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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Natalie Nadine GUIUAN, Defendant and Appellant.

No. A073962.

Decided: June 19, 1997

Shulman, Shulman & Siegel, Corinne S. Shulman, under appointment by the Court of Appeal, Hydesville, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General;  Mia Anna Mazza, Deputy Attorney General, for Plaintiff and Respondent.

Natalie Nadine Guiuan (appellant) timely appeals from a judgment of conviction after a jury trial in which she was found guilty of one count each of attempted first degree murder (Pen.Code, §§ 187, 664 [count 1] ),1 kidnapping (§ 207, subd. (a) [count 2] ), and conspiracy to commit first degree murder (§ 182.1, subd. (a)(1) [count 3] ).   The jury also found true an allegation under section 12022, subdivision (b), that appellant personally used a deadly weapon in the commission of count 1. Appellant was sentenced on count 3 to 25 years to life in state prison, with the sentences on counts 1 and 2 stayed pursuant to section 654.

Appellant claims the trial court erred by:  (1) failing to instruct the jury on the relevance and effect of her mental condition at the time of the offenses;  (2) giving an unmodified accomplice instruction which would cause the jury to distrust testimony favorable to the her;  and (3) giving CALJIC No. 2.90 as revised in 1994 to eliminate references to “moral certainty” and “moral evidence.”   In the unpublished portions of this opinion, we reject appellant's first and third claims, finding no error on either point.   In the published portion of the opinion, we conclude the trial court had a duty sua sponte to tailor CALJIC No. 3.18 to relate only to accomplice testimony which was favorable to the prosecution.   However, in a further unpublished section, we conclude that the trial court's failure to do so was harmless.   Because we have thus found no reversible error in the trial court's instructions to the jury, we affirm.

I. Factual And Procedural Background

The facts of this case are somewhat disjointed, and relate to a series of events in late June and early July 1994.   Fundamentally, and without substantial dispute, the evidence showed that on July 8, 1994, appellant and three juvenile coconspirators kidnapped and tried to kill appellant's good friend, Kimberly Marston.2  The only genuine factual dispute in this case centers on appellant's principal defense, i.e., that she suffered from a “Borderline Personality Disorder” which prevented her from forming the requisite mental state for each of the offenses of which she was convicted, or caused her to harbor an honest but unreasonable belief in the need to protect herself and/or her four daughters against Marston.


II. Discussion

A. The Trial Court Did Not Commit Reversible Error by Denying Appellant's Request for a Verbatim Reading of CALJIC No. 3.32.**B. The Trial Court Did Not Commit Reversible Error by Failing to Modify CALJIC No. 3.18 Sua Sponte.

The standard version of CALJIC No. 3.18, as given to the jury, provides:  “The testimony of an accomplice ought to be viewed with distrust.   This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution in the light of all the evidence in the case.”   This instruction was read to the jury without objection from appellant, along with other pattern jury instructions (CALJIC Nos. 3.10, 3.11, 3.12, 3.13, 3.14, 3.18, and 3.19) stating principles of law applicable to accomplice testimony.   Appellant contends, however, that the trial court had a duty sua sponte to modify CALJIC No. 3.18 to inform the jury that the distrust accorded to accomplice testimony is inappropriate for certain testimony given by her accomplices which she views as favorable to her.   We conclude that any error on this point was harmless.

1. The Accomplices' Testimony.

There is no gainsaying that all three of appellant's teenaged accomplices-Elisha, Joshua and Prince-were crucial witnesses for the prosecution.6  The accomplices' testimony about the events leading up to the attempted murder of Marston varied in some details but was otherwise and in all material respects consistent with each other's, and with that of other eyewitnesses including appellant, Marston, and appellant's teenaged daughter, Kimberly S.

All these witnesses described several instances of bizarre behavior by appellant, which began after she started working as a confidential informant for the San Mateo County Narcotics Task Force, and around the time she began having problems with Kimberly S., who had recently returned to live with appellant and her three younger daughters after many years of separation.   Several witnesses, accomplices and nonaccomplices alike, also testified about heavy methamphetamine usage by appellant with Marston and with the teenagers.   According to all the relevant witnesses, appellant believed unknown persons-possibly gang members-were spying on her while she was in her house, following her as she drove in her car, and wanted to harm her and her children.   Appellant admitted she was afraid people were out to get her because of her own work as a “snitch.”   However, all the witnesses agreed that appellant tried to convince them Marston and a teenaged friend of hers, Jason M., were the “snitches,” and that Marston was thus to blame for putting appellant and her children in danger.

The accomplices were also consistent in describing appellant as the leader and driving force behind the confinement of Marston, the plan to kill her, and the execution of that plan.   Whereas Marston was blindfolded and bound for some of the time such that she could not always see who did what, at least one of the three accomplice witnesses was able to observe appellant's behavior at all relevant times during these events.   Elisha testified in great detail about the plan to kill Marston, which was formulated during a conversation with appellant on the night of July 7 and into the early morning hours of July 8. Much of the planning was done in the presence of Kimberly S., who corroborated Elisha's account.

Early in the morning on July 8, the three accomplices accompanied appellant in her car to Prince's house, where Marston had been confined overnight in the basement, and took her to a hilly, isolated spot near Half Moon Bay chosen by Elisha and appellant.   Once there, Elisha took a bound, gagged and blindfolded Marston out of the car and down a hill out of view of the road.   After Elisha returned to the car, appellant went down the hill and, standing behind Marston, placed a knife to the back of Marston's neck.   Marston began to struggle, so appellant motioned Elisha to join her.   Then, as Elisha grabbed Marston's hair and pulled her head back, appellant dragged the knife across Marston's throat one to three times with enough force to cut.   Marston's throat was not visibly cut, however, because she managed to free her hands and put them up to her throat to protect it.   Marston's fingers were severely cut as she tried to get the knife away from appellant.   The rest of Marston's injuries were caused by punches to the face by Josh, numerous stabbings by Elisha and Josh, and blows to the head by Elisha and Josh with a tire iron appellant gave them and ordered them to use.   According to the accomplices, appellant returned to the car after trying to slit Marston's throat.   Once there, she told Prince to open the trunk and hood and pretend to work on the car.   Later, appellant took off with Prince and drove around for approximately 45 minutes while Elisha and Josh tried to finish killing Marston.   Once Marston stopped moving, appellant and the accomplices returned to appellant's home, where they cleaned the weapons used in the attack and placed their bloodied clothing in a plastic bag.   According to Kimberly S., appellant later discarded the bloody items in dumpsters in the Pacifica area.

Appellant cites a few particular passages from the accomplices' testimony for her argument that they gave testimony “favorable” to the defense.   For example, at one point in her testimony, Elisha agreed with defense counsel's leading statements that appellant “kept telling you she wanted [Marston] gone, away from her house,” and that appellant “never said, ‘I want [Marston] killed’ ” or “ ‘I want [Marston] dead.’ ”   Similarly, Josh testified that appellant never said she wanted Marston stabbed, knifed, or hurt, but only that she wanted Marston “out of here,” or “in a safe place,” or “taken care of.”

Appellant also points to certain portions of the accomplices' testimony which corroborates her claims that she thought she saw people with rifles outside her home who were using infrared scopes or beams to see inside, that she believed she was being followed when she took her children to a San Bruno motel, and that she believed Marston was putting her and her children at risk by sleeping with a “snitch,” Jason.   This testimony, appellant posits, supported her defense that she was suffering from a mental disorder, and laboring under the paranoid or stress-induced misconceptions that someone was out to get her and/or her children, that Marston was responsible for her plight, and that she believed-however unreasonably-that she needed to protect herself and her family.

Appellant also cites testimony by Prince that she became sick on the Half Moon Bay drive, pulled over, and said she couldn't go through with it;  that Elisha ordered him to drive away with appellant;  and that he complied with Elisha's order, driving around for 45 minutes while Elisha and Josh finished trying to kill Marston.   Appellant contends this testimony, too, supported the defense theory that she played a minimal role in the planning and execution of the offense, that she was in a psychotic state at the time of the offense, that she lacked an intent to kill, and that she was acting under duress from her teenage accomplices.

2. The Trial Court Had a Duty Sua Sponte to Tailor CALJIC No. 3.18 to Relate Only to Accomplice Testimony Favorable to the Prosecution.

In People v. Williams (1988) 45 Cal.3d 1268, 248 Cal.Rptr. 834, 756 P.2d 221 (Williams ), our Supreme Court stated the general rules governing the trial court's duty to instruct the jury about the trustworthiness of accomplice testimony:  “When an accomplice is called as a witness by the prosecution, the court must instruct the jurors sua sponte to distrust his testimony.   [Citations.]  When, by contrast, he is called by the defendant, the instruction should be given only at the defendant's request.  [Citations.]  Finally, when he is called by both parties, the instruction should be tailored [sua sponte] to relate only to his testimony on behalf of the prosecution.   [Citations.]”  (45 Cal.3d at p. 1314, 248 Cal.Rptr. 834, 756 P.2d 221.)

Appellant argues that, despite the phrasing of the rules in Williams, the relevant consideration is not really which party called the accomplice witness to the stand, but rather, whether the accomplice's testimony is favorable to the defendant.  People v. Graham (1978) 83 Cal.App.3d 736, 149 Cal.Rptr. 6, supports appellant in this regard.   In Graham, the court was confronted with the anomalous situation in which an accomplice was called by the prosecution but gave testimony that was entirely favorable to the defendant.   The court held it was error to give CALJIC No. 3.18, absent a request by the defendant, and reasoned as follows:  “The practice of instructing the jury to be skeptical of accomplice testimony developed in order to make the admission of such testimony against a criminal defendant fair.   [Citations.]  For experience has shown that an accomplice will often attempt to earn clemency or leniency by giving testimony unfavorable to the defendant.   [Citations.]  [¶] But, where an accomplice gives testimony favorable to the defendant many jurisdictions have held such an instruction to be improper.   [Citations.]  There is no basis then for the suspicion that the testimony was given in an attempt to obtain leniency.   As Wigmore said, ‘The essential element ․ is this supposed ․ expectation of conditional clemency.   If that is lacking the whole basis for distrust fails.’  [Citation.]  [¶] Similarly, the courts of this state have repeatedly held it to be error to instruct the jury that the testimony of an accomplice should be viewed with distrust where the accomplice testifies for the defendant.  [Citations.]  While these cases all deal with trials in which the accomplice was called as a witness on behalf of the defendant, we believe that it is equally erroneous to give such instructions in a situation where the witness was called by the People but testified in favor of the defendant.   We can see no meaningful distinction between the two situations.”  (83 Cal.App.3d at pp. 743-744, 149 Cal.Rptr. 6, italics in original.)

Respondent correctly notes that Graham, supra, is not on point because the accomplice testimony in that case was entirely favorable to the defendant.   (See 83 Cal.App.3d at p. 743, 149 Cal.Rptr. 6.)   Respondent argues that the instant case is more closely analogous to People v. Franco (1994) 24 Cal.App.4th 1528, 30 Cal.Rptr.2d 478.   In Franco, two accomplices were called as witnesses, one by the defense and one by the prosecution, and both gave testimony partially favorable and partially unfavorable to the defense.   The Second District rejected the defendant's claim that the trial court had a sua sponte duty to modify CALJIC No. 3.18 (and, thus, erred by giving the unmodified version of that pattern instruction), and held that the defendant waived his right to raise the issue on appeal by failing to object in the trial court.  (24 Cal.App.4th at pp. 1537-1539, 30 Cal.Rptr.2d 478.)   The Franco court explained:  “Apposite is People v. Miller (1960) 185 Cal.App.2d 59, 8 Cal.Rptr. 91 ․ where the prosecutor called an accomplice and then the defendant called the same accomplice.   The trial court gave the ‘view with distrust’ instruction without objection by defendant.   On appeal, defendant claimed error.  Miller rejected the claim, stating:  ‘[T]o permit the defendant in this case to claim error in the giving of the instruction under consideration would pervert the purposes of justice.   Under the authorities heretofore noted and the circumstances of this case, a failure to give that instruction would have been error.   It was given for the benefit and protection of the defendant.   If this benefit was outweighed by a disadvantage attributable to the fact that the witness was called by him, as well as by the People, he should have informed the trial court of his wishes in the premises, i.e., whether to accept or reject the instruction.   If the allegedly objectionable instruction had not been given, it is more than likely that the defendant would now be complaining because of such failure.   He may not sit silently during the course of his trial;  create a situation which may be to his advantage or disadvantage and require the court to make an election on his behalf without being bound by that election.   He must make his own election and advise the court thereof by requesting an instruction acceptable to him, or in some other appropriate manner.   To proceed otherwise is to require the court to choose one of two alleged evils and reserve to the defendant the right to claim error irrespective of the choice made.   This does not comport with justice.   Analogous applicable principles of law are found in the rules which foreclose a consideration of invited error ․;  require a party to make his election of remedies ․;  or support a waiver or estoppel based on conduct.’  (Id. at pp. 83-84, 8 Cal.Rptr. 91, internal citations omitted.)  [¶] The Supreme Court recently approved this statement in Miller observing:  ‘A comparable situation exists when an alleged accomplice testifies as a prosecution witness and then again as a defense witness, giving testimony favorable to both the prosecution and the defense, so that an instruction to view the witness's testimony with caution could be either beneficial or harmful to the defendant.   In such cases, contrary to the general rule that a jury instruction may be challenged on appeal even though no objection was raised at trial (§§ 1259;  1469;  People v. Hannon (1977) 19 Cal.3d 588, 600, 138 Cal.Rptr. 885, 564 P.2d 1203 ․ ), an objection to a cautionary instruction has been required before the defendant may assert error on appeal because a defendant “may not sit silently during the course of his trial;  create a situation which may be to his advantage or disadvantage and require the court to make an election on his behalf without being bound by that election.”   [Citations.]’ ”  (People v. Franco, supra, 24 Cal.App.4th at pp. 1538-1539, 30 Cal.Rptr.2d 478, quoting People v. Toro (1989) 47 Cal.3d 966, 975, 254 Cal.Rptr. 811, 766 P.2d 577;  People v. Miller (1960) 185 Cal.App.2d 59, 84, 8 Cal.Rptr. 91.)

We strongly agree with the Franco court that the “sua sponte duty” rule for cases involving both “favorable” and “unfavorable” evidence can lead to mischief.   However, we do not believe Franco can be reconciled with Williams, supra.   As the foregoing quote demonstrates, Franco relied on Miller, a 1960 case from the Fourth District Court of Appeal, and dicta from Toro, a 1989 Supreme Court case.   Neither the Franco court nor the Toro court referred to Williams, or appeared to notice that Williams and Miller involve the same factual circumstances:  an accomplice who was called by both the prosecution and the defendant, and the giving of an unqualified instruction that accomplice testimony should be viewed with distrust.  (Williams, supra, 45 Cal.3d at pp. 1313-1314, 248 Cal.Rptr. 834, 756 P.2d 221;  Miller, supra, 185 Cal.App.2d at p. 83, 8 Cal.Rptr. 91.)   The Williams court mentions Miller but cites it only for the dictum that CALJIC No. 3.18 must not be given where the accomplice is called to testify on behalf of the defense, unless the defendant requests it.  (Williams, supra, at p. 1314, 248 Cal.Rptr. 834, 756 P.2d 221, citing Miller, supra, at p. 82, 8 Cal.Rptr. 91.)   Although its discussion of the issue is quite cursory, Williams clearly holds that the trial court has a duty sua sponte to modify the “viewed with distrust” language in CALJIC No. 3.18 where the accomplice testifies on behalf of both the prosecution and the defense.   (Williams, supra, at p. 1314, 248 Cal.Rptr. 834, 756 P.2d 221.)   Such a duty, if it exists, obviates the need for an objection.   Thus, whether by oversight or design, the Supreme Court in Williams effectively overruled Miller.7

We are duty-bound to follow Williams.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   The only remaining question is which prong of the Williams test applies.   Respondent reads some language in Williams as literally meaning the jury must be instructed sua sponte to view with distrust the testimony of any accomplice “called” by the prosecution, regardless of the nature of the testimony given by that witness.   We doubt that the Supreme Court intended such a formalistic rule.   If an accomplice were called by the prosecution but gave testimony entirely favorable to the defendant (as did the accomplice in Graham ), or if an accomplice were called by the defense but gave testimony entirely favorable to the prosecution, the rules stated in Williams would lose their theoretical moorings.   We think the gloss Graham placed on the rules summarized in Williams is necessary to a sound application of those rules.   Thus, even though the accomplices in this case were “called” only by the prosecution, the trial court had a duty to modify CALJIC No. 3.18 sua sponte to the extent appellant's accomplices “gave testimony that can be construed as favorable to” the defense, and was required to “instruct the jurors that they should regard with distrust only [the accomplices'] testimony on behalf of the prosecution.”  (Williams, supra, 45 Cal.3d at pp. 1313-1314, 248 Cal.Rptr. 834, 756 P.2d 221.)

Like the accomplices here, the accomplice in Williams, Finckel, was described as “the prosecution's crucial witness” to prove the felony robbery-murder charged in that case.  (45 Cal.3d at p. 1313, 248 Cal.Rptr. 834, 756 P.2d 221.)   However, unlike the accomplices here, Finckel was also called as a witness for the defense and testified that on the night of the killing the defendant was acting as if he were under the influence of LSD, and that the defendant may in fact have taken the drug.  (Id. at p. 1314, 248 Cal.Rptr. 834, 756 P.2d 221.)   The Williams court held that the trial court erred by failing to modify CALJIC No. 3.18 sua sponte to instruct the jury to “regard with distrust only Finckel's testimony on behalf of the prosecution.”  (Id. at p. 1314, 248 Cal.Rptr. 834, 756 P.2d 221, italics added.)   We agree with appellant that there is no principled basis for distinguishing between this case and Williams.   The “favorable” testimony elicited in the defense case in Williams could as easily have been elicited on cross-examination during the prosecution's case-in-chief.   Likewise, in situations such as the one presented here, there is no need to call an accomplice back during the defense case if the witness has given all the “favorable” evidence needed or obtainable from that witness.

Viewing the supposedly “favorable” accomplice testimony in this case in context, it is not surprising that the trial court was not alerted to a duty to modify CALJIC No. 3.18.   Nevertheless, portions of the accomplices' testimony may be construed as favorable insofar as they lend support to appellant's theories of defense.   For that reason, the trial court was required to instruct the jurors sua sponte that they should regard with distrust only the accomplices' testimony which was favorable to the prosecution.  (Williams, supra, 45 Cal.3d at pp. 1313-1314, 248 Cal.Rptr. 834, 756 P.2d 221.)   Because it did not do so, we must decide whether the court's failure to modify CALJIC No. 3.18 was sufficiently prejudicial so as to warrant a new trial for appellant.   We turn now to that issue.

3. The Trial Court's Failure to Modify CALJIC No. 3.18 Was Harmless Error. ***

C. The 1994 Revision to CALJIC No. 2.90 Does Not Impermissibly Lower the Prosecution's Burden of Proof.***

III. Conclusion

For all the foregoing reasons, the judgment of conviction, including the sentence imposed by the trial court, is affirmed in its entirety.


1.   All statutory references are to the Penal Code unless otherwise specified.

2.   The relationship between appellant and Marston has been referred to as that of psychological parent and child.   Marston, who was 24 years old at the time of the attempted murder, described appellant as her “best friend” and said she referred to appellant as “Mom.” Appellant, who was 33 years old at the time of the offenses, referred to Marston as “Baby.”

FOOTNOTE.   See footnote *, ante.

6.   There is no dispute in this case that Elisha, Josh, and Prince were appellant's accomplices.

7.   We would welcome review by the high court of our decision on this accomplice instruction issue if we have misconstrued its decision in Williams as overruling Miller sub silentio.

FOOTNOTE.   See footnote *, ante.

PHELAN, Presiding Justice.


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