Filed 4/28/16 (unmodified opinion attached) certified for publication



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DISCUSSION

Appellants contend (1) that the trial court erred in admitting Ruiz’s out-of-court statements to Officer Vasquez; (2) that the court erred in permitting Kalac to testify to appellants’ planning of the robbery; (3) that the court erred in allowing the jury to determine whether Kalac was an accomplice; (4) that the court erred in failing to instruct, sua sponte, on malice murder, the lesser included offenses of murder, and defenses to malice murder; (5) that there was insufficient evidence to support the robbery special circumstance enhancement; and (6) that the imposition of a parole revocation fine was unauthorized. We address each contention in turn.


A. The Trial Court did not Err in Admitting Alejandro Ruiz’s Testimony.

Ruiz was unavailable for trial. In a pretrial hearing under Evidence Code section 402, the court permitted Officer Vasquez to testify about Ruiz’s statements under the spontaneous statement exception to the hearsay rule (Evid. Code, § 1240). The court found that “a murder and a shooting . . . is incredibly startling and frightening.” It further found that Ruiz’s statements were made before there was time to contrive and misrepresent, noting that Ruiz made his statements soon after the shooting, and that Ruiz’s demeanor and behavior demonstrated he was still overcome with nervous excitement. Additionally, the court determined that Ruiz’s statements to the officer were nontestimonial. The court found that Officer Vasquez was not seeking to elicit testimonial evidence for later use at trial, but asking general questions to locate an at-large shooting suspect. Appellants Estrada and Garcia contend the trial court abused its discretion in admitting Ruiz’s statements, arguing (1) that the statements were made after Ruiz had sufficient time to contrive and misrepresent, that (2) they went beyond the circumstances of the shooting, and (3) that they were testimonial. We find no error in the trial court’s admission of Ruiz’s statements.

Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” To be admissible under the spontaneous statement exception, “‘(1) there must be some occurrence startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’” (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi), quoting Showalter v. Western R.R. Co. (1940) 16 Cal.2d 460, 468.) “Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court’s discretion. [Citation.] We will uphold the trial court’s determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception. [Citations.]” (People v. Merriman (2014) 60 Cal.4th 1, 65.)

Here, the record supports the trial court’s finding that Ruiz’s statements to Officer Vasquez were spontaneous. Rosales was shot between 2:28 p.m. -- the last time his cell phone was used -- and 2:40 p.m. -- the time Officer Vasquez arrived at Rosales’s house. Officer Vasquez spoke with Ruiz shortly after arriving at the house. Ruiz appeared to be in shock, his eyes were wide open, and he was pacing back and forth. When speaking with the officer, Ruiz spoke very rapidly in broken sentences and with a high-pitched voice. The record thus supports the trial court’s determination that Ruiz was still under the influence of startling events when he made his statements to the officer. (See Poggi, supra, 45 Cal.3d at pp. 319-320 [declarant’s statements spontaneous although she made them 30 minutes after attack, after she had become calm enough to speak coherently, and in response to officer’s questions].)

Appellants contend Ruiz’s statements went beyond describing the shooting and murder, noting that Ruiz provided an explanation of what caused Rosales to call Ruiz and ask him for a ride. Evidence Code section 1240 permits statements explaining an event. Ruiz’s statement that Rosales wanted a ride in order to meet Estrada at a laundromat explained why Ruiz was at the scene of the shooting and why he saw Estrada there. In short, the trial court did not abuse its discretion in admitting Ruiz’s statements to Officer Vasquez under Evidence Code section 1240.

Appellants further argue that admission of Ruiz’s statements violated their confrontational rights because the statements were testimonial. In Davis v. Washington (2006) 547 U.S. 813, the United States Supreme Court explained that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822)

In People v. Chism (2014) 58 Cal.4th 1266, the California Supreme Court applied this reasoning to determine that an unavailable percipient witness’s statements to an officer about a shooting were nontestimonial. In reaching this conclusion, the court noted: “Officer Romero was the first officer to arrive at the scene, and Miller was the first person he contacted. Miller appeared to be ‘very nervous’ and ‘shaken up.’ The circumstances of the encounter, which took place outside a store where a shooting had recently occurred, reveal that Miller and Officer Romero spoke to each other in order to deal with an ongoing emergency. It was objectively reasonable for Officer Romero to believe the suspects, one of whom presumably was still armed with a gun, remained at large and posed an immediate threat to officers responding to the shooting and to the public. We are convinced that Miller’s additional statements concerning his observations and descriptions of the suspects were made for the primary purpose of meeting an ongoing emergency and not to produce evidence for use at a later trial.” (Id. at p. 1289.) Here, as the trial court found, Officer Vasquez questioned Ruiz -- a witness who was still demonstrably shaken and distraught from observing a shooting at close range minutes before -- to deal with an ongoing emergency -- locating and apprehending an at-large shooter. Although Officer Vasquez was not the first officer to arrive at the scene and he spoke with other officers who identified Ruiz as a possible witness, those facts are not dispositive. The record indicates Officer Vasquez was the first officer to speak with Ruiz about the shooting incident. We conclude that Ruiz’s statements were nontestimonial.

B. The Trial Court did not Err in Admitting Kalac’s Testimony Over Hearsay Objections.

The trial court permitted Kalac to testify that Estrada stated “she had someone that they could come up on” under the adoptive admissions exception to the hearsay rule. In support of its evidentiary ruling, the court stated that any “law-abiding citizen standing there when there’s a conversation going on about come up or robbery [or] however you want to phrase it, would leave. [Or say:] ‘I’m not participating in that. I’m gone.’” Appellants Gonzalez and Garcia contend the court erred in admitting Estrada’s statement, as there was no evidence that they heard or understood “come up on” to mean “rob.” We find no abuse of discretion.

Evidence Code section 1221 provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other

conduct manifested his adoption or his belief in its truth.” “In determining whether a statement is admissible as an adoptive admission, a trial court must first decide whether there is evidence sufficient to sustain a finding that: (a) the defendant heard and understood the statement under circumstances that normally would call for a response; and (b) by words or conduct, the defendant adopted the statement as true.” (People v. Davis (2005) 36 Cal.4th 510, 535.) “For the adoptive admission exception to the hearsay rule to apply, . . . it is enough that the evidence showed that the defendant participated in a private conversation in which the crime was discussed and the circumstances offered him the opportunity to deny responsibility or otherwise dissociate himself from the crime, but that he did not do so.” (Id. at p. 539.) Here, Kalac was cross-examined on the meaning of the term “come up on,” and he maintained that it was slang for “rob.” The trial court was entitled to credit Kalac’s testimony and conclude that Gonzalez and Garcia understood the term and adopted Estrada’s plan to rob Rosales. Moreover, were we to find error in admitting that portion of Kalac’s testimony, we would deem it harmless, as Kalac testified that the principal subject of all three appellants’ conversation was robbing Rosales. Thus, it is not probable that Gonzalez and Garcia would have achieved a more favorable result had Estrada’s use of the term “come up on” been excluded. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1308 [erroneous admission of hearsay statement reviewed for error under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].)

C. Appellants Fail to Demonstrate the Trial Court Prejudicially Erred in Instructing the Jury on Kalac and on Corroboration of his Testimony.

The trial court instructed the jury to determine whether Kalac was an accomplice, and further instructed that if the jury found Kalac was an accomplice, it could credit his testimony concerning the robbery only if such testimony was supported by independent corroborating evidence. Appellants contend the court erred in not instructing the jury that Kalac was an accomplice as a matter of law. They further contend there was insufficient evidence to corroborate Kalac’s testimony. Alternatively, appellants contend that the jury instructions on accomplice testimony were incomplete or inaccurate, as (1) the instructions failed to advise the jury that the statements of one accomplice may not be used to corroborate another accomplice’s testimony, and (2) that the instructions permitted the jury to use Kalac’s out-of-court statements to corroborate his trial testimony.

1. The Trial Court did not Err in Failing to Instruct the Jury that Kalac was an Accomplice as a Matter of Law.

Under section 1111, “[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” “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.” (People v. Brown (2003) 31 Cal.4th 518, 555.) Under section 1111, “[a]n accomplice is . . . defined 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.” “This definition encompasses all principals to the crime [citation], including aiders and abettors and coconspirators. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 90 (Stankewitz).) “Whether someone is an accomplice is ordinarily a question of fact for the jury; only if there is no reasonable dispute as to the facts or the inferences to be drawn from the facts may a trial court instruct a jury that a witness is an accomplice as a matter of law.” (People v. Valdez (2012) 55 Cal.4th 82, 145-146 (Valdez).)

Appellants contend that based on Kalac’s own testimony, he was an aider and abettor to Rosales’s murder, as Kalac understood that appellants were planning to rob Rosales of drugs and gave Estrada money to rent another hotel room. Aider and abettor liability requires proof that the aider and abettor intended to assist the direct perpetrators in achieving their unlawful ends. (Valdez, supra, 55 Cal.4th at pp. 146-147.) Although “‘an act [that] has the effect of giving aid and encouragement, and . . . is done with knowledge of the criminal purpose of the person aided, may indicate that the actor intended to assist in fulfillment of the known criminal purpose,’” “‘the act may be done with some other purpose [that] precludes criminal liability.’” (Id. at p. 147, quoting People v. Beeman (1984) 35 Cal.3d 547, 559.) Thus, where there is no direct evidence that a witness acted with the requisite knowledge and intent, the witness is not an accomplice as a matter of law. (See, e.g., Valdez, supra, at pp. 146-147 [witness not accomplice as matter of law despite evidence that he drove perpetrators to crime location after being told by perpetrators that they had to go there “‘to take care of something,’” which witness understood to mean assault or kill someone].)

Here, Kalac denied any intent to assist or facilitate the robbery. He also testified he gave Estrada his money unwillingly, and asserted that he was present in the hotel room only because Garcia told him they were going to a birthday party. Thus, although the evidence may have permitted a finding that Kalac was an accomplice, it did not compel that finding as a matter of law. (See, e.g., People v. Carrasco (2014) 59 Cal.4th 924, 969 [witness not accomplice as matter of law although he accompanied defendant to crime scene and helped defendant escape after murder, where witness denied knowledge of and intent to assist defendant in committing robbery and claimed defendant forced him to assist in escape]; People v. Williams (2008) 43 Cal.4th 584, 637 [witness not accomplice as matter of law where he denied having the intent to further defendant’s criminal purpose and claimed to be present with defendant for another reason]; see also Stankewitz, supra, 51 Cal.3d at p. 90 [presence at the scene of a crime or failure to prevent its commission insufficient to establish aiding and abetting].) The fact that Kalac asserted his Fifth Amendment right to remain silent and was granted use immunity is not dispositive. (See, e.g., Stankewitz, supra, at p. 90 [“The fact that a witness has been charged or held to answer for the same crimes as the defendant and then has been granted immunity does not necessarily establish that he or she is an accomplice.”].) In short, whether Kalac was an accomplice was properly left for the jury to determine.

2. Kalac’s Testimony was Sufficiently Corroborated.

Appellants’ contention that Kalac’s testimony was not sufficiently corroborated derives from their contention he was an accomplice as a matter of law. But where the jurors reasonably could have found that a witness was not an accomplice, “we need not . . . decide whether there was sufficient corroborating evidence as to each defendant.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 432, italics omitted; see also People v. Santo (1954) 43 Cal.2d 319, 326-327 [“Since it could be inferred that [the witness] was not an accomplice, the question whether he was, was properly left to the jury, and as a reviewing court, we are bound to presume in favor of affirming the judgment that the jury found that he was not an accomplice.”].) Nevertheless, we agree with the trial court that Kalac’s testimony was sufficiently corroborated.12 (See People v. Williams, supra, 43 Cal.4th at pp. 636-637 [even if trial court erred in refraining from instructing jury that witness was accomplice as a matter of law, error was harmless because there was sufficient corroborating evidence”].) “‘Corroborating evidence may be slight [and] may be entirely circumstantial’ [citation], and although that evidence must implicate the defendant in the crime and relate to proof of an element of the crime, it need not be sufficient to establish all the elements of the crime. [Citation.]” (Id. at p. 638, quoting People v. Hayes (1999) 21 Cal.4th 1211, 1271.) Here, forensic evidence and testimony by other witnesses sufficiently corroborated key aspects of Kalac’s testimony and connected appellants to the crime of robbery. Kalac’s testimony that appellants decided to rob Rosales because they had no drugs or money was corroborated by the fact that Gonzalez only had 25 cents on his person when he was arrested later that day. Ruiz stated that Rosales was expecting to meet Estrada at the laundromat. When Estrada appeared, however, she was accompanied by two Hispanic males, suggesting that the perpetrators intended to rob Rosales. Had they intended to purchase drugs, only Estrada’s presence would have been necessary. Ruiz also stated that after Rosales was killed, the shooter tried to pull Ruiz out of the car, suggesting that the perpetrators wanted to steal any drugs Rosales had brought with him.

Moreover, Kalac’s testimony was sufficiently corroborated as to each appellant. Estrada was connected to the crime by Ruiz’s statements that she was to blame for Rosales’s death. Ruiz identified Estrada as the person who pointed at Rosales before he was shot. In a recorded statement, Estrada admitted using Jennifer’s cell phone to call Rosales before he died. (See People v. Gurule (2002) 28 Cal.4th 557, 628 [accomplice’s testimony may be corroborated by defendant’s own statements].) She used a cell phone other than her own, but attempted to hide that fact from Rosales. In addition, Estrada moved from the Crystal Inn to the American Inn just before the murder, suggesting she was looking for a place of safety or a hideout following the robbery. (See People v. Perry (1972) 7 Cal.3d 756, 772 [“[A]ttempts of an accused to conceal . . . his whereabouts . . . may warrant an inference of consciousness of guilt and may corroborate an accomplice’s testimony.”] overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28.) Finally, she was arrested with Gonzalez outside her house, hours after Rosales’s death.

As to Gonzalez, he admitted being the shooter. The fact that he had no money on him when he was arrested suggests that robbery, not a drug purchase, was the goal.

Garcia was connected to the crime by (1) the use of his cellular phone to contact Rosales, (2) video surveillance showing a second male following Gonzalez out of the hotel to the laundromat, and (3) Ruiz’s statements that there were two Hispanic males with Estrada. (See People v. Chism, supra, 58 Cal.4th at p. 1301 [accomplice’s testimony partly corroborated where video surveillance showed two African-Americans entering and leaving store at time of robbery and defendant was African-American].) Moreover, when Garcia was arrested, he fled, suggesting a consciousness of guilt. “Flight tends to connect an accused with the commission of an offense and may indicate that an accomplice’s testimony is truthful.” (People v. Perry, supra, 7 Cal.3d at p. 771.) In short, Kalac’s testimony was sufficiently corroborated.13

3. The Jury Instruction on the Evidence Required to Corroborate an Accomplice’s Testimony was not Erroneous.

Appellants’ claim that the jury was improperly instructed on the kind of evidence that could be considered as corroborating evidence is forfeited, as they failed to timely object to the instructions. More important, as the jury reasonably could find Kalac was not an accomplice, no corroborating evidence was necessary, and thus any instructional error was not prejudicial. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 432.) Even were we to consider appellants’ claim, we would find no prejudicial error. First, it is not reasonably likely that the jury would have used Estrada’s statement (that she had someone that they could “come up on”) and Garcia’s statement (“Shit went bad”) -- set forth in Kalac’s trial testimony -- to corroborate Kalac’s other testimony. The accomplice instruction, as given, clearly stated that the corroborating evidence must be “independent of the accomplice’s testimony.” Second, it is unlikely the jury believed it could use Kalac’s out-of-court statements (to San Angelo) to corroborate his trial testimony, as the accomplice instruction does not distinguish between an accomplice’s out-of-court statements and his in-court statements. (See People v. Andrews (1989) 49 Cal.3d 200, 214 [trial court had no sua sponte duty to modify accomplice instructions to provide that accomplice corroboration rule applied to out-of-court statements, as “gist of those instructions was that accomplices were to be distrusted, and that their testimony could not furnish the sole basis for a conviction”].)

D. Any Instructional Error in Failing to Instruct on Malice Murder, Lesser Included Offenses of Murder and Defenses to Murder was not Prejudicial.

The jury was instructed on first degree felony murder and first degree felony murder as an aider and abettor. Aside from felony murder, the jury was not instructed on any other theory of murder. Appellants contend the trial court erred when it failed to instruct, sua sponte, on malice murder and its lesser included offenses, as well as the true defenses of accident and self-defense.

“‘The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.’ [Citations.] ‘That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.’ [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 866.) “The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative.” (People v. Lewis (2001) 25 Cal.4th 610, 646.)

As the California Supreme Court has explained, the duty to instruct on lesser included offenses “does not require or depend on an examination of the evidence adduced at trial. The trial court need only examine the accusatory pleading. When the prosecution chooses to allege multiple ways of committing a greater offense in the accusatory pleading, the defendant may be convicted of the greater offense on any theory alleged [citation], including a theory that necessarily subsumes a lesser offense. The prosecution may, of course, choose to file an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily subsumes a lesser offense. But so long as the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and so long as there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense. This allows the jury to consider the full range of possible verdicts supported by the evidence and thereby calibrate a defendant’s culpability to the facts proven beyond a reasonable doubt.” (People v. Smith (2013) 57 Cal.4th 232, 244.)

Here, the prosecution chose not to amend the information to allege solely felony murder; thus, appellants remained charged with malice murder under section 187. Although the failure to specifically allege felony murder in the information did not foreclose the prosecutor from pursuing that theory at trial (see People v. Morgan (2007) 42 Cal.4th 593, 616), under the accusatory pleadings test, appellants were entitled to instructions on malice murder and the lesser included offenses to murder, if warranted by substantial evidence. Appellants contend that Ruiz’s statements to Officer Vasquez were sufficient to support an instruction on first degree premeditated and deliberate murder, that Kalac’s testimony supported an instruction on the lesser included offense of involuntary manslaughter, and that Gonzalez’s testimony was sufficient to support instructions on the lesser included offenses of second degree murder, voluntary manslaughter based on imperfect self-defense and voluntary manslaughter based on provocation, as well as instructions on the defenses of self-defense and accident. We need not address these contentions, as we conclude any error was harmless. (See People v. Breverman (1998) 19 Cal.4th 142, 178 [in a noncapital case, error in failing sua sponte to instruct on lesser offenses is reviewed for prejudice exclusively under Watson]; see also People v. Earp (1999) 20 Cal.4th 826, 886 (Earp) [reviewing court need not decide whether substantial evidence supported instructions on lesser included offenses of second degree murder and involuntary manslaughter where any instructional error would necessarily be harmless].)

It is not reasonably probable that appellants would have obtained a more favorable outcome had the jury been instructed on malice murder, its lesser included offenses and the defenses of accident and self-defense. The jury found beyond a reasonable doubt that appellants were guilty of first degree murder for a death that occurred during the perpetration or attempted perpetration of a robbery. Accordingly, the failure to instruct on first degree murder was not prejudicial, as that instruction would merely have provided the jury with another theory on which to convict appellants of first degree murder. Nor was the failure to instruct on accident and self-defense prejudicial, as neither accident nor self-defense is a defense to felony murder. (See People v. Cavitt (2004) 33 Cal.4th 187, 197 [“The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony”]; In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [“[O]rdinary self-defense doctrine -- applicable when a defendant reasonably believes that his safety is endangered -- may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is justified”] second italics added; cf. People v. Loustaunau (1986) 181 Cal.App.3d 163, 170 [“When a burglar kills in the commission of a burglary, he cannot claim self-defense, for this would be fundamentally inconsistent with the very purpose of the felony-murder rule.”].)

Additionally, the jury’s return of guilty verdicts on felony murder charges and true findings on the robbery special circumstance allegations necessarily resolved factual issues related to lesser included offenses of malice murder against appellants. In determining whether appellants were guilty of murder under the felony-murder theory, the jury was required to determine first whether appellants committed or attempted to commit robbery, and only thereafter whether a death occurred during the commission of the robbery or attempted robbery. Thus, it is not reasonably probable that appellants would have obtained a more favorable outcome had the jury been instructed on the lesser included offenses of murder. (See, e.g., People v. Elliot (2005) 37 Cal.4th 453, 476 (Elliot) [trial court’s failure to instruct on second-degree murder harmless beyond a reasonable doubt because “the true finding as to the attempted-robbery-murder special circumstance establishes here that the jury would have convicted defendant of first degree murder under a felony-murder theory, at a minimum, regardless of whether more extensive instructions were given on second degree murder”]; People v. Koontz (2002) 27 Cal.4th 1041, 1086-1087 (Koontz) [any error in failing to instruct the jury on the definition of manslaughter and the doctrine of unreasonable self-defense harmless, as jury necessarily rejected the unreasonable self-defense theory in returning a true finding on the robbery special-circumstance allegation]; Earp, supra, 20 Cal.4th at p. 886 [any error to instruct on second degree murder and involuntary manslaughter harmless where jury expressly found the existence of two special circumstance allegations. “Given these findings, the jury necessarily determined that the killing of [the victim] was first degree felony murder perpetrated in the commission of rape and lewd conduct and not any lesser form of homicide”]; accord, People v. Castaneda (2011) 51 Cal.4th 1292, 1328; People v. Horning (2004) 34 Cal.4th 871, 906.)

To the extent Campbell, supra, 233 Cal.App.4th 148, suggests that the jury’s guilty verdicts on felony murder and its true findings on a robbery special circumstance allegation do not render the failure to instruct on lesser included offenses of malice murder harmless under Watson, we respectfully disagree. The appellate court in Campbell distinguished Earp, Koontz, and Elliott on the ground that in those cases, the jury was instructed on both felony murder and premeditated and deliberate murder. (See Campbell, at p. 167.) As noted, however, an instruction on premeditated and deliberate murder would have done no more than allow the jury to convict appellants under another theory of first degree murder. Accordingly, any instructional error here was harmless.


E. There was no Cumulative Error.

Appellants contend that even if harmless individually, the cumulative effect of the claimed trial errors mandates reversal of their convictions. Because we have rejected appellants’ other claims, their claim of cumulative error fails. (See People v. Sapp (2003) 31 Cal.4th 240, 316; People v. Seaton (2001) 26 Cal.4th 598, 692.)


F. The Jury’s Findings on the Robbery Special Circumstance Allegation were Supported by Sufficient Evidence.

The jury was instructed that in order to return true findings on the robbery special circumstance allegation for a defendant who was not the actual killer, the prosecution was required to prove: (1) that the defendant’s participation in the crime began before or during the killing; (2) that the defendant was a major participant in the crime; and (3) that when the defendant participated in the crime, he or she acted with reckless indifference to human life. The jury returned true findings on the special circumstance as to all appellants. Appellants Estrada and Garcia contend there was insufficient evidence to support the jury’s true findings, arguing that they were not major participants in the attempted robbery of Rosales. In determining this issue, we draw guidance from Banks, supra, 61 Cal.4th 788.14 Banks involved a defendant, Matthews, who was found guilty of first degree murder under a felony-murder theory, based on evidence that he was the getaway driver following an armed robbery. (Id. at p. 794.) As Matthews was not the actual killer, the court addressed whether he was liable for life imprisonment without the possibility of parole under section 190.2, subdivision (d). The section provides: “[E]very person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.” (§ 190.2, subd. (d).)

After stating that “Matthews’s culpability for first degree felony murder is not in dispute” (Banks, supra, 61 Cal.4th at p. 794), the court set forth nonexclusive factors for a jury to consider in determining whether an accomplice is a “major participant” as that term is used in section 190.2, subdivision (d). These factors include: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Banks, at p. 803, fn. omitted.) The court reiterated that “[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient.” (Ibid.)

Applying those factors to the case, the court found that while there was substantial evidence Matthews acted as the getaway driver, “[n]o evidence was introduced establishing Matthews’s role, if any, in planning the robbery. No evidence was introduced establishing Matthews’s role, if any, in procuring weapons.” (Banks, supra, 61 Cal.4th at p. 805, fn. omitted.) “During the robbery and murder, Matthews was absent from the scene, sitting in a car and waiting. There was no evidence he saw or heard the shooting, that he could have seen or heard the shooting, or that he had any immediate role in instigating it or could have prevented it.” (Ibid.) The court concluded that on this record, “Matthews was, in short, no more than a getaway driver” and “cannot qualify as a major participant under section 190.2(d).” (Id. at pp. 805 & 807.)

Here, there was substantial evidence that Estrada and Garcia were major participants in the robbery. (See Banks, supra, 61 Cal.4th at p. 804 [in reviewing sufficiency of evidence supporting special circumstance allegation, appellate court considers the record in light most favorable to the judgment].)15 Estrada was identified as the person who first proposed robbing Rosales. She set up the robbery by calling Rosales and asking him to meet her at the laundromat. Estrada also was identified at being at the scene, and pointing Rosales out to the shooter. After the shooting occurred, she did not call 911 to assist the victim, or call the police to report a killing. Rather, she spent the afternoon with the shooter, Gonzalez, until they were arrested later that evening. On this record, there was sufficient evidence for the jury to find that Estrada was a major participant under section 190.2, subdivision (d).

Garcia was present when Estrada proposed robbing Rosales. There was evidence he participated in the planning of the robbery with Estrada and Gonzalez and offered to assist as a lookout. His phone showed calls to Rosales shortly before the murder. Garcia was present at the scene, “in a position to facilitate or prevent the actual murder.” (Banks, supra, 61 Cal.4th at p. 803.) He made no attempt to prevent the shooting or to notify authorities after the killing. Instead, he walked away from the scene with Gonzalez. The evidence was sufficient to support the jury’s finding that Garcia was a major participant under section 190.2, subdivision (d).

G. The Imposition of a Parole Revocation Fine was Erroneous.

As to each appellant, the abstract of judgment reflects the imposition of a $300 parole revocation fine. However, in its oral pronouncement of judgment, the trial court did not impose a parole revocation fine. Moreover, as appellants were sentenced to life imprisonment without the possibility of parole, parole revocation fines are inapplicable. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) We will modify the abstracts of judgment to conform to the trial court’s oral sentencing decision. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)


DISPOSITION

The abstracts of judgment are modified to delete the $300 parole revocation fines. The clerk of the superior court is directed to prepare amended abstracts of judgment reflecting these changes and to forward certified copies to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.



CERTIFIED FOR PUBLICATION.

MANELLA, J.


We concur:

EPSTEIN, P. J. WILLHITE, J.




5Banks was published after appellants filed their opening briefs, and its holding was first addressed in appellants’ reply brief. We requested and received supplemental letter briefs on the applicability of Banks to the facts of this case.


6 As Gonzalez was the actual killer, he is not entitled to the analysis set forth in Banks. Instead, under section 190.2, subdivision (b), he is statutorily eligible for life imprisonment without the possibility of parole. (See § 190.2, subd. (b) [“[A]n actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.”].)

7Although in Banks, the court held that Brousseau’s knowledge that Lopez was armed, standing alone, was insufficient to establish reckless indifference to human life, it declined to overrule Lopez. (Banks, supra, 61 Cal.4th at p. 809, fn. 8.)

8Contrary to her contention, it was not physically impossible for Estrada to have been present at the shooting. She left the Crystal Inn at 2:21 p.m., and drove to the American Inn, which took approximately four minutes. After checking into the hotel, she received a phone call from Rosales at 2:28 p.m. and left shortly thereafter. As it took only 30 seconds to drive to the location, Estrada could have been present when Rosales was shot. In her recorded call with her aunt, Estrada said Ruiz had inaccurately described her clothing, but did not deny being at the scene.



9Although the jury found not true the allegation that a principal was armed with a firearm, we may consider Ruiz’s account of Gonzalez’s use of a gun to support an enhancement. (See People v. Medina, supra, 245 Cal.App.4th at p. 791, fn. 4 [for purposes of finding special circumstance under section 190.2, subdivision (d), “jury could consider evidence that Medina was armed and used his gun even though the jury acquitted Medina of the personal use of a firearm enhancement”].)

10All further statutory citations are to the Penal Code, unless otherwise stated.

11 Use immunity precludes prosecutors from using a witness’s testimony in a later proceeding. A witness granted use immunity may still be prosecuted based on other evidence obtained independently.

12We attach no significance to the posttrial remarks of the trial court that it believed Kalac was an accomplice, particularly in light of the fact that the court instructed the jury, without defense objection, to determine whether Kalac was an accomplice.

13 As Kalac’s testimony was corroborated, we reject appellants’ claim that the trial court erred in denying their motions for acquittal under section 1118.1. We also reject their claim that there was insufficient evidence to support the jury’s factual determination that appellants committed or attempted to commit a robbery. Whether there was sufficient evidence to support the jury’s true findings on the robbery special circumstance allegation for sentencing under section 190.2, subdivision (d) is addressed in Part F, infra.

14Banks was published after appellants filed their opening briefs, and its holding was first addressed in appellants’ reply brief. We requested and received supplemental letter briefs on the applicability of Banks to the facts of this case.


15 As Gonzalez was the actual killer, he is not entitled to the analysis set forth in Banks. Instead, under section 190.2, subdivision (b), he is statutorily eligible for life imprisonment without the possibility of parole. (See § 190.2, subd. (b) [“[A]n actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.”].)

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