) Under California law, prosecutorial

misconduct which does not render the trial fundamentally unfair requires reversal if it is

reasonably probable that a result more favorable to the defendant would have occurred in

the absence of the misconduct. (People v. Martinez (2010) 47 Cal.4th 911, 955-956.)

                                             51
Here, the single mention of Chavarria‟s misdemeanor gang activity conviction did not

render the trial fundamentally unfair or result in prejudice under the California standard.

If the evidence of Chavarria‟s misdemeanor conviction had any effect on the trial, it is

more likely that it caused jurors to be skeptical of Chavarria‟s claim that he was more or

less a bystander to defendant‟s crime than it is to have caused otherwise unpersuaded

jurors to conclude that defendant was guilty.

                                             13.

  THE COURT WAS NOT REQUIRED TO INSTRUCT THAT HEAT OF PASSION

  CAN NEGATE INTENT TO KILL FOR PURPOSES OF THE FELONY-MURDER

                               SPECIAL CIRCUMSTANCE

       Defendant was charged with the special circumstance of murder while engaged in

the commission or attempted commission of a kidnapping. (§ 190.2, subd. (a)(17)(B).)

Defendant contends that the trial court should have instructed the jury that heat of passion

can negate the intent to kill required for the special circumstance. He acknowledges that

the California Supreme Court rejected that argument in People v. Hawkins (1995) 10

Cal.4th 920, but he contends that more recent Supreme Court decisions have called the

validity of Hawkins into question. He also contends that Hawkins created “intolerable

anomalies” which the court did not consider.

       Hawkins holds that although heat of passion can negate malice for purposes of

reducing a homicide from murder to voluntary manslaughter, it does not also negate the

intent to kill, which, it held, is an essential element of voluntary manslaughter:

“„Voluntary manslaughter is a willful act, characterized by the presence of an intent to

                                             52
kill, engendered by sufficient provocation and by the absence of premeditation,

deliberation and (by presumption of law) malice aforethought.‟ [Citation.] Accordingly,

a defendant who kills upon a sudden quarrel or in the heat of passion in the course of

committing a felony would still be found to have an intent to kill within the meaning of

our Carlos[17] decision, and the felony-murder special circumstance would still be

applicable to him.” (People v. Hawkins, supra, 10 Cal.4th at pp. 958-959.)

        Hawkins was abrogated, in part, by People v. Lasko (2000) 23 Cal.4th 101.

There, the court held that voluntary manslaughter does not necessarily include the intent

to kill, and held that an unintentional killing, committed while the defendant was acting

with a conscious disregard for life during a sudden quarrel or in the heat of passion, is not

murder but voluntary manslaughter. The court held that a person who kills during a

sudden quarrel or in the heat of passion lacks malice “regardless of whether there was an

intent to kill.” (Id. at pp. 108-110.) In People v. Blakeley (2000) 23 Cal.4th 82, the court

also held that a person who kills in unreasonable self-defense is guilty of voluntary

manslaughter, regardless of whether the killing is intentional or unintentional. (Id. at

pp. 87-91.)

       Although these decisions abrogate Hawkins to the extent that it held that intent to

kill is an essential element of voluntary manslaughter, Hawkins is nevertheless correct

that a sudden quarrel or in the heat of passion negates malice but not intent to kill:

Because intent to kill is irrelevant to a conviction for voluntary manslaughter, as held in

Blakeley and Lasko, it need not be negated in order for a homicide to be voluntary

       17   Carlos v. Superior Court (1983) 35 Cal.3d 131.
                                             53
manslaughter rather than murder. Consequently, defendant was not entitled to the

instruction on the negation of intent for purposes of the special circumstance.

                                            14.

                        THERE WAS NO CUMULATIVE ERROR

       Finally, defendant contends that even if none of the errors he asserts was

individually reversible, the cumulative effect of two or more such errors was sufficiently

prejudicial to require reversal.

       We have rejected almost all of defendant‟s claims of error. We found error in the

kidnapping instruction‟s definition of the element of force or fear, but found it harmless

beyond a reasonable doubt. Because there were no other errors, there is no basis for

finding the cumulative effect defendant asserts.




                                            54
                                THE PEOPLE‟S APPEAL18

                                              1.

             THE SENTENCE IS UNAUTHORIZED TO THE EXTENT THAT IT

                             STAYS VICTIM RESTITUTION

        Summary of the Issue.

        Section 1202.4 provides, in pertinent part, as follows:

        “(a)(1) It is the intent of the Legislature that a victim of crime who incurs an

economic loss as a result of the commission of a crime shall receive restitution directly

from a defendant convicted of that crime.

        “[¶] . . . [¶]

        “(f) Except as provided in subdivisions (q) and (r), in every case in which a victim

has suffered economic loss as a result of the defendant‟s conduct, the court shall require

that the defendant make restitution to the victim or victims in an amount established by

court order, based on the amount of loss claimed by the victim or victims or any other

showing to the court. If the amount of loss cannot be ascertained at the time of

sentencing, the restitution order shall include a provision that the amount shall be

determined at the direction of the court. The court shall order full restitution unless it

finds compelling and extraordinary reasons for not doing so and states them on the

record. . . .



        18On March 9, 2012, defendant filed a motion to dismiss the People‟s appeal.
The court has considered the motion and the opposition filed on April 16, 2012. The
motion to dismiss is denied.
                                              55
       “(1) The defendant has the right to a hearing before a judge to dispute the

determination of the amount of restitution. The court may modify the amount, on its own

motion or on the motion of the district attorney, the victim or victims, or the defendant.

If a motion is made for modification of a restitution order, the victim shall be notified of

that motion at least 10 days prior to the proceeding held to decide the motion.

       “(2) Determination of the amount of restitution ordered pursuant to this

subdivision shall not be affected by the indemnification or subrogation rights of a third

party. Restitution ordered pursuant to this subdivision shall be ordered to be deposited

to the Restitution Fund to the extent that the victim, as defined in subdivision (k), has

received assistance from the California Victim Compensation and Government Claims

Board pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of

Title 2 of the Government Code.” (Italics added.)

       Here, the probation report stated that the “Victim of Crime program” had provided

the victim‟s family $7,500 for funeral expenses. It recommended that the court order

defendant to pay restitution in that amount to the Victim Compensation Government

Claims Board, with interest at 10 percent a year.

       Defendant did not seek a hearing to dispute the amount of victim restitution, nor

did he dispute that the victim‟s family received $7,500 for funeral expenses. He did,

however, ask the trial court to order no victim restitution and no restitution fine or parole

revocation fine. He contended that because he was to be sentenced to life without the

possibility of parole, he would not be allowed to earn any money in prison. He also

stated that he has no existing funds out of which to pay restitution. Thus, his only source

                                             56
of funds during his incarceration would be money provided by his family or friends.

However, he stated, the Department of Corrections and Rehabilitation deducts 20 to 50

percent of an inmate‟s wages to pay restitution orders. This would include any funds

provided by defendant‟s family or friends. He stated that because of budgetary issues,

inmates are now being required to pay for their toiletries, such as soap, toothpaste,

shampoo and razors. His only source of funds for such necessities would be his friends

and family. Accordingly, defendant argued that a restitution order would effectively

place the burden for restitution on people other than defendant himself.

       Defendant also contended that this would constitute a compelling and

extraordinary reason for denying restitution. Further, because the Victim Compensation

and Government Claims Board is not a “victim” as defined by section 1202.4,

subdivision (k), defendant contended that the trial court should not make a restitution

order for the board‟s benefit.

       At the sentencing hearing, the court stated that it would impose victim restitution

in the recommended amount of $7,500 but would suspend it “on the chance that if he

does somewhere down the line get paroled.” If that happened, then defendant would “be

required to make that payment.”

       After further argument, the court imposed the sentence of life without the

possibility of parole and then stated, “I‟m going to impose the restitution of $7,500;

however, I‟m willing to suspend the imposition of that restitution fine unless [defendant]

is granted parole.” Upon a request by defense counsel for clarification, the court said,

“The restitution fine I‟m imposing. The restitution to the victim‟s [sic] compensation

                                             57
fund, I stayed that.” Upon further request by the defense, the court reduced the amount

of the restitution fine and parole revocation fine from $10,000 each to $1,000 each.

       The district attorney filed a timely notice of appeal from “the unlawful restitution

order” “pursuant to Penal Code section 1238, subdivision (a)(5).”19

       The Order Staying Restitution Is Appealable

       Defendant asserts that the restitution order is not appealable.

       First, he contends that the prosecution waived any objection by not raising it in the

trial court. However, the prosecution did oppose defendant‟s motion for no restitution.

Consequently, there was no waiver.

       Second, defendant contends that the prosecution had the burden to establish the

legitimacy of the award of $7,500 in restitution to the Victim Compensation Board, and

that its failure to do so waives the issues raised in the People‟s appeal. Defendant is

mistaken. With respect to a claim by a victim for economic losses, section 1202.4,

subdivision (f) does not require any specific form of proof. The court may accept the

victim‟s statement reflected in the probation report as prima facie evidence of loss.

(People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [Fourth Dist., Div. Two].) Once

the victim makes a prima facie showing of economic losses incurred as the result of the

defendant‟s criminal acts, the burden shifts to the defendant to disprove the amount of

losses suffered by the victim. (Ibid.; see also § 1202.4, subd. (f), (f)(1).)

       Where the Restitution Fund has provided assistance to a victim, section 1202.4,

subdivision (f)(4)(B) does require that the amount provided “shall be established by

       19   We will hereafter refer to the cross-appellant as “the People.”
                                              58
copies of bills submitted to the California Victim Compensation and Government Claims

Board.” Nevertheless, because a defendant may request a hearing to dispute the amount

of restitution (§ 1202.4, subd. (f)(1)), the defendant‟s failure to do so waives any claim

that the amount stated in the probation report is incorrect. In People v. Brasure (2008)

42 Cal.4th 1037, the defendant challenged a victim restitution order on the ground that

the victim‟s loss “was not shown by documentation or sworn testimony.” (Id. at p. 1075)

In holding that the defendant had not preserved the contention for appeal, our Supreme

Court stated: “[B]y his failure to object, defendant forfeited any claim that the order was

merely unwarranted by the evidence, as distinct from being unauthorized by statute.

[Citation.] As the order for restitution was within the sentencing court‟s statutory

authority, and defendant neither raised an objection to the amount of the order nor

requested a hearing to determine it [citation], we do not decide whether the court abused

its discretion in determining the amount.” (Id. at pp. 1074-1075.)20

       Here, defendant did not dispute that the victim‟s family had been reimbursed

$7,500 in funeral expenses, nor did he dispute the fact that the victim‟s family had

actually incurred funeral expenses in that amount.21 Consequently, the trial court



       20 Brasure’s holding was criticized in In re K.F. (2009) 173 Cal.App.4th 655 as
contrary to the rule stated in other contexts by the California Supreme Court that a
challenge to the sufficiency of the evidence may be raised on appeal even if no objection
was made in the trial court. (Id. at pp. 660-661.) Nevertheless, Brasure is directly on
point, and we are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)

       21 For purposes of section 1202.4, “victim” includes the immediate surviving
family of the actual crime victim. (§ 1202.4, subd. (k).)
                                             59
properly accepted the amount recited in the probation report, and the prosecution was

under no obligation to provide further evidence.

       As we discuss below, the court‟s order staying restitution resulted in an

unauthorized sentence and is subject to challenge at any time. Section 1238,

subdivision (a)(10) provides that the People may appeal from the imposition of

an unlawful sentence, whether or not the court suspends execution of the sentence.

Consequently, the People have standing to appeal.

       The Sentence Is Invalid to the Extent It Stays Victim Restitution.

       Victim restitution is mandatory in every case in which a victim suffers a loss,

unless the trial court finds that compelling and extraordinary reasons exist to dispense

with restitution and states those reasons on the record. (Cal. Const., art. I, § 28, subd. (b);

§ 1202.4, subd. (b).) If the Restitution Fund has provided any assistance to a victim

which was necessitated by the defendant‟s conduct, the restitution award must include the

amount provided by the Restitution Fund. (§ 1202.4, subd. (f)(4)(A).) A sentence that

omits a restitution order without a finding of compelling and extraordinary reasons is

invalid. (§ 1202.46; People v. Brown (2007) 147 Cal.App.4th 1213, 1225.) And, a

sentence which omits a restitution order without a finding of compelling and

extraordinary reasons may be challenged at any time. (§ 1202.46; People v. Moreno

(2003) 108 Cal.App.4th 1, 9-10.)

       Here, the sentence included a restitution order, but the court ordered it stayed

unless defendant was released on parole. The court did not state any compelling and

extraordinary reason for doing so. Because defendant was sentenced to life

                                              60
 imprisonment without the possibility of parole, the event which would lift the stay and

 bring the restitution order into execution could never occur. Accordingly, the sentence in

 effect did not include a restitution order, and it is invalid to that extent.

        We will remand the matter with directions to the trial court to impose an unstayed

 restitution order directing that $7,500 be paid to the Restitution Fund, unless the court

 determines that there is a compelling and extraordinary reason for omitting victim

 restitution all together.

                                                2.

               THE PAROLE REVOCATION FINE IS NOT AUTHORIZED

       If a defendant is sentenced only to a term of life in prison without the possibility of

parole, a parole revocation fine is not authorized because parole is not a possibility. (People

v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181, cited with approval in People v. Brasure,

supra, 42 Cal.4th at p. 1075.) Here, defendant was sentenced to life without the possibility

of parole. Accordingly, the parole revocation fine must be stricken.




                                                61
                                         DISPOSITION

       The sentence is vacated and the cause is remanded for further sentencing proceedings.

The superior court is directed to impose an unstayed restitution order directing that $7,500 be

paid to the Restitution Fund, unless the court determines that there is a compelling and

extraordinary reason for omitting or reducing victim restitution. The court shall also impose

a restitution fine, and shall strike the parole revocation fine.

       The superior court clerk is directed to issue an amended abstract of judgment and

shall provide a copy to the parties and to the Department of Corrections and Rehabilitation.

       The judgment is otherwise affirmed.

         NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                   McKINSTER
                                                                                               J.
We concur:


RAMIREZ
                           P. J.


CODRINGTON
                              J.




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