Filed 3/12/13 P. v. Cornejo CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B238945

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. KA094056)
         v.

MARCO ANTONIO CORNEJO et al.,

         Defendant and Appellant.




         APPEAL from the judgments of the Superior Court of Los Angeles County, Bruce
F. Marrs, Judge. Affirmed.
         Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant Marco Antonio Cornejo.
         Mark Yanis, under appointment by the Court of Appeal, for Defendant and
Appellant Alfonso Henry Talamantes.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Supervising
Deputy Attorney General, John Yang, Deputy Attorney General, for Plaintiff and
Respondent.
                                __________________________________
       The jury found defendants and appellants Marco Antonio Cornejo and Alfonso
Henry Talamantes guilty in count 1 of home invasion robbery (Pen. Code, §§ 211, 213,
subd. (a)(1)(A)),1 in count 2 of first degree burglary of a residence with a person present
(§§ 459, 667.5, subd. (c)), and in count 3 of assault with a deadly firearm (§ 245,
subd. (a)(2)). The jury found true the allegations that a principal was armed within the
meaning of section 12022, subdivision (a)(1) as to all counts as to both defendants; that
Cornejo personally used a firearm within the meaning of section 12022.53,
subdivision (b) as to count 1; and that Cornejo personally used a firearm within the
meaning of section 12022.5 as to counts 2 and 3. The section 12022.53 (count 1) and
section 12022.5 (counts 2 and 3) allegations were found not true as to Talamantes. In a
separate proceeding, the trial court found that Talamantes had suffered two serious or
violent prior felony convictions under the three strikes law. (§§ 1170.12, subds. (a)-(d),
667, subds. (b)-(i).)
       The trial court sentenced Cornejo to the upper term of nine years as to count 1,
enhanced by ten years pursuant to section 12022.53, subdivision (b). The court imposed
the midterm of four years on count 2, the midterm of three years on count 3, the midterm
of four years as to both of the section 12022.5, subdivision (a) allegations (counts 2
and 3), and stayed the sentences pursuant to section 654. One-year enhancements were
imposed pursuant to section 12022, subdivision (a)(1) and stayed under section 654.
       Talamantes was sentenced to the base term of 25 years to life as to count 1, plus
one year for the firearm enhancement (§ 12022, subd. (a)(1)), and identical terms for
counts 2 and 3, which the trial court stayed pursuant to section 654.
       We appointed counsel for defendants on appeal. Appointed counsel for Cornejo
filed an opening brief raising no issues, but requesting this court to independently review
the record for arguable contentions pursuant to People v. Wende (1979) 25 Cal.3d 436.
Cornejo was advised of his right to file a supplemental opening brief. Cornejo filed a
supplemental brief, in which he contends the testimony of Melesio Arteaga is not credible

1      Unless otherwise indicated, all statutory references are to the Penal Code.


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because Arteaga agreed to be a witness for the prosecution in exchange for a possible
reduction in his sentence. Cornejo also contends the trial court improperly admitted
Arteaga‟s testimony that a message threatening him was written on his younger brother‟s
skateboard. Cornejo requests that new counsel be appointed to him to review the record
for arguable appellate contentions.
       Talamantes contends the trial court erred in instructing the jury with CALJIC
No. 3.03, withdrawal of an aider and abettor.
       We find no merit to the issues raised by Cornejo, and our independent review of
the record reveals no arguable appellate contentions. Talamantes‟s argument fails to
demonstrate prejudicial error. We affirm both judgments.


                                         FACTS


       Arteaga testified that he (age 19), Cornejo (age 22), and Talamantes (age 35) were
drinking at Cornejo‟s house on the evening of April 22, 2011, and each had several beers.
Arteaga and Cornejo had smoked marijuana earlier that evening. Arteaga felt
intoxicated, and Cornejo appeared intoxicated to him. Talamantes, who Arteaga
described as the leader in their group, suggested that they rob a man known as “Panda,”
who was living with Cornejo‟s neighbor, Kathleen Feamster. Cornejo had known his
neighbor for over a decade and had smoked marijuana at her house on numerous
occasions. The men knew that drug deals commonly occurred at Feamster‟s house. They
intended to take money and marijuana from Panda. They discussed the idea and Cornejo
urged that they should “just do it.” Cornejo then went into the back of the house and
brought out guns for the men to use. Cornejo took a pistol, Talamantes took a shotgun,
but Arteaga declined the offer of a gun. All three men then went to Feamster‟s house.
       Mark Rodriguez testified that he drove to Feamster‟s house around midnight that
night to hang out with his friends. As he approached the house, he saw Cornejo walking
down the street. The two had a prior run-in, during which Cornejo damaged Rodriguez‟s
car. Cornejo coughed to get Rodriguez‟s attention and then gestured and lifted his shirt.


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Rodriguez ignored him and went inside. Panda, Melinda Almada, and a girl named Lexi
were already there.2
       About 10 to 15 minutes after Rodriguez arrived, Cornejo, Talamantes, and Arteaga
entered the house through an unlocked door. Rodriguez and Panda were sitting in the
living room and Almada and Lexi were returning from the bathroom. Feamster was in
her bedroom. Cornejo and Talamantes demanded money and cell phones from
Rodriguez and Panda. Cornejo pointed a small semi-automatic handgun at Rodriguez.
Arteaga testified that Talamantes held the shotgun inside his sweatpants but did not take
it out or point it at anyone. Either Talamantes or Cornejo took Rodriguez‟s cell phone.3
Rodriguez testified that “they” took Panda‟s laptop. Arteaga testified that Cornejo and
Talamantes took $300-$600 in cash and some marijuana.
       At that point, Arteaga and Talamantes ran outside. As they were leaving,
Rodriguez, Almada, Feamster, and Arteaga heard a gunshot. Rodriguez saw a flash of
light outside. Cornejo was still inside, pointing the gun at Rodriguez, but he did not fire
his weapon. Cornejo left the house.
       Feamster did not hear anything prior to the gunshot because she was in her
bedroom yelling at her roommate. After Feamster heard the gunshot, Rodriguez told her
what had happened. Feamster went to Cornejo‟s mother‟s house to talk to her about the
incident. While Feamster was talking to Cornejo‟s mother, Cornejo‟s brother Alejandro
threatened to “fuck her up,” if she called the police. Rodriguez called the police when
Feamster came back to the house. Panda, Almada, and Lexi left before the police
arrived. Panda was afraid he would get shot over the incident.
       The police arrived and set up a perimeter to search for suspects. Officer William
Johnson saw someone running away as he approached. He found a gray sweatshirt and a


2      Almada testified that she went to the house at 11:00 or 11:30, and that Rodriguez
was already there.

3     Rodriguez and Arteaga testified that Talamantes took the phone. Almada testified
Cornejo took the phone.


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black bandana in the bed of a truck nearby. Cornejo and Talamantes were apprehended,
and Rodriguez identified both in a field show-up from 50-70 feet away. Rodriguez told
police that Cornejo had been wearing a gray sweatshirt, and Talamantes had been
wearing a black bandana tied around his arm. Arteaga testified that Cornejo had a black
bandana with him, but he did not know if Cornejo had been wearing it. Almada later
identified Cornejo in a photo line-up but could not identify Talamantes. The police did
not recover any weapons, cell phones, laptops, drugs or money.
       Arteaga was arrested the next morning and confessed to the police. About a
month before the trial, he entered into an open plea bargain. Approximately two weeks
before the trial, his younger brother‟s skateboard was vandalized. The writing on it
threatened Arteaga with death.
       Cornejo‟s brother Alejandro testified in his defense. Alejandro had been with
friends on the evening of April 22, 2011. He returned home, where he lived with Cornejo
and his mother, around 3:00 a.m. When he got home, Feamster confronted him about
Cornejo. After she left, he got a call from Arteaga, who asked Alejandro to pick him up
from his girlfriend‟s house. Alejandro picked up Arteaga, who asked him to take him to
his sister‟s house. Arteaga kept saying that “he fucked up” and acted weird and fidgety.
Alejandro thought he was under the influence of methamphetamine.
       Alejandro testified he had never seen a gun at his mother‟s house, other than his
own BB gun. He admitted to a prior conviction for misdemeanor domestic violence.
       Talamantes did not present a defense.


                                      DISCUSSION


Cornejo’s Appeal


       Cornejo‟s argument that Arteaga‟s testimony should have been suppressed
because, as a former codefendant, he was not credible and Arteaga testified under the
pressure of a possible reduction in his sentence, is without merit. The introduction of


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accomplice testimony does not violate due process. (See United States v. Augenblick
(1969) 393 U.S. 348, 352 [“When we look at the requirements of procedural due process,
the use of accomplice testimony is not catalogued with constitutional restrictions.”].) The
fact that a witness may receive a reduction in his sentence may be considered by the jury
(see People v. Mendoza (2011) 52 Cal.4th 1056, 1084 (Mendoza)), but it is the exclusive
function of the trier of fact to assess the credibility of witnesses and draw reasonable
inferences from the evidence (People v. Young (2005) 34 Cal.4th 1149, 1181).
       The jury was informed that Arteaga was an accomplice and that his testimony
should be treated with caution. Arteaga testified that he admitted all three charges
against him with respect to the incident and made an open plea for a possible reduced
sentence. The trial court instructed the jury that Arteaga was an accomplice under
CALJIC No. 3.16 (witness accomplice as a matter of law) and instructed the jury as to
how Arteaga‟s credibility should be evaluated under CALJIC Nos. 3.18 (testimony of an
accomplice to be viewed with care and caution), 3.11 (testimony of an accomplice or
codefendant must be corroborated), 3.12 (sufficiency of evidence to corroborate an
accomplice), and 2.20 (believability of witness). Arteaga‟s testimony was corroborated
by the testimony of other eyewitnesses. Arteaga‟s testimony is therefore not “inherently
improbable,” and it is not within the scope of this court‟s authority to reevaluate his
credibility. (In re Frederick G. (1979) 96 Cal.App.3d 353, 366-367.) In the absence of
any evidence to the contrary, we presume the jury understood and followed the trial
court‟s instructions. (See People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.)
       Cornejo‟s argument that the trial court improperly admitted Arteaga‟s testimony
regarding the skateboard is also without merit. A witness‟s fear of retaliation is relevant
to his credibility. (Mendoza, supra, 52 Cal.4th at pp. 1084-1085.) The source of the
threat makes no difference because the witness may be testifying under fear, regardless of
whether the threat comes from the defendant or someone who supports the defendant.
(Id. at p. 1085.) Moreover, the jury is entitled to know the facts that give rise to the fear
so that it may evaluate the seriousness of the witness‟s fear and the impact it would have




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on the witness‟s testimony, if any. (See ibid.) Evidence of the threat was relevant to
Arteaga‟s testimony, and the trial court did not err in admitting it.
       In addition to consideration of the issues raised in Cornejo‟s supplemental brief,
we have examined the entire record, and we are satisfied that Cornejo‟s attorney has fully
complied with her responsibilities and that no arguable issues exist. (Smith v. Robbins
(2000) 528 U.S. 259.) Cornejo‟s request for a new attorney on appeal is denied.


Talamantes’s Appeal


       Talamantes contends the trial court erred by instructing the jury on an aider and
abettor‟s withdrawal from participation in a crime because it was not part of the
defense‟s theory of the case, and there was no evidence presented that Talamantes
withdrew from the crime. He argues giving the instruction was confusing to the jury
because the instruction assumes that Talamantes had criminal culpability from which he
could withdraw, in violation of his right to due process. The Attorney General counters
that Talamantes forfeited his contention by failing to raise it before the trial court.
Alternately, the Attorney General concedes that the instruction was unsupported by the
evidence but argues that because the evidence of Talamantes‟s guilt is strong, reversal is
not warranted.
       A defendant does not forfeit a claim of instructional error where the instruction
was an incorrect statement of the law or the defendant‟s substantial rights were affected.
(§ 1259; People v. Franco (2009) 180 Cal.App.4th 713, 719.) Ascertaining whether error
occurred and was prejudicial necessarily requires that we review the merits of the
defendant‟s claim. (Ibid.) In reviewing the claim, we reverse only if the trial court erred
and the error “resulted in a miscarriage of justice, making it reasonably probable the
defendant would have obtained a more favorable result in the absence of error.” (People
v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
       “A trial court must instruct the jury, even without a request, on all general
principles of law that are „“closely and openly connected to the facts and that are


                                               7
necessary for the jury‟s understanding of the case.” [Citation.] . . .‟ [Citation.]” (People
v. Burney (2009) 47 Cal.4th 203, 246.) “„An instruction should contain a principle of law
applicable to the case, expressed in plain language, indicating no opinion of the court as
to any fact in issue.‟ [Citations.]” (People v. Wright (1988) 45 Cal.3d 1126, 1135.) This
duty extends to defenses if the defendant is relying on a specific defense, or if the specific
defense is supported by substantial evidence and does not conflict with the defense‟s
theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.) We review
independently whether substantial evidence supported a defense. (People v. Shelmire
(2005) 130 Cal.App.4th 1044, 1055.)
       Here, the trial court instructed the jury under CALJIC No. 3.03 (termination of
liability of aider and abettor) in relevant part:”
       “Before the commission of the crimes charged in counts 1, 2, and 3, an aider and
abettor may withdraw from participation in those crimes, and thus avoid responsibility
for those crimes by doing two things: First, he must notify the other principals known to
him of his intention to withdraw from the commission of that crime; second, he must do
everything in his power to prevent its commission.”
       We agree with the parties that the instruction was not responsive to the evidence
and need not have been given. There was no evidence to indicate Talamantes had
withdrawn from any of the charged crimes. He neither notified Cornejo and Arteaga of
an intention to withdraw from the crimes nor did he do anything to prevent their
commission. We conclude that the error was harmless, however, because the record
contained strong evidence of Talamantes‟s guilt.
       Arteaga testified that it was Talamantes‟s idea to commit the robbery, that he was
the oldest in the group by a decade, and the “leader.” Arteaga described Talamantes
taking a sawed-off shotgun from Cornejo, checking the gun to see if it was loaded, and
then cleaning the bullets and re-loading the shotgun. Arteaga testified that Talamantes
entered the house with the shotgun in his sweatpants and demanded that Rodriguez and
Panda give him their money and cell phones. Rodriguez also testified that Talamantes
demanded cell phones and money, and that he took Rodriguez‟s cell phone while Cornejo


                                               8
held Rodriguez at gunpoint. All of the victims testified that they heard a shot fired
outside as Talamantes and Arteaga left the house. Finally, Arteaga testified that Cornejo
and Talamantes fled the scene in Talamantes‟s vehicle. Given the copious evidence of
guilt, it is not reasonably probable that Talamantes would have obtained a more favorable
result if the instruction had not been given.
       Moreover, as the Attorney General highlights, the plain language of CALJIC
No. 3.03 makes clear that the instruction only applies if the prosecution has first proven
defendant to be a principal who participated in the crime charged as an aider and abettor,
providing: “The People have the burden of proving that the defendant was a principal in
and had not effectively withdrawn from participation in that crime. If you have a
reasonable doubt that he was a principal in and participated as an aider and abettor in a
crime charged, you must find him not guilty of that crime.” The language of the
instruction leaves no doubt that defendant must be proven a principal and aider and
abettor before it can apply.


                                      DISPOSITION


       The judgments are affirmed.




              KRIEGLER, J.



We concur:



              ARMSTRONG, Acting P. J.                              MOSK, J.




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