Filed 1/23/14 P. v. Garay CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE


THE PEOPLE,

     Plaintiff and Respondent,
                                                                       G047554
         v.
                                                                       (Super. Ct. No. 09ZF0066)
JOE LUIS GARAY, JR.,
                                                                       OPINION
     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Thomas
M. Goethals, Judge. Affirmed as modified.
                   Randall Bookout, 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, Kristine A. Gutierrez and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
              Joe Garay, Jr., appeals from a judgment sentencing him to 15 years to life
in prison for second degree murder. He contends his conviction must be reversed due to
instructional error, but we disagree. Other than to modify the amount of appellant’s
presentence credits, we affirm the judgment against him.
                                                 FACTS
              The events giving rise to this case occurred in the spring of 1996. At that
time, appellant and Kevin Carlson were in an Anaheim gang called the Devious
Hoodlums (DH). Appellant’s best friend was Ruben Calderon. Calderon was not in DH,
but his girlfriend Christi Parenti was. Parenti was also pregnant with Calderon’s child.1
                                      The Prosecution’s Case
              On the afternoon of March 5, 1996, appellant and Calderon were at the
house of Calderon’s godmother, Kim Bouzikian. After speaking with Carlson on the
phone, appellant told Calderon that Carlson was on his way over. Appellant also said he
and Carlson were going to go to Fullerton to see if they could “catch somebody slipping.”
Explaining what that meant to him, Calderon testified Carlson had been disrespected a
couple of weeks earlier by a member of a gang called the Fullerton Suicidal Gang (FSG).
Calderon surmised Carlson and appellant were going to Fullerton to see if they could find
a FSG member who was all alone so they could exact revenge for that disrespect.
              A short while later, Carlson picked up appellant at Bouzikian’s home.
They were gone for about 45 minutes before returning to the house and speaking with
Calderon. According to Calderon, appellant “looked like a ghost,” and Carlson, aka
Boxer, was “pumped up” and had blood on his shoes. When Calderon asked them what
happened, Carlson said, “I beat the shit out of him and Joe (appellant) stuck him.”
Appellant did not say anything in response to that statement.




       1
              Parenti and Calderon were married by the time of trial in 2012.


                                                     2
             It turned out Carlson and appellant had attacked FSG member Troy Gorena
near a crosswalk in Fullerton. When the police arrived at the scene, they discovered
Gorena had been stabbed twice in the back. He also had a bruise on his forehead and a
cut above his right eyebrow. Gravely injured, the only information Gorena was able to
provide was that he had been attacked by two six-foot, white males in their 20’s with
shaved heads. Paramedics tried to aid Gorena, but he died on the way to the hospital.
             Within days of the attack, Calderon learned from news reports that Gorena
was only 16 years old. Having children of his own, Calderon was upset Carlson and
appellant had killed a person who was so young. When Calderon confronted appellant
about the stabbing, appellant admitted, “Yeah, I stuck him.”
             Parenti, Calderon’s girlfriend, was also upset about Gorena’s murder.
Although she was in the DH gang, she knew lots of FSG members from having grown up
in Fullerton. In expressing her displeasure to appellant, she accused him of being a
“motherfucking murderer.” Appellant admitted to Parenti he had stabbed Gorena, and
Carlson had “beat the shit out of him.”
             Parenti also spoke with Carlson about the stabbing. Referring to a
pocketknife Parenti had given him as a gift, Carlson told her the knife was “put to good
use,” but not by him. He said he gave the knife to appellant before they confronted
Gorena, so appellant would “have his back.” Then, after he beat up Gorena, appellant
stabbed him with the knife.
             After speaking with Carlson and appellant, Parenti told Calderon what they
had told her. Calderon told Parenti to “keep [her] mouth shut,” but she told Calderon’s
mother Gloria Cueva what she knew. Parenti also made it clear to Cueva that she was
afraid to go to the police. So Cueva went behind Parenti’s back and arranged for the
police to show up unbeknownst at a café where she and Parenti were having lunch one
day. At the café, Parenti reluctantly told investigators what she knew. She also said she



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did not want to be a witness in the case and begged the officers to keep her name out of
the investigation.
              Based on Parenti’s information, appellant and Carlson were arrested for
murder. However, when word got out Parenti had talked to the police, she and Calderon
began receiving threats, and Calderon told her he was going to leave her if she didn’t
“fix” things. Fearing for her well-being, Parenti eventually buckled under the stress of
the situation and recanted her story. Since she was the key witness in the case, the
charges against appellant and Carlson were dropped.
              However, in 2008 the case gained new life when a jailhouse informant
came forward with new information. Jacob Mata told authorities that when he was
housed in county jail with appellant in 1996, appellant told him he was locked up for
stabbing a guy in Fullerton. At trial, Mata testified that, in confiding in him about the
stabbing, appellant said “we did it.” However, Detective David Rondou testified that
when he interviewed Mata in jail, Mata said appellant had told him that he had personally
committed the stabbing. Rondou also testified that when a gang member is disrespected,
they are expected to retaliate with violence in order to save face.
              Another break in the case came when Calderon came forward to the police
and told them what he knew about the stabbing. Although Calderon had previously
pressured Parenti to “keep [her] mouth shut,” he eventually cooperated with authorities
because he felt bad for Gorena’s family and the case was “eating him up.” At trial, he
testified Carlson was the one who beat up Gorena, and appellant was the one who stabbed
him. However, during his grand jury testimony, Calderon testified appellant was the
beater, and Carlson was the stabber.
                                        The Defense
              Carlson was the main witness for the defense. Like appellant, he was
charged with murdering Gorena, but pursuant to a plea bargain, he pleaded guilty to
aggravated assault and was given credit for time served in exchange for testifying

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truthfully at appellant’s trial. As part of his plea bargain, he was also granted use
immunity for his testimony.
              Carlson testified that in the weeks leading up to Gorena’s murder, he had a
run-in with an FSG member known as “Boo-boo.” During that incident, Boo-boo’s
companion pushed Carlson into a planter, and Carlson felt like he “got punked.” He
didn’t do anything about it at the time, but on the morning of the murder, he saw Boo-boo
while he was driving in Fullerton, and his mind turned toward revenge.
              Later that day, Carlson was driving with his cousin Michael Heatley and
Heatley’s friend Jon Mainberger. They saw appellant walking alone and decided to pick
him up, too. Then they drove to Fullerton to look for Boo-boo. Although they didn’t
find him, they did spot Gorena walking by himself, which prompted Carlson to pull over.
At trial, Carlson testified he didn’t know Gorena. He said he intended to “hit him up”—
find out what gang he was in — and if it turned out Gorena was in FSG, he was going to
beat him up. According to Carlson, he was seeking revenge on his own behalf; the
incident did not have anything to do with appellant. However, before leaving his car, he
gave appellant a knife and told appellant to back him up. Carlson also had a knife. As he
and appellant set out to confront Gorena, Heatley and Mainberger stayed behind in
Carlson’s car.
              The fight was a mismatch. When Gorena told Carlson he belonged to FSG,
Carlson swiftly took him down with a flurry of punches without any help from appellant.
While Gorena was lying on the sidewalk, Carlson told him to “tell his homeboys a white
boy kicked his ass.” Carlson and appellant then ran back to Carlson’s car. At that point,
appellant told Carlson he had stabbed Gorena. Carlson was surprised. In fact, he did not
see appellant anywhere near Gorena during the encounter. While they were driving
away, appellant wanted to throw his bloody knife out the window, but Carlson took the
weapon and disposed of it a few days later. At that time, appellant told Carlson the knife
went into Gorena “like butter.”

                                              5
                                         The Verdict
              In closing argument, the prosecution told the jurors they could find
appellant guilty of first degree murder under any one of three theories: 1) as an actual
perpetrator; 2) as an aider and abettor; or 3) as part of an uncharged conspiracy. The
defense argued appellant was an innocent bystander who was not guilty of any crime. In
the end, the jury convicted appellant of second degree murder. He was sentenced to 15
years to life in prison for the crime.
                                              I
              Appellant contends the trial court erred in failing to give a unanimity
instruction with regard to the prosecution’s theories of culpability. We disagree.
              “In a criminal case, a jury verdict must be unanimous. . . . 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
jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th
1124, 1132.) On the other hand, when “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.” (Ibid.)
              Appellant concedes the jury was not required to unanimously agree on
whether he was liable for murder as the direct perpetrator or an aider and abettor.
However, he maintains a unanimity instruction was required in light of the uncharged
conspiracy theory because that theory essentially posited a separate offense that was not
necessarily based on the same operative facts as the murder. For instance, under that
theory, the jury could have convicted appellant of murder if it found: 1) Appellant and
Carlson agreed to commit aggravated assault; 2) they committed an overt act in



                                              6
furtherance of the conspiracy, such as driving into FSG territory; and 3) murder was a
natural and probable consequence of their agreement.
              Appellant fails to cite any authority that requires a unanimity instruction to
be given under the circumstances presented in this case. And, in fact, the California
Supreme Court has ruled that when, as here, conspiracy is not charged as a separate
crime, but is merely offered “as an alternative theory of liability for the charged,
substantive crime of murder” the jury is not required to agree on the theory of guilt.
(People v. Valdez (2012) 55 Cal.4th 82, 154.) Even though the prosecution relied on the
natural and probable consequences doctrine in this case, there was still only one distinct
crime, and that is the key to deciding whether a unanimity instruction must be given.
(People v. Russo, supra, 25 Cal.4th at pp. 1134-1135.)
              While “it would be unacceptable if some jurors believed the defendant
guilty of one crime and other jurors believed [him] guilty of another[,] . . . unanimity as
to exactly how the crime was committed is not required. Thus, the unanimity instruction
is appropriate ‘when conviction on a single count could be based on two or more discrete
criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty
verdict on one discrete criminal event.’ [Citation.]” (People v. Russo, supra, 25 Cal.4th
at pp. 1134-1135.)
              Here, there was but one discrete criminal event: Gorena’s murder.
Therefore, despite the fact the prosecution presented multiple theories and acts under
which appellant was potentially liable for that crime, the jury was not required to
unanimously agree on which theory or acts supported its verdict. No instructional error
has been shown.
                                              II
              Appellant also contends the court’s instructions on aiding and abetting were
flawed. Although the instructions included some unwarranted verbiage, we do not
believe they violated appellant’s rights in any fashion.

                                              7
                In reviewing appellant’s claim, we must keep in mind that jury instructions
“‘should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin
(2000) 78 Cal.App.4th 1107, 1111-1112.) We “‘“assume that the jurors are intelligent
persons and capable of understanding and correlating all jury instructions which are
given. [Citation.]”’ [Citation.]” (Id. at p. 1111.) In determining whether instructional
error has occurred, we must consider the record as a whole, including the specific
language challenged, other instructions given, and the arguments of counsel. (People v.
Cain (1995) 10 Cal.4th 1, 36-37; People v. McPeters (1992) 2 Cal.4th 1148, 1191.)
Unless there is a reasonable likelihood the jury misunderstood the challenged instruction
in a manner that violated defendant’s rights, we must uphold the court’s charge to the
jury. (Ibid.)
                The trial court instructed the jurors they could find appellant guilty of
murder if he directly committed that offense, or aided and abetted Carlson in doing so.
The court also instructed on the natural and probable consequences doctrine with respect
to the theories of aiding and abetting and conspiracy. Under those instructions, the jurors
were told they could convict appellant of murder if he aided and abetted an assault with
force likely to produce great bodily injury, or if he agreed with Carlson to commit that
offense and murder was a natural and probable consequence of that crime or their
agreement to commit it.
                The court’s instructions also included this sentence: “Before you may
decide whether the defendant is guilty of murder you must decide whether he is guilty of
assault with force likely to produce great bodily injury.” (Italics added.) Read in
isolation, that instruction was incorrect because appellant’s commission of assault with
force likely to produce great bodily injury was not a necessary condition for a murder
conviction under the uncharged conspiracy theory.



                                                8
              However, viewed in context, it is evident the court was not setting forth a
necessary condition for convicting appellant of murder. Instead, the court was simply
explaining the requirements for a particular theory of murder. The subject language was
included in the instructions on aiding and abetting. Specifically, the language was
included to explain the prosecution’s natural and probable consequences theory. Because
assault with force likely to produce great bodily injury was alleged as the target offense
under that theory, the jury would have had to find appellant committed that offense in
order to convict him of murder under that theory. Therefore, the challenged language
made sense in the context in which it was given.
              Viewing the instructions as a whole, it is not reasonably likely the jury
construed the language in a manner that violated appellant’s rights. If anything, the
subject language could only have benefitted appellant by requiring the jury to find he
committed the target offense when, in fact, his commission of that offense was not a
prerequisite for a murder conviction. All things considered, the prosecution had greater
cause to complain about the subject language than appellant.
              Taking his instructional claim one step further, appellant argues his
conviction must be reversed because there is insufficient evidence he committed assault
with force likely to produce great bodily injury so as to support the prosecution’s natural
and probable consequences theory. Assuming the jury based its verdict solely on that
theory, the evidence nevertheless shows appellant committed that offense. Indeed, at one
point or another, Calderon, Parenti, Mata and Carlson all implicated appellant as the
person who stabbed Gorena. Accordingly, any error in the court’s aiding and abetting
instructions was harmless.
                                             III
              Next, appellant claims the trial court prejudicially erred in failing to instruct
the jury to consider Carlson’s testimony with caution because he was an accomplice to
the murder. The claim is not well taken.

                                              9
              “‘An accomplice is . . . 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.’ [Citation.] If sufficient evidence is presented at trial to justify the
conclusion that a witness is an accomplice, the trial court must so instruct the jury, even
in the absence of a request. [Citation.] Of course, an accomplice has a natural incentive
to minimize his own guilt before the jury and to enlarge that of his cohorts; accordingly,
the law requires an accomplice’s testimony be viewed with caution to the extent it
incriminates others. [Citations.] Moreover, an accomplice’s testimony must be
corroborated before a jury may consider it. [Citation.]” (People v. Brown (2003) 31
Cal.4th 518, 555.)
              The trial court’s duty to instruct on these principles arises only when there
is substantial evidence to support the conclusion that one of the government’s witnesses
is an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.) It is not enough that the
witness knew about the subject crime, was present during its commission and failed to
prevent it from occurring. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91.) To be
considered an accomplice, the witness must have “‘act[ed] with knowledge of the
criminal purpose of the perpetrator and with an intent or purpose either of committing, or
of encouraging or facilitating commission of, the offense.’ [Citations.]” (Ibid.)
              Assuming there was substantial evidence from which the jury could infer
Carlson was an accomplice, the failure to instruct the jury to view his testimony with
caution could not have been prejudicial to appellant. Much of Carlson’s testimony was
actually favorable to appellant, his testimony was amply corroborated by other witnesses,
and the jury knew he made a deal with the state in order to avoid prosecution on the
murder charge. Under these the circumstances, little would have been added by
instructing the jury to view Carlson’s testimony cautiously on the basis he was an
accomplice. Accordingly, the absence of such an instruction does not warrant reversal.
(People v. Lewis, supra, 26 Cal.4th at pp. 370-371.)

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                                                        IV
                 Appellant further argues the court erred by failing to instruct the jury on the
foundational requirements for an adoptive admission. This claim also fails.
                 Calderon testified that less than an hour after the stabbing, Carlson told him
he had “beat the shit out of” Gorena and appellant had “stuck him.” Because appellant
was present but didn’t say anything in response to Carlson’s statement, the prosecutor
argued appellant adopted the statement as true by virtue of his silence. Although it was
not requested to do so, appellant contends the trial court should have instructed the jury
on the foundational requirements for an adoptive admission.2
                 Appellant’s claim is contrary to People v. Carter (2003) 30 Cal.4th 1166,
1198 (Carter), in which our Supreme Court ruled that trial courts do not have a sua
sponte duty to give CALCRIM No. 357. Nevertheless, appellant argues the trial court
should have given the instruction in his case because Carter was decided several years
after this case arose, the bench notes to CALCRIM No. 357 do not acknowledge Carter’s
holding, and much of the evidence presented against him consisted of hearsay.
                 However, irrespective of the holding in Carter, the Evidence Code makes
clear the decision to instruct on the foundational requirements for certain evidentiary
facts, such as those pertaining to adoptive admission, is a discretionary matter. (Evid.
Code, § 403, subd. (c)(1).) While trial courts are empowered to instruct on those
requirements, the Evidence Code does not require them to do so in the absence of a
request from counsel. (Ibid.)


        2
                    Those requirements are set forth in CALCRIM No. 357, which states: “If you conclude that
someone made a statement outside of court that . . . tended to connect the defendant with the commission of the
crime . . . and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The
statement was made to the defendant or made in (his/her) presence; [¶] 2. The defendant heard and understood the
statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if (he/she)
thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all
these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you
decide that any of these requirements have not been met, you must not consider either the statement or the
defendant’s response for any purpose.”


                                                        11
              And in any event, any error in failing to give CALCRIM No. 357 was
surely harmless. As Carter explained, “The instruction is largely a matter of common
sense —silence in the face of an accusation is meaningful, and hence may be considered,
only when the defendant has heard and understood the accusation and had an opportunity
to reply.” (Carter, supra, 30 Cal.4th at p. 1198.) So “[g]iving the instruction might
cause the jury to place undue significance on bits of testimony that the defendant would
prefer it not examine so closely.” (Ibid.) Given the circumstances surrounding the
statement in question and the strength of the evidence against appellant, it is virtually
inconceivable he would have obtained a better result had CALCRIM No. 357 been given.
Its absence from the court’s instructions is not therefore cause for reversal.
                                              V
              Appellant argues the cumulative effect of the trial court’s errors compels
reversal. However, for the reasons explained above, we do not believe there was any
error which, either alone or in combination of others, rendered appellant’s trial unfair.
Alas, this argument fails, too.
                                             VI
              At sentencing, the trial court failed to award appellant any presentence
conduct credits. The parties agree, as do we, that appellant is entitled to conduct credit
amounting to 15 percent of his actual time in custody. (Pen. Code, § 2933.1, subd. (a);
People v. Ly (2001) 89 Cal.App.4th 44, 47.) We will modify the judgment accordingly.
                                      DISPOSITION
              The judgment is modified to award appellant 226 days of presentence
conduct credit, which combined with his 1,509 days of custody, amounts to a total
presentence credit award of 1,735 days. The clerk of the trial court is directed to prepare




                                             12
an amended abstract of judgment reflecting this modification and send a certified copy to
the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.




                                                BEDSWORTH, ACTING P. J.


WE CONCUR:



MOORE, J.



FYBEL, J.




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