THE PEOPLE, Plaintiff and Respondent, v. VICTOR MANUEL MONGE et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Victor Manuel Monge, Matthew Andrew Garcia, and Abraham Ruben Acuna were convicted of first degree murder and were sentenced to various terms in state prison. In this consolidated appeal, they jointly contend (1) that the trial court erred in admitting certain out-of-court statements and two death photographs, and (2) that the trial court erred in giving certain jury instructions. Monge separately contends that the trial court erred in sua sponte precluding the prosecution from asking a question that would have resulted in a potentially exculpatory answer. Finding no prejudicial error, we affirm.
STATEMENT OF THE CASE
On May 20, 2008, the Los Angeles County District Attorney filed an information alleging that appellants had murdered Gloria Gaxiola on October 12, 2002 (Pen.Code, § 187, subd. (a)).1 It was further alleged that Garcia had used a handgun to commit the murder. Finally, it was alleged that appellants had suffered prior “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds.(b)-(i), 1170.12, subd. (a)-(d)) and prior serious felony convictions (§ 667, subd. (a)), and that Acuna had served a prior prison term for a felony conviction (§ 667.5, subd. (b)(1)).
Over defense objections, the trial court granted the prosecution's motion that the entire case be tried and decided by a single jury despite statements by Acuna and Garcia implicating other defendants. After a joint trial, on June 4, 2009, a jury convicted each appellant of murder and found that the murder was in the first degree. The jury found that the firearm enhancement allegations against Garcia were not true.
Each appellant waived his right to a jury trial on the prior conviction allegations. The trial court found that Garcia had two prior strike convictions and one prior serious felony conviction. It found that Acuna had one prior strike conviction, one prior serious felony conviction, and one prison prior. It further found that Monge had two prior strike convictions and two prior serious felony convictions.
The court sentenced Garcia to 80 years to life, Monge to 85 years to life, and Acuna to 55 years to life in state prison. Each appellant filed a timely notice of appeal.
STATEMENT OF THE FACTS
On October 12, 2002, at around 5:00 a.m., Fernando Rodriguez was working outside a fast-food restaurant when he saw a car go by the restaurant, dragging the body of a young woman.
About 20 minutes later, the car pulled up next to and to the left of Guillermo Nunez who had been waiting at a red light. The car then passed Nunez when the light changed, and Nunez, who was in a large sports utility vehicle, saw that the car was dragging a body that had long hair. The left leg of the body was caught in the right back passenger-side door. Both Nunez and the other vehicle continued down the street until they were stopped at another red light. Nunez then honked his horn, flashed his lights, and “yelled to the female who was sitting next to the driver to look in the back to see what they had. The person just lowered the window and looked.” Nunez then made a right turn. As he did so, he heard a woman scream but he did not stop or turn around.
Later that day, California Highway Patrol was called to investigate a scene where a female body had been “laid out” in the traffic lanes in that area. The subsequent investigation determined that the murder occurred in Turnbull Canyon and that the body had been dragged from there to the location where the body was found.
The body was identified as that of Gloria Gaxiola. During the subsequent murder trial, a deputy medical examiner from the Los Angeles County Coroner's Office, Dr. Ajay Panchal, testified that Gaxiola died from “multiple injuries,” including “a tight contact gunshot wound to the head,” which meant that the shooter put “the muzzle of the gun right up against the head.” In addition, Gaxiola had injuries to her neck. Specifically, she had abrasions, bruising, and a ligature mark on her head, which meant that a rope or cord had left a mark on her neck. Gaxiola also had injuries that were consistent with the theory that her body had been dragged on a paved asphalt surface. She had “abrasions, basically road rash ․ on the back of her head, the back ․ as well as the buttocks.”
Los Angeles County Deputy Sheriff Toni Martinez was assigned to investigate the homicide of Gaxiola. She interviewed many of Gaxiola's acquaintances and friends over the next five years, including several key prosecution witnesses who also testified at the murder trial, such as Sandra Cardenas, Damien Cortez, and Antonio Enriquez.
1. Testimony of Antonio Enriquez
Enriquez testified that, on October 11, 2002, he was at a house in El Monte with Acuna, Gaxiola, Andrea Baez, and his girlfriend, Flavia “Carrie” Estrada. Gaxiola and Acuna then left in a car in the late afternoon. Several hours later, Gaxiola came back to the house with Monge and Garcia, whom he knew by their monikers of Clever and Youngster. Garcia was “riled up, kind of anxious and kind of pushy and questioning like who were these people in the home, and who was I.” Enriquez had a “bad feeling” about Garcia's comments because Enriquez had met Garcia prior to that occasion. Enriquez also remembered that Sandra Cardenas was present, although he could not remember whether she arrived when Gaxiola and the two appellants showed up at the house.
Enriquez then received a call from a friend of Estrada, named Marisa. Marisa told Enriquez that Acuna was at her house and that she was going to pay for a taxi to take him to the El Monte house. Enriquez later saw Acuna walk in the house. Acuna asked him if he had drugs, and Enriquez gave what he had to Acuna. All three appellants and Gaxiola then went into a bedroom together. Cardenas was upset that they were in the bedroom so long. Enriquez thought that Cardenas was upset because she was in a relationship with Acuna at the time.
When the group came out of the bedroom, Enriquez asked Acuna “what was wrong.” Acuna told Enriquez that he “went to go do this lick” or robbery, but “everything went bad and he was left behind.” Acuna then asked Enriquez if he “wanted to go with him” to a “canyon” to smoke some marijuana, but Enriquez declined because he “had no idea what was going on.” Appellants and Gaxiola then left, and Cardenas followed them.
The next day, Acuna called Enriquez and asked to speak with him. Enriquez told Acuna his location and told Acuna to come alone. Before Acuna subsequently spoke with Enriquez, Enriquez learned from news reports that Gaxiola had been murdered. He was very upset. A few days later, Acuna came to Enriquez's home and they went for a drive in Acuna's car where they had a conversation. Enriquez testified that Acuna “kept telling me about the robbery, he was telling about the robbery at the hotel, and how she [Gaxiola] left him behind. I stopped him from telling me because I didn't want to know any of this.” Acuna told Enriquez that “when they came out from doing th[e] robbery, the car was not parked in the parking lot [any]more, that [Gaxiola] had left in the car, and that they were ․ convinced that I had something to do with her leaving [in] the car. That's why he wanted to talk to me.”
Acuna also told Enriquez that “her foot got stuck on the seatbelt when the crime occurred up on the canyon.” “[T]he only reason why they knew that she was stuck on the seatbelt was because a truck or something hit the high beams on them and that's when they pulled over and left her there.”
Enriquez was not an ideal prosecution witness. When initially interviewed by Detective Martinez, he denied knowing anything about the murder. At trial, he explained his initial denial as being based upon fear of retaliation. He stated that he believed he was risking his life by testifying “here today,” but he felt he was “doing the right thing” by testifying.
At trial, Enriquez identified each appellant. However, during a court appearance about a year before trial, Enriquez could not identify Monge as Clever, although he was able to identify Garcia as Youngster and to identify Acuna. Enriquez explained his failure to identify Monge on the prior occasion as being the result of not wearing glasses at that time. The prosecution also produced evidence that Enriquez had identified Monge in a photo lineup before that prior court appearance.
The defense also was able to produce evidence that suggested Enriquez might have been an accomplice to the murder of Gaxiola. During an interview on December 2, 2002, Patricia Alvarez told Detective Martinez that Enriquez had telephoned her, bragging that he was responsible for the death of “that girl” in Turnbull Canyon and that he “did it to that girl in Turnbull Canyon.” At trial, however, Alvarez testified that she did not remember making those statements. Enriquez admitted that Alvarez had been a close friend, but he denied ever making such statements to her.
Estrada's trial testimony also implicated Enriquez. Estrada testified that she heard Enriquez say, “she fucked up” and “we're going for a ride to take care of some business.” Estrada denied having previously told Detective Martinez that Acuna had made those comments. Estrada also testified that she did not recall that Enriquez became emotional after hearing about Gaxiola's murder, although he was “kind of ․ surprised.” She did recall Enriquez saying something like “she must have got[ten] her foot caught in the seatbelt,” although this occurred within a few days after they saw the news about Gaxiola's death on television.
Enriquez's testimony that Gaxiola and appellants were involved in a robbery at a hotel was corroborated by other evidence. Estrada testified that on the night of the murder, she heard a man she knew as Clever say that he had to “ ‘clean a nigger's blood’ off his shoes.” The prosecution also called Jamayner Zeron, an African-American male, to testify about how he was robbed on October 11, 2002. Zeron testified that in October 2002, he and his wife were living in a hotel room and selling drugs at that location. He had known Gaxiola for a few days before she telephoned and told him that she was coming to the hotel room. When Gaxiola came, Zeron opened the door for her but she told him that she wanted to get some ice. Zeron then started to close the door, but Gaxiola asked him to leave it ajar and he did so. About 15 minutes later, three people wearing bandanas burst into the hotel room and demanded drugs and money. Zeron and his wife were beaten severely and tied up. The robbers did not find any drugs or money and subsequently left. Gaxiola never returned.
2. Testimony of Sandra Cardenas
Sandra Cardenas was the other main prosecution witness. Like Enriquez, Cardenas initially told Detective Martinez that she did not know anything about the murder of Gaxiola. Cardenas explained that she did not speak with anyone about what she witnessed until 2007 because she was scared, and that she was still scared “now,” “more than ever now.” After talking with her father, however, she decided to tell the police what she witnessed. She called Detective Martinez and told the detective the same things that she testified to at trial.
Cardenas testified that, before the murder in October 2002, she had known Acuna for about two years. She had met Garcia one week before the murder, and had not met Monge or Gaxiola before then.
On October 11, 2002, Cardenas was “doing drugs” and “hanging out” at the El Monte house. She arrived at the house around 11:30 p.m. or midnight. Enriquez, Estrada, Garcia, and Monge were at the house. Later, Acuna and Gaxiola arrived and the two “went into a bedroom and they were there for quite a while.” Cardenas denied that she was jealous about Gaxiola going into the bedroom with Acuna. Acuna then came out and Cardenas heard him tell Enriquez in Spanish, “First one and then the other.” Cardenas did not know what Acuna meant by that comment, although she understood that he could be referring to two females.
Monge told Cardenas that he knew where they could get more drugs. Cardenas replied, “Wow, you are pretty lucky,” because she knew that it was hard to get drugs at that time of day. Monge asked Cardenas if she wanted to go, and she said “Yeah.” All three appellants, Cardenas, and Gaxiola then got into the same car. Acuna was the driver, Gaxiola sat in the front passenger seat, and Cardenas sat in the middle of the back seat, between Garcia and Monge.
After driving some distance, Acuna made a stop near some bushes and Garcia and Monge got out and walked toward the bushes. Cardenas believed that they went to get something. When they returned, Monge asked Cardenas to “scoot over” and she did so. Cardenas was now sitting behind Acuna, Monge was in the middle of the backseat, and Garcia was behind Gaxiola.
Acuna “drove and drove” until they reached “some hills.” Garcia then “attack [ed]” Gaxiola. Cardenas initially thought that Garcia was being playful, but then she realized that he was making a pulling motion as if he were pulling the “reins” of a “horse.” Cardenas told the men to “leave her alone.” But Monge held Cardenas and told her, “ ‘Just get back. Get back.’ ” Cardenas saw Gaxiola struggling, and heard Gaxiola say, “Please, no, God doesn't want me to die.” Cardenas put her hands to her face and prayed to God. When the car stopped, Cardenas opened the door and ran away and up a hill. It was very dark outside, and she could not see anything. She never saw Gaxiola again.
Cardenas thought she heard two gunshots, but she was not sure. She heard Acuna call her name. Because Acuna was her friend, she thought he would protect her. She also worried that the three men would “come get” her. When she returned to the car, she did not see a body on the ground. Cardenas sat in the front passenger seat “backwards” because she was afraid that Garcia, who sat in the backseat, would “get” her. Acuna drove again. Cardenas looked at Acuna, “asking him ․ with [her] eyes like what's going on, what happened?” But he looked at her with “contempt.” She was confused because she thought Acuna was her friend.
While they were driving, someone honked a horn. Cardenas remembered opening the car door, seeing a “shoe,” and thinking “Oh my God.” She could not recall whether she got out of the car and then got back into the car after seeing the shoe, but she remembered closing the car door. Pressed at trial about where exactly the shoe was, she replied that perhaps it was stuck to a seatbelt. But she clearly recalled seeing Garcia opening the rear passenger door, grabbing the shoe, and dropping it.
Later, after they got back to the El Monte house, Garcia told her, “You know, I had to save your life today?” She asked him what he meant. Garcia said, “I did it the way I did it so I didn't have time to do you, because [Acuna] had already said that you were next.” Cardenas suddenly realized what Acuna had meant when he said to Enriquez earlier, “First one and then the other.” Garcia also warned her, basically telling her “don't say [any]thing because you already know what's going to happen.” Afterwards, Cardenas saw Garcia cleaning a gun.
3. Statements and Testimony of Damian Cortez
The prosecution also introduced evidence of incriminating statements made by Acuna that were overheard by Damian Cortez. Detective Martinez testified that she interviewed Cortez three times. In the first interview in 2003, Cortez told her that he overheard Acuna telling a man he knew as Bobby about an incident in which Acuna was involved where a girl was dragged and “they had left her body near the 210 and the 57” freeways. Turnbull Canyon also was mentioned. Detective Martinez indicated that the intersection of the 210 and 57 freeways is far from any of the locations relevant to this case. In the second interview in 2007, Cortez stated that Acuna said “they” wanted to kill the girl because she was a “snitch.” Detective Martinez understood Cortez to say that when Acuna spoke of “they,” he was referring to himself and others. In the last interview, Detective Martinez asked Cortez whether Acuna had said he was directly responsible for anyone's death. Cortez said, “No,” because he did not believe Acuna would ever have made such a statement in front of Cortez.
Cortez testified at trial. He denied making the statements to which Detective Martinez testified. He said that Acuna and Bobby did have a conversation when he was in the backseat of the car, but he did not remember what they said. Defense counsel suggested that the conversation Cortez overheard might have been about a 2001 or 2002 incident where a girl was dragged and dumped at the intersection of the 57 and 210 freeways by a man named Rafael Arellano but Cortez denied ever having heard of the incident.
4. Photographic Evidence
The prosecution also introduced five photographs showing the victim and the crime scene. The photographs were the subject of a pretrial hearing, at which defense counsel objected to two of the photographs as being unduly prejudicial. However, the trial court held that the photographs were admissible under Evidence Code section 352, as their probative value outweighed their prejudicial effect.
5. Defendants' Statements
None of the defendants testified at trial. The prosecution, however, presented Detective Martinez's interviews with Acuna and Garcia.
Detective Martinez interviewed Acuna in 2007. He denied knowing Gaxiola and denied killing her. Acuna later told the detective that he “didn't think the case was strong enough because I didn't have any DNA and I didn't have a gun.” Detective Martinez had not mentioned a gun before Acuna made the statement.
Garcia told Detective Martinez that his nickname was Youngster. He denied ever having been at the house in El Monte.
Defense counsel for Monge and Garcia were able to elicit testimony from Estrada that Clever and Youngster, the two men who were at the El Monte house, were not Monge and Garcia, respectively.
Appellants contend that the trial court made erroneous evidentiary rulings and gave erroneous jury instructions. We address each contention in turn.
1. Evidentiary Rulings
a. Out-of-Court Statements
Appellants first contend that the trial court prejudicially erred when, after a pretrial hearing, it admitted out-of-court statements by Garcia and Acuna that implicated their codefendants.2 We review the admission of these out-of-court statements de novo. (People v. Cervantes (2004) 118 Cal.App.4th 162, 174-175; but see People v. Lawley (2002) 27 Cal.4th 102, 153-154 [reviewing admission of a statement against penal interest for an abuse of discretion].) We will address each set of out-of-court statements separately.
i. Garcia's Statements
Acuna and Monge contend that the trial court erred in admitting Garcia's statement to Cardenas that “I did it the way I did it so I didn't have time to do you, because [Acuna] had already said that you were next.” They assert the trial court should have excluded this statement in its entirety or redacted the phrase “because Ruben had already said that you were next.” After a pretrial hearing, the trial court admitted Garcia's entire statement as a statement against penal interest
In People v. Greenberger (1997) 58 Cal.App.4th 298 (Greenberger ), this court held that out-of-court statements implicating a co-defendant may be admitted at a joint trial if the statements “satisfy the statutory definition of a declaration against interest and likewise satisfy the constitutional requirement of trustworthiness.” (Id. at p. 332.) Garcia's statement to Cardenas satisfied both of these requirements and thus was admissible.
Under California law, a statement is a declaration against interest if “the declarant is unavailable as a witness and the statement, when made, ․ so far subjected him to the risk of civil or criminal liability ․ that a reasonable man in his position would not have made the statement unless he believed it to be true.” (Evid.Code, § 1230.) Here, Garcia was unavailable as a witness because he declined to testify at trial. His statement that he “did it the way [he] did it” so that he would not have time to “do” Cardenas was a declaration against penal interest because it subjected him to criminal liability for Gaxiola's death. Viewed in context, it was an admission that he murdered Gaxiola by first attempting to strangle and then shooting her, which was more time-consuming that simply shooting her. In addition, Garcia's statement met the trustworthiness requirement because it was made immediately after the murder in the context of a conversation between two acquaintances. As we observed in Greenberger, “the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures.” (Greenberger, supra, 58 Cal.App.4th at p. 335.) Thus, the trial court did not err in admitting the statement because it was a declaration against penal interest.
Acuna contends, however, that only the first part of Garcia's statement was a declaration against penal interest. He asserts that the phrase implicating him in the murder of Gaxiola should have been redacted because that phrase was not a statement against Garcia's penal interest, but rather an attempt to shift the blame to Acuna. We disagree.
In People v. Samuels (2005) 36 Cal.4th 96, the California Supreme Court held that a trial court did not err in admitting an unavailable declarant's remark that “ ‘He had done it [killed the victim] and Mike [Silva] had helped him. And that [defendant] had paid him.’ ” (Id. at p. 120.) The court rejected defendant's argument that the declarant's assertion that “ ‘[defendant] had paid him’ ” for the killing was either collateral to the declarant's statement against penal interest or an attempt to shift blame: “This admission, volunteered to an acquaintance, was specifically disserving to [declarant's] interests in that it intimated he had participated in a contract killing-a particularly heinous type of murder-and in a conspiracy to commit murder. Under the totality of the circumstances presented here, we do not regard the reference to defendant incorporated within this admission as itself constituting a collateral assertion that should have been purged from [the witness's] recollection of [declarant's] precise comments to him. Instead, the reference was inextricably tied to and part of a specific statement against penal interest.” (Id. at p. 121.)
Similarly, Garcia's remark that “Ruben had already said that you were next” intimated that Garcia was part of a conspiracy to murder Gaxiola. Viewed in the context of Garcia's remark that he killed Gaxiola in the manner that he did, the subsequent remark about Acuna explained why Garcia felt he had saved Cardenas's life. The two remarks are inextricably tied together and constitute a statement against Garcia's penal interest. Thus, the trial court did not err in admitting Garcia's entire statement.
ii. Acuna's Statements
Garcia and Monge contend that the trial court erred in admitting Acuna's out-of-court statements to Bobby (as overheard by Cortez) and to Enriquez. We examine each of these sets of statements in turn.
The trial court admitted statements by Acuna to Bobby that “they” had dragged a girl because she was a snitch and that “they” had killed her. Garcia and Monge contend that these statements did not meet the requirements for a declaration against penal interest and for trustworthiness. We disagree.
The statements met the requirements for a declaration against penal interest because: (1) Acuna declined to testify and was thus unavailable as a witness, and (2) the word “they” implicated Acuna as it was Cortez's understanding-as related to Detective Martinez-that when Acuna used the word “they,” he meant himself and others. Appellants contend that this understanding is inconsistent with Cortez's later testimony that Acuna never specifically said that he was responsible for anyone's death. Such inconsistency, if any, was for the jury to resolve. Moreover, we find no factual inconsistency: Acuna's failure to say he was directly responsible for Gaxiola's death did not preclude him from making statements implicating himself in the conspiracy to murder her.
In addition, the statements were trustworthy as they were made to acquaintances in a noncoercive environment. Moreover, Acuna did not attempt to shift the blame to others but included himself as an equally culpable member of the conspiracy to murder Gaxiola. Thus, the trial court did not err in admitting these statements.
Similarly, the trial court did not err in admitting Acuna's out-of-court statements to Enriquez made several days after the murder. Enriquez testified that Acuna told him that there were “other individuals” involved in the robbery at the hotel, that Gaxiola had left when “they” came out after the robbery, that Gaxiola's foot had gotten caught in the seatbelt, that “they” drove down the canyon, and that the only reason “they” knew Gaxiola was stuck to the car was because a truck hit them with its high beams. These statements were declarations against penal interest because (1) Acuna was unavailable and (2) in the context of Acuna's conversation with Enriquez, Acuna implicated himself when he made these statements. Enriquez testified that Acuna initially “kept telling [Enriquez] about the robbery, he was telling [Enriquez] about the robbery at the hotel, and how she [Gaxiola] left him behind.” When Acuna made the statements at issue, it was clear that he was referring to himself and the other conspirators. Appellants' contention that Acuna did not implicate himself because he used the word “they” is based upon a misreading of Enriquez's testimony. Unlike the prior statements by Cortez in which he overheard Acuna using the word “they” as opposed to “he” or “we,” Enriquez did not testify that he heard Acuna use the word “they.” Rather, it was Enriquez who used the word “they” when testifying about Acuna's statements. Finally, the statements were trustworthy because they were made to a friend in a noncoercive environment and Acuna did not attempt to shift blame to the other defendants. We find no error in admitting these statements.
b. Death Photographs of Gaxiola
Appellants next contend that they were unduly prejudiced when the trial court, over objection, admitted two death photographs of Gaxiola. At a pretrial hearing, the trial court considered defense counsel's objections, but ruled that the photographs were admissible under Evidence Code section 352. The first photograph shows Gaxiola laying face down on the street, with “considerable abrasions” to her back and “tremendous amount of tissue damage” consistent with the theory that the body was dragged over a paved surface for a considerable time. The body also was next to a shredded social security card that belonged to Zeron's wife. The second photograph is a picture of Gaxiola's face showing a massive gaping wound between her left eye and nose. It was taken before the body was cleaned for the autopsy. During the pretrial hearing, the prosecution asserted that there was no other photograph showing the gunshot wound to Gaxiola's head that did not show “the entire face.”
Appellants assert that these photographs were cumulative of other photographs and other undisputed testimony, and were not necessary to corroborate or refute any testimony. Appellants also contend that the second photograph lacked probative value in the absence of expert testimony, as the trial court initially thought the second photograph showed an exit wound when it actually showed an entrance wound. We disagree and conclude that the trial court did not abuse its discretion in admitting the two photographs.
In People v. Pollack (2004) 32 Cal.4th 1153 (Pollack ), the California Supreme Court held that “[i]n a prosecution for murder, photographs of the murder victim and the crime scene are always relevant to prove how the charged crime occurred, and the prosecution is ‘not obliged to prove these details solely from the testimony of live witnesses.’ [Citation.]” (Id. at p. 1170.) The court further stated that “ ‘[w]e have often rejected the argument that photographs of a murder victim should be excluded as cumulative if the facts for which the photographs are offered have been established by testimony. [Citations.]’ [Citations.]” (Ibid.) Instead, the appellate court reviews the photographs at issue to determine whether the trial court erred in ruling that the photographs were admissible under Evidence Code section 352 because “their probative value was substantially outweighed by the risk of undue prejudice to defendant.” (Pollack, at p. 1171.)
The two photographs at issue had substantial probative value because they showed how the victim was killed and how her body was transported from the scene of the murder to where it was found by law enforcement. The first photograph showed that Gaxiola's body was dragged a considerable distance before being found by law enforcement. The photograph also linked Gaxiola to the robbery of Zeron because a shredded social security card belonging to Zeron's wife was located near the body. The second photograph was relevant to intent, as it showed that Gaxiola was killed by a close-range gunshot wound. Although the photographs are disturbing, we conclude that they are not unduly gruesome or inflammatory. Thus, the trial court did not abuse its discretion in determining that the probative value of the two photographs outweighed the risk of undue prejudice to appellants.
c. Acuna's Statement that He Did Not Recognize Monge
Finally, Monge separately contends that the trial court prejudicially erred when it sua sponte precluded the prosecution from asking a question that would have led to the admission of potentially exculpatory evidence. We disagree that the trial court abused its discretion in this instance.
The disputed incident occurred during the prosecution's case-in-chief. The prosecution was asking Detective Martinez about certain statements that Acuna had made to her during her interview with him. Detective Martinez testified that Acuna denied knowing Gaxiola. The prosecutor then asked: “Did you show him a picture of someone in court today?” She answered, “ I believe so.” The prosecutor asked: “And did he acknowledge whether or not he knew that person? The picture of the person that you have been referring to as ‘Clever,’ do you see Clever in court today.” At this point, the trial court sua sponte raised an objection and called counsel to the bench. After a sidebar discussion, the trial court instructed the prosecutor not to continue the line of questioning because “it raises some serious confrontational issues.” Defense counsel objected and moved for a mistrial because “the jury is going to have a totally incorrect perception of what Mr. Acuna's ․ knowledge of defendant [Monge] is.” Specifically, defense counsel believed that the jury would infer that Acuna had told Detective Martinez he recognized Monge as Clever when Acuna actually had said he did not know Monge. The trial court denied the motion and advised defense counsel that it would instruct the jury that the “witness has not answered the question [and] the question asked by [the prosecutor] cannot be considered as evidence.” After the close of evidence, the trial court so instructed the jury.
As an initial matter, we note that Monge is appealing a ruling that was adverse to the prosecution. It was the prosecution that sought to introduce evidence of Acuna's statements.3 Accordingly, Monge must explain why he is entitled to challenge the ruling on appeal. Generally, he contends that the ruling denied him his right to a fair trial because (1) the excluded evidence was exculpatory, (2) the jury may have drawn a false factual inference, and (3) the trial court had no legitimate basis to make and sustain its sua sponte objection. We address each contention in turn.
First, the fact that the answer to the prosecution's question might have been viewed as exculpatory, if considered in isolation from all of the other evidence, is insufficient to form the basis for a challenge to the ruling in this case. Appellant cites no statute, case, or legal authority that provides that a defendant is entitled to present his evidence via the prosecution's case.
Second, it is sheer speculation that the jury would have drawn the inference that Monge suggests. The prosecutor had just elicited testimony that Acuna had denied knowing Gaxiola-thus distancing himself from the murder-despite evidence to the contrary. It is as likely as not that the jury would have expected a similar answer to a question regarding Acuna's acquaintanceship with Monge. In any event, any erroneous factual inference was corrected by the subsequent jury instruction, which we presume the jury understood and followed. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
Finally, the trial court did have a legitimate basis for making and sustaining its sua sponte objection. The trial court has a duty to ensure a fair trial. It also has broad discretion to control trial by, among other things, excluding marginally relevant evidence. (See, e.g., People v. White (1954) 43 Cal.2d 740, 747[“[W]here questions are asked which are improper, the court acts within the scope of its duty in refusing to allow them to be answered, even though no objection be made.”]; People v. Harris (2005) 37 Cal.4th 310, 341[“[T]he court had discretion to exclude ․ evidence under Evidence Code section 352 even if we assume it had some marginal relevance.”].) Here, the trial court was trying to ensure that the trial was fair by preventing any possible constitutional errors. Although the answer to the first question in the line of questioning might have appeared exculpatory, subsequent answers to followup questions might have been inculpatory and led to Bruton issues. The trial court had previously considered and ruled on certain out-of-court statements by Acuna implicating his codefendants. However, it had not been advised that the prosecution would seek to admit Acuna's statements to Detective Martinez that might implicate his codefendants. The trial court precluded the prosecution from continuing the line of questioning because it was concerned about possible Bruton issues as indicated by its statement that the line of questioning raised “serious confrontational issues.” The trial court stated that it would not allow “inadmissible evidence in ․ unless we are going to handle these issues separately at a [Evidence Code section] 402 [hearing].” The trial court also exercised its broad discretion to control trial by excluding marginally relevant evidence. Acuna's statement denying he knew Monge was not ultimately probative of whether Monge participated in a conspiracy to murder Gaxiola that night. The prosecution's case against Monge rested primarily on an eyewitness account of his participation in Gaxiola's murder, not on a preexisting relationship between Monge and other members of the conspiracy. Because the marginally probative value of the testimony did not outweigh the possible prejudice from a Bruton error, the trial court did not abuse its discretion in preventing the prosecution from continuing this line of questioning.
2. Jury Instructions
Appellants also contend that the trial court erred in giving a conspiracy instruction and a flight instruction. They further contend that the trial court erred by not including Cardenas as an accomplice when the court gave the accomplice instruction. We examine de novo the validity and impact of a jury instruction. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 831.) We address the instructions in turn.
a. Conspiracy Instruction
Appellants first contend that the trial court erred in instructing the jury that it could find appellants had committed the murder based upon evidence of an uncharged conspiracy. According to appellants, there is no statutory basis for a jury to find a conspirator guilty of a substantive crime other than conspiracy. Appellants concede, however, that for over a century the California Supreme Court has recognized that conspiracy is a theory of liability. (See People v. Kauffman (1907) 152 Cal. 331.) Appellants also acknowledge that as recently as 2008, the California Supreme Court sustained a jury verdict of first degree murder based upon a conspiracy theory of liability. (See In re Hardy (2007) 41 Cal.4th 977, 1029 [“We thus conclude substantial evidence supports the theory that petitioner was guilty of first degree murder on a conspiracy theory.”].) This court is bound to follow the controlling precedents in this case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject appellants' contention.
b. Flight Instruction
Next, appellants contend that the trial court erred in giving a flight instruction because there was no substantial evidence to support that instruction. Garcia and Monge further contend that there was even less evidence against them because they were not the drivers of the vehicle.
Here, the prosecution requested a flight instruction because after Nunez honked his horn and yelled at Cardenas to look to the back of the car, appellants “just dislodged [Gaxiola's] foot and they just kept driving away.” The trial court subsequently instructed the jury that “[i]f a defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that a defendant fled, it's up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
The California Supreme Court has held that, “ ‘[i]n general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” ’ ” (People v. Smithey (1999) 20 Cal.4th 936, 982.) Flight requires “ ‘ “a purpose to avoid being observed or arrested.” ’ ” (Ibid.)
Here, the prosecution presented evidence that appellants became aware Nunez had noticed Gaxiola's body was stuck to their car, that they had stopped the car to dislodge the body, and that they then drove away. This is substantial evidence from which a reasonable jury could conclude that appellants drove away because they were afraid of being observed by eyewitnesses or arrested for Gaxiola's murder. Moreover, any error is harmless because the “instruction did not assume that flight was established” by the evidence presented, “but instead permitted the jury to make that factual determination and to decide what weight to accord it.” (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183.)
c. Accomplice Instruction
Finally, appellants contend that the trial court should have instructed the jury to determine whether Cardenas was an accomplice because there was substantial evidence to support a finding that she was an accomplice in the murder of Gaxiola.
A court must give an accomplice instruction when there is substantial evidence that a witness was an accomplice. (People v. Boyer (2006) 38 Cal.4th 412, 466.) “ ‘An accomplice is ․ one who is liable to prosecution for the identical offense charged against the defendant’ [citation] and does not include an accessory [citations]. ‘An accomplice must have “ ‘guilty knowledge and intent with regard to the commission of the crime.’ ” [Citation.]' [Citation.]” (Id. at p. 467.)
Here, the trial court instructed the jury that before it could consider the testimony of Enriquez, it must determine whether he was an accomplice. Appellants contend that Cardenas should have been included with Enriquez as an accomplice because, according to appellants, the evidence at trial showed that it was more likely than not that Cardenas was an accomplice. We disagree that there was substantial evidence from which a reasonable jury could conclude that Cardenas was an accomplice.
The record on appeal does not demonstrate that Cardenas knew or should have known that appellants were going to kill Gaxiola. Nor does the record demonstrate that Cardenas intended to assist in the murder of Gaxiola. Appellants' only evidence to support a finding that Cardenas was an accomplice is: (1) that Cardenas was upset when Acuna and Gaxiola went into a bedroom together and were there for a long time; (2) her presence at the murder; (3) her continued association with appellants after the murder; and (4) her inconsistent prior testimony and actions that might show a consciousness of guilt. None of this evidence, viewed separately or jointly, constitutes sufficient evidence from which a jury could make a finding that Cardenas was an accomplice.
First, no reasonable jury could conclude that Cardenas intended to kill Gaxiola or assist in the murder of Gaxiola because Cardenas was upset that Gaxiola had spent time in a bedroom with Acuna. There was no evidence that Cardenas made a threatening comment about Gaxiola or that Cardenas had previously acted violently when confronted with suspicious behavior by a boyfriend. Second, mere presence at the scene of a crime is insufficient to support a finding that a person is an accomplice. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1177, fn. 14.) Finally, the remaining two pieces of evidence undermine Cardenas's credibility but do not provide substantial evidence about her knowledge and intent on the night of the murder.
3. Other Issues on Appeal
a. Ineffective Assistance of Counsel
Appellants also contend that if they forfeited any of the claims above, they were provided ineffective assistance. Because we have considered all of appellants' claims on their merits, we reject this contention.
b. Cumulative Error.
Finally, appellants contend that the cumulative effect of the above errors was prejudicial. Because we have found no errors, there is no cumulative error. (People v. Doolin (2009) 45 Cal.4th 390, 445.)
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
FN1. All further statutory citations are to the Penal Code, unless otherwise stated.. FN1. All further statutory citations are to the Penal Code, unless otherwise stated.
FN2. Although appellants do not cite Bruton v. United States (1968) 391 U.S. 123 (Bruton ), in their opening briefs, it is clear that they are arguing that the trial court violated Bruton. “Bruton and its progeny provide that if the prosecutor in a joint trial seeks to admit a nontestifying codefendant's extrajudicial statement, either the statement must be redacted to avoid implicating the defendant or the court must sever the trials.” (People v. Hoyos (2007) 41 Cal.4th 872, 895.). FN2. Although appellants do not cite Bruton v. United States (1968) 391 U.S. 123 (Bruton ), in their opening briefs, it is clear that they are arguing that the trial court violated Bruton. “Bruton and its progeny provide that if the prosecutor in a joint trial seeks to admit a nontestifying codefendant's extrajudicial statement, either the statement must be redacted to avoid implicating the defendant or the court must sever the trials.” (People v. Hoyos (2007) 41 Cal.4th 872, 895.)
FN3. As respondent notes, the prosecutor had just elicited testimony from Detective Martinez that Acuna had denied knowing Gaxiola, notwithstanding ample evidence to the contrary. Respondent suggests that the purpose of seeking to elicit Acuna's statement denying an acquaintanceship with Monge was likewise designed to cast doubt on Acuna's credibility.. FN3. As respondent notes, the prosecutor had just elicited testimony from Detective Martinez that Acuna had denied knowing Gaxiola, notwithstanding ample evidence to the contrary. Respondent suggests that the purpose of seeking to elicit Acuna's statement denying an acquaintanceship with Monge was likewise designed to cast doubt on Acuna's credibility.
EPSTEIN, P. J. WILLHITE, J.