P. v. Garrett

Filed 10/21/08 P. v. Garrett CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed with directions.

Robert E. Boyce and Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant Clifford Ray Garrett.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant James Lee Abbott, Jr.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted James L. Abbott, Jr. (Abbott) and Clifford R. Garrett (Garrett) of attempted murder (Pen. Code, 664 & 187),^[1]burglary ( 459), torture ( 206), mayhem ( 205) and assault with a deadly weapon ( 245, subd. (a)(1)). As to Abbott, the jury further found that he inflicted serious bodily injury ( 12022.7, subd. (a)) and used a deadly weapon ( 12022, subd. (b)(1)) during the attempted murder and aggravated assault, and he used a deadly weapon during the torture and mayhem. In bifurcated proceedings, Abbott admitted having suffered two prior convictions for which he served prison terms ( 667.5, subd. (b)), two prior serious convictions ( 667, subd. (a)) and three strikes ( 667, subds. (c) & (e)). Garrett admitted having suffered four prior convictions for which he served prison terms. Abbott was sentenced to prison for 27-years-to-life plus 15 years and Garrett to life plus four years. The defendants appeal, making a number of arguments, all of which we reject. Therefore, we affirm Abbotts judgment, while directing the trial court to make an addition to his abstract of judgment. We also affirm Garretts judgment, except that we remand the matter so he can be sentenced for his burglary conviction, which the trial court neglected to do.

Facts

The victims drug dealer (hereinafter, the dealer) testified that a couple of days before the crimes, the victim called her wanting to purchase some methamphetamine from her. She agreed to meet him at a particular spot on the street. The victim showed up at the meeting place in a truck driven by his companion, which was owned by the owner of the home^[2](hereinafter, the homeowner) where the victim and his companion were staying. The dealer handed the victim the methamphetamine she had brought with her, he handed it to his companion and the latter drove the truck off, leaving the dealer in the street without her money. The victim later called the dealer and told her he was going to give her the money that night, but he did not contact her again. On the night of March 26, the dealer and her neighbor (hereinafter, the neighbor) went to the home of the dealers friend (hereinafter, the friend), whom they had already told about the drug rip-off. The owner of the house where the victim and his companion were staying showed up and the dealer and the neighbor talked him into taking them back to his house so the dealer could confront the victim and his companion about the rip-off. The dealer wanted to take the neighbors husband with them as back up but he was unavailable.^[3] So, the dealer and the neighbor decided to ask Abbott to come along. The dealer knew that Abbott had a beef with the victim. The homeowner drove the women in his truck to Abbotts place, where the homeowner waited outside as the women talked to Abbott. The dealer told Abbott that at least the victim was involved in the drug rip-off and the homeowner wanted the victim and his companion out of his home. Abbott was not interested until the dealer mentioned the victims name.^[4] The women told Abbott they wanted him to go with them to get the money from the victim. The three followed the homeowners truck in Abbotts truck to the dealers apartment complex where they met up with Abbotts roommate, Garrett.^[5] Abbott talked to Garrett and then Garrett got into the homeowners truck, bound for the homeowners house. Abbotts truck, which contained Abbott, the dealer and the neighbor, accompanied them. The homeowner parked in his driveway and Abbott parked his noisy truck a few houses up the street. The homeowner, Abbott, Garrett, the dealer and the neighbor entered the house through the back door. The neighbor went to and stood by the front door. The homeowner said they[,] presumably meaning the victim and his companion, were both in the bedrooms and he went into the dining area of the kitchen. Abbott and Garrett approached the first bedroom door in the hallway, one of them kicked it open and both entered. After some commotion took place in the room, Garrett said, Thats not him. They then entered the next bedroom, where the victim was. The dealer saw Abbott hit the victim on the back of the head with a bar. She went to the front door, joining the neighbor, and both went out the door and down the street. When they got to the corner, Abbott came by in his truck and picked them up. Once back at the dealers apartment complex, Abbott threw the bar into the trash can. The dealer was charged and faced a sentence of 25 years to life for her involvement in these crimes. She pled guilty to assault with a deadly weapon and burglary. As part of her plea bargain, she received a sentence of six years and agreed to testify against Abbott and Garrett.

The friend testified that the dealer had complained to the homeowner of being ripped off by the victim and his companion in a drug deal and that the neighbor had joined in, adding that the two men had also ripped her off. When the homeowner came to the friends house, both women screamed at him and he appeared to be scared. They threatened to fuck up the homeowner if he did not help them rectify the situation or take them to the victim and his companion. The neighbor volunteered her husband to help, then said they would go get Abbott. The dealer said the neighbor and Abbott would help her.

A letter was introduced into evidence that Garrett had written to the neighbor while he was in jail following his arrest for these crimes. In it, he professed his love for her. He encouraged her to fight and for them to stay together and beat the case. He expressed concern about the dealer, whom he said had a loose mouth. He encouraged the neighbor to talk to the dealer so the latter sees the whole picture. Although Garrett claimed they were all innocent, he said that none of this would have happened if they hadnt allowed it to and he and the neighbor had made bad decisions. Another letter he wrote to her three weeks later repeated that they were innocent.

Other facts will be disclosed as they are pertinent to the issues presented.

Issues and Discussion

1. Discovery

Abbott asked this court to review a transcript of a sealed in-camera pretrial hearing at which the trial court concluded that certain discovery should not be provided to him. After reviewing the transcript, we conclude that the trial court did not abuse its discretion in finding that good cause existed for it to withhold discovery from Abbott. We also conclude that the importance of withholding the information outweighed whatever constitutional rights to the effective assistance of counsel and a fair trial Abbott had that were impacted by the withholding of the information. ( 1054.7.)

2. Comments About Reasonable Doubt During Voir Dire

During voir dire, the prosecutor asked the potential jurors, Who thinks I have to have a perfect case, perfect evidence to get beyond a reasonable doubt? . . .  []  . . .  []  . . . Is anybody here going to feel, [Y]ou know what, if its not perfect [and], I dont have every answer to every question I have in my mind, then I cant do it, I cant find guilty[]? A potential juror, who ultimately did not serve on the jury, replied, I do. []  . . .  [] Not perfect. It would have to be 98 percent perfect. []  . . .  [] The charges these guys are facing I think are pretty serious and youre talking serious penalties. The trial court interrupted, pointing out that it had instructed the potential jurors that they could not consider penalty. It asked this potential juror if he could follow that instruction. The potential juror replied that maybe he should not serve, but he added that he had been given that instruction when he had served as a juror a previous time and was able to follow it. The prosecutor asked the potential jurors, [This potential juror] said 98 percent. Who here thinks that beyond a reasonable doubt is a percentage? Another potential juror, who did ultimately serve, responded that it was not a percentage, but [i]ts how you prove your burden of proof. The prosecutor responded, Right. Its kind of this amorphous standard. I am not going to be able to put a line I can reach to the ceiling, or . . . to the top of my head . . . . Its never going to be measured that way . . . . Its something that you get to . . . after I prove the case to that point, but you understand that youre not going to have a magic number. . . .  [] And if I tell you its not proper to put to it a number in your own mind and then somehow try and look at everybody youve seen in the case and match it up and get a certain number, you understand you cant do that either? The prosecutor asked the potential jurors if any of them were troubled by that and none said that they were.

At the conclusion of the prosecutors portion of voir dire, the trial court said,  . . . [T]heres a little bit of concern over the attachment of a percentage number of the concept of reasonable doubt, and I heard a hypothetical asked of [potential] jurors in the past, and it . . . may shed some light on this concept. The trial court then directed the following remarks to one of the potential jurors, who ultimately served on the jury,

THE COURT: Lets assume I told you I was the richest man in the world. I had more money than Bill Gates, the Sultan of Brunei, and the entire Walton family combined. Possible?

[THE JUROR]: Is it possible that you are?

THE COURT: Right, and I justIm so devoted to public service that, you know, I dont feel the need to sit at home documenting my money, I like to come to work here and serve in any capacity possible?

[THE JUROR]: I think thats possible for somebody.

THE COURT: But is it reasonable?

[THE JUROR]: No, probably not.

THE COURT: See. Does that kind of help you out a little bit in this concept of reasonable versus possible. That is the instruction I read to you yesterday, when youre dealing with human affairs, all things are possible, but the doubt that you have in order to return a verdict of not guilty, that has to be reasonable. You may have doubts. Anything is possible dealing with human affairs, but unless that doubt is reasonable, your task is clear. Everybody understand that? It gets back to this concept of common sense. Everyone agree? Okay.

The defendants contend that the trial court trivialized the reasonable doubt standard and lowered the prosecutions burden of proof by equating proof beyond a reasonable doubt to the concept of common sense, and reasonableness with probability and everyday speculation. We disagree. The trial courts statement was a correct paraphrasing of a portion of the reasonable doubt instruction, which it had already read to the potential jurors, i.e., Reasonable doubt . . .  []  . . . is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. It was also a restatement of the following explanation of the concept of reasonable doubt the trial court had given the potential jurors soon after it quoted the reasonable doubt instruction, . . . [A]s the instruction tells us, theres no such thing when youre talking about human affairs or human conduct that rises to an absolute certainty. The law recognizes that there isnt a standard of perfection when were talking about human conduct or human behavior. But the law does require that the prosecution . . . reach the highest standard of proof. And as I told you, thats proof beyond a reasonable doubt, not a mere possible doubt. You may have some doubt, but unless that doubt is reasonable, your verdict is guilty. [] If the doubt is unreasonable, then your verdict is not guilty.^[6] Although Garrett here does not take issue with this explanation, Abbott does. However, he does not say what is wrong with this explanation.^[7]

By its statement, It gets back to this concept of common sense[,] the trial court was not, as Garrett here asserts, equating proof beyond a reasonable doubt with the concept of common sense. The court was merely explaining that common sense dictates that possible doubts cannot be the basis for a not guilty verdict, but a reasonable doubt can. As to Garretts assertion that by this statement, the trial court equated reasonableness with probability and everyday speculation, he severely misinterprets the trial courts words.

Finally, by saying, but the doubt you have in order to return a verdict of not guilty, that has to be reasonable did not, as Garrett here contends, place[] the burden on the defendant to raise a reasonable doubt before the juror could acquit[.] The trial court was merely distinguishing possible doubts from reasonable doubts.

People v. Johnson (2004) 119 Cal.App.4th 976 (Johnson II) and People v. Johnson (2004) 115 Cal.App.4th 1169 (Johnson I), which Garrett cites in support of his position, are distinguishable. In the former case, the trial court repeatedly equated proof beyond a reasonable doubt to everyday decision making in a jurors life and invited the jurors to, in deciding between guilty and not guilty, make the kind of decisions you make everyday in your life. (Johnson II at pp. 980-983.) The appellate court pointed out that this had been condemned by the California Supreme Court. (Id. at p. 985.) Similarly, in Johnson I, the appellate court condemned equating reasonable doubt with the doubt one deals with in deciding to take a vacation or get on an airplane. (Johnson I at p. 1172.)^[8] This is not what occurred here.

People v. Garcia (1975) 54 Cal.App.3d 61 and People v. Paulsell (1896) 115 Cal. 6, which Garrett also cites, are also distinguishable. In Garcia, the trial court said that reasonable doubt was the doubt that presents itself in the minds of reasonable people who are weighing the evidence in the scales, one side against the other, in a logical manner in an effort to determine wherein lies the truth. (People v. Garcia, supra, 54 Cal.App.3d at p. 68.) The appellate court found the reference to weighing strikingly comparable to the preponderance standard and the tipping of the scales wholly foreign to the concept of proof beyond a reasonable doubt. (Id. at p. 69.) In Paulsell, the California Supreme Court warned against telling the jury that reasonable doubt must be based upon common sense, because that term is about as uncertain as any phrase in the language. (People v. Paulsell, supra, 115 Cal. at p. 12.)

3. Admission of Evidence

a. Plea Form of the Neighbor

The People sought admission of the neighbors change of plea form. In it, the neighbor stated that she was pleading guilty to first degree burglary, for entering the homeowners house with the intent to commit theft, and mayhem. All other counts and allegations, which were not listed on the form, were to be dismissed and the neighbor was to serve a term of five years four months in state prison.

The defendants objected to admission of the plea form on the basis that it was irrelevant. Additionally, they stated that it was their understanding that it was being introduced to corroborate the testimony of the dealer and the friend. However, they asserted, the neighbor was an accomplice, as was the dealer, and the neighbor could not corroborate the dealer. They stated they did not see how the plea form corroborated the testimony of the friend.

It appears^[9]that the People responded that the fact that the neighbor pled guilty contradicted Garretts self-serving statements in his letters to the neighbor that they were all innocent. The trial court concluded the plea form was relevant and admitted it.

The defendants^[10]here contend that the plea form should not have been admitted. They state that it was irrelevant, hearsay and inadmissible under Evidence Code section 352, citing People v. Cummings (1993) 4 Cal.4th 1233, 1294-1295 (Cummings); People v. Wheeler (1992) 4 Cal.4th 284, 298-300 (Wheeler); and People v. James (1969) 274 Cal.App.2d 608, 612 (James).^[11] However, these opinions have no application to this case. Moreover, as the People correctly point out, of the three grounds the defendants now assert for inadmissibility, they objected below only on the basis that the evidence was irrelevant. Therefore, they waived the other two. (Evid. Code, 353.)

In Cummings, the wife of the codefendant had attempted to help her husband and the defendant flee the state after the two had killed a police officer. The officer had been shot when he pulled over a car driven by the defendants wife, with defendant and the codefendant inside. The wife had testified that while the officer had her car pulled over, and was leaning inside it, he was shot once in the shoulder by either the defendant or the codefendant, then shot numerous times by the codefendant. The defendant and codefendant both then reenacted the shooting for the wife of the codefendant. The wife of the codefendant had been called to testify at trial, but had taken the Fifth Amendment. The evidence at issue was that she had been tried and convicted by a jury of being an accessory after the murder of the officer. The Peoples theory of admissibility was that the evidence tended to show that the testimony of the defendants wife had a basis in fact. (Cummings, supra, 4 Cal.4th at p. 1294.) The California Supreme Court observed that if it did, it was hearsay and lacked relevance for purposes of corroboration. The court added, The conviction reflected only the view of a judge or jury that evidence presented in a different case established that [the codefendants wife] had assisted the defendants or either of them after the murder. It did not come within any exception to the hearsay rule applicable to judgments. (Id. at pp. 1294-1295.) [T]he official records exception to the hearsay rule . . . permits use of the record only to establish that a judgment was entered, not to establish that guilt has been determined. (Id. at p. 1295, fn. 36.) Furthermore, . . . the trial court did not rule on the objection that the evidence was more prejudicial than probative. It clearly was. Although [her] assistance to either her husband or [the defendant] could have been the basis for the conviction, it is inconceivable that the jury would not understand the evidence to reflect guilt of aiding her husband who, by necessary implication, had committed a murder. (Id. at p. 1295.) Here, in contrast to Cummings, the neighbors plea form was not introduced to prove that she committed burglary and mayhem. It was introduced to show that she pled guilty to those offenses in order to refute the assertion in Garretts letters that he, the neighbor, and everyone else involved in the crimes was innocent. Admission of the plea form was the equivalent of having someone who had witnessed the neighbor entering her plea come into court and testify that the neighbor had pled guilty to burglary and mayhem. It was a record of a fact, i.e., that she pled guilty it was not an out of court statement introduced to prove the truth of the matter asserted therein.^[12] Contrary to the defendants assertion, it certainly was not a statement by the neighbor that she, in fact, committed burglary and mayhem.^[13] Moreover, the fact that the neighbor pled guilty, unlike the evidence in Cummings, did not necessarily directly implicate either defendant. Finally, although the Cummings court did not state, it is difficult to see how the conviction of the codefendants wife corroborated the testimony of the defendants wife. Here, in contrast, the fact that the neighbor pled guilty to burglary and mayhem, as evidenced by the plea form, clearly contradicted the assertion Garrett made in his letter to the neighbor that he, she and everyone else involved in the crimes was innocent.^[14]

In Wheeler, the California Supreme Court held, inter alia, that a misdemeanor conviction itself is inadmissible hearsay when offered as evidence that a testifyingwitness committed misconduct bearing on credibility and therefore should not bebelieved. (Wheeler, supra, 4 Cal.4th at pp. 297, 300.) The inapplicability of this holding to this case is so apparent that further comment is unnecessary.

Finally, in James, the appellate court concluded that certified copies of a womans conviction in 1963 and guilty plea in 1966 for disorderly conduct for engaging in prostitution and soliciting an act of prostitution, respectively, were inadmissible to prove that she was a prostitute for purposes of establishing that as an element of the offense of pimping charged against the defendant. The appellate court pointed out that the fact that the woman engaged in prostitution/solicitation of prostitution in 1963 and 1966 did not prove she did so when the charged offense occurred in 1967. (James, supra, 274 Cal.App.2d at p. 611.) Moreover, the copies had been introduced to prove the truth of the matter asserted therein, i.e., that the woman was a prostitute, and no exception to the hearsay rules applied to them. (Id at p. 612.) Here, in contrast, the plea form was not introduced to prove that the neighbor, in fact, committed burglary and mayhem.

The defendants also assert that admission of the plea form violated their right to confrontation and cross-examination under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). However, their failure to assert this basis below waived it. (Evid. Code, 353.) As a fall-back position, Abbott argues that the failure of his trial counsel to object on this basis constitutes incompetency, requiring reversal. We disagree.

As stated before, the plea form was evidence that the neighbor had pled guilty to burglary and mayhem. Also, as stated before, it was no different than calling to the stand a witness who had seen the neighbor enter her plea testify in court that he or she had seen the neighbor enter such a plea. Neither defendant asserts that the neighbor did not, in fact, enter such a plea. Therefore, there was no basis for cross-examination. Moreover, as we have already noted, the plea form was not hearsay. Crawford applies only to hearsay statements. (Crawford, supra , 541 U.S. 36 at p. 59, fn. 9 [[t]he [Confrontation] Clause . . . does not does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted]; People v. Cage (2007) 40 Cal.4th 965, 969; People v. Ledesma (2006) 39 Cal.4th 641, 707 fn. 18; People v. Cooper (2007) 148 Cal.App.4th 731, 742-745 [ . . . [N]on hearsay statements are not testimonial and therefore not subject to the confrontation clause]; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224.)

b. Videotape of Crime Scene

The jury was shown a videotape of the homeowners house during the testimony of an investigator from the prosecutors office. The tape had been made almost a year after the crimes. The jury was not permitted to hear the audio portion of the tape. The tape began with shots of the front exterior of the home and the street on which it is situated. After a few minutes, the homeowner is seen along with the investigator walking up the driveway, down a side walkway, through a gate and onto the back porch, through the back door, into the kitchen and standing in the doorway between the kitchen and the living room. At times, the homeowner is seen talking to someone and gesturing with his hands, but no discernable words can be gathered from either.^[15] In fact, the investigator testified that he was giving the homeowner instructions of where to take him. The homeowner is not seen while the camera pans the living room and follows the investigator down the hall on the other side of the kitchen and into two bedrooms. The homeowner is seen again, talking and gesturing with his hands, from his earlier position in the doorway between the kitchen and the living room. As before, no discernable words can be gathered from this activity.^[16] The camera again pans the living room, showing the front door and views out the front door to the front porch and the lawn. The homeowner is again seen talking from his same position, then is seen for one or two seconds going into the living room. He is seen in front of the refrigerator in the kitchen, talking, but, as before, nothing can be discerned of what he is saying.^[17]The camera again pans the living room and the view out the front door to the driveway. The front screen door opens and the camera operator goes outside to capture views of the street in front of the house and down the street from the front porch. Views of the front door and front window are then seen.^[18]

Neither defendant objected to the admission of this videotape at trial. However, here, they claim that the tape was testimonial and its admission violated their right to confrontation and cross-examination. They waived this objection by failing to make it below. (Evid. Code, 353.) Moreover, it lacks merit. The tape does not constitute anything of evidentiary value with regard to the homeowner. The portion of it in which he appears conveys no meaning whatsoever, therefore, it does not constitute testimony. (See People v. Jurado (2006) 38 Cal.4th 72, 129.)^[19]

c. Garretts Admissions to His Mother

Garretts mother testified that two weeks before trial, Garrett told her that he was at the scene of the crimes, that he helped open the door, but he did not touch the victim and he wanted to leave. The trial court struck the testimony because Garretts attorney would have been able to cross-examine Garretts mother about other things that he said during his conversation with his mother, some of which implicated Abbott, but Abbotts attorney would not be able to cross-examine Garrett about those statements because Garrett would not be testifying. The trial court informed the jurors that it had stricken Garretts mothers testimony and they were to disregard it.

Abbott^[20]contends that admission of the evidence requires reversal. We disagree. The jury is presumed to have followed the clear instructions the trial court gave it. (People v. Jablonski (2006) 37 Cal.4th 774, 834.) Moreover, as the People correctly note, the statement implicated only Garrett.^[21]

d. Phone Conversation Between the Friend and Garrett

During his direct testimony, the friend testified that after Garrett had been arrested, the latter called him and asked him if the homeowner had said anything or talked to the police about the crimes. The friend told Garrett that the homeowner had not. Garrett then said that if people talked, something would happen. The prosecutor then asked the friend, What do you remember him specifically saying . . . ? His question was interrupted by a hearsay objection from Abbotts attorney, which the trial court overruled. The friend then testified that Garrett said that people who talked would be taken care of and theyd regret it. Abbott now asserts that his hearsay objection should have been sustained, however, the witness had already testified to the substance of what he repeated after the objection was overruled. Moreover, as Abbott, himself, points out, the jury was free to use other attempts at witness intimidation by Garrett against him.^[22] However, Abbotts attempts at witness intimidation were even more pronounced than Garretts, therefore, we cannot conclude that Abbott was prejudiced by the admission of this evidence.

4. Jury Instructions

a. Accomplice Instructions

1. As to the Neighbor

The defendants assert that the jury should have been instructed inter alia,^[23]that the neighbor was an accomplice, as a matter of law, and it could not find them guilty based upon [her testimony] . . . unless that testimony [was] corroborated by other evidence which tends to connect the . . . defendant[s] with the commission of the offense[s]. [] Testimony [of an accomplice] . . . includes any out-of-court statement purportedly made by [an accomplice] received for the purpose of proving that what the [accomplice] . . . stated out-of-court was true. (CALJIC Nos. 3.11 & 3.16.) They also argue that the jury should have been instructed that it could determine that the neighbor was an accomplice, and apply the accomplice instructions to her testimony. However, there was no testimony by her.

As stated before, the neighbors plea form was not an out-of-court statement received for the purpose of proving the truth of the matter asserted therein. It was not, as the defendants assert, a confession or admission to burglary and mayhem. Rather, it was a record of the fact that the neighbor pled guilty to those offenses. It did not constitute testimony by her. Therefore, there was no need to give the accomplice instruction concerning the neighbors plea form.

2. As to the Homeowner

The defendants assert that the jury should have been instructed to determine if the homeowner was an accomplice, and, if it concluded he was, to apply the accomplice instructions to him. However, as we have already concluded, the homeowners brief appearances on the silent video tour of his home did not constitute testimony. Therefore, there was no need for the trial court to apply the accomplice instructions to him.

3. Failure to Define Conspiracy

The jury was instructed that an accomplice was a person who was subject to prosecution for the same offenses charged against the defendant by reason of that person aiding and abetting or being a member of a criminal conspiracy. The jury was also told that the dealer was an accomplice as a matter of law. The term criminal conspiracy was never defined for the jury and the defendants contend that this requires reversal of their convictions because the absence of the definition may have prohibited the jury from considering either the neighbor or the homeowner as an accomplice.^[24] Our conclusion that the testimony of neither of these people was offered at trial obviates the need for us to discuss this issue further.

b. Instructions on Guilty Pleas

The defendants contend that the trial court had a sua sponte duty to instruct the jury that guilty pleas based on plea bargains could not be used to establish the existence of any charged crimes. However, the limited use to which the neighbors plea form was put obviated the need for such an instruction as to her.^[25] The dealer testified that she was originally charged with the same offenses of which the defendants were accused at trial, she faced 25 years to life in prison, and she received, as part of her bargain, a six-year term in prison for pleading guilty to assault with a deadly weapon and burglary. However, she also testified that she went to the homeowners home with the intent to take money from the victim by force or fear and, therefore, in fact, committed a burglary and she set the wheels in motion for the assault of the victim, thereby, committing assault with a deadly weapon (as an aider and abettor). Therefore, there was no need to instruct the jury not to use her plea bargain to establish the existence of any crimes. The jury had her admissions/confession on the stand for that.

The defendants also contend that the trial court had a sua sponte duty to instruct the jury that it could not use a guilty plea confession by a former codefendant . . . against the defendant, especially if the codefendant never takes the stand and testifies and that a person may plead guilty to a crime he[/she] did not commit in order to avoid greater punishment. However, no confession by the neighbor was ever introduced into evidence. Her plea form and its use has already been discussed in this opinion. That use did not merit such an instruction. Therefore, defendants fall back position that their trial counsel was ineffective for failing to request such instructions also fails.

c. Burglary Instructions

The defendants claim the trial court had a sua sponte duty to instruct the jury that the consent of the homeowner for them to enter his home was a defense to the burglary charges brought against them. Indeed, a person who enters a structure with the intent to commit a felony is guilty of burglary except when he or she . . . is invited in by the occupant who knows of and endorses the felonious intent. (People v. Hinton (2006) 37 Cal.4th 839, 886 (Hinton).)^[26]

There was no substantial evidence presented at trial that the homeowner was aware of the defendants felonious purpose and endorsed it.^[27] Additionally, the homeowners consent that the defendants enter his home would have had to have been freely given, and not the product of pressure or intimidation by the dealer, the neighbor, and/or the defendants or the result of intoxication. There was no substantial evidence presented at trial that it was not.^[28] Therefore, there was no substantial evidence

triggering the trial courts sua sponte duty to give an instruction on consent.^[29]

5. Insufficiency of the Evidence

a. Of Garrett Aiding and Abetting Torture, Mayhem, Assault with a Deadly

Weapon, and Attempted Murder

Garrett contends that there was no evidence that he knew of Abbotts criminal purpose or intended to commit, encourage or facilitate Abbotts commission of aggravated assault, aggravated mayhem or torture. As stated before, there was evidence that Abbott spoke to Garrett, his roommate, at the dealers apartment complex before Garrett joined the group going to the homeowners house. Without further discussion either en route or once in the house, Garrett and Abbott both stormed the door to the first bedroom and rushed inside.^[30] At that point, Abbott had a large cylindrical item in his right hand.^[31] Garrett was the one who informed Abbott that the person inside was not the intended victim and they left and entered the second bedroom when the victim unlocked the door to it. The victim, himself, testified that Garrett was in the bedroom when Abbott was assaulting him. There was also evidence that it was Garrett who told Abbott, Thats enough and told him that they should leave. They fled the scene together. Garretts staying in daily touch with Abbott after their arrests, and his attempts to have the victim and others intimidated or worse and to blame everything on the dealer because she had spoken to the police, despite the fact that he acknowledged that we are all responsible for anything that happened demonstrated that, as the prosecutor told the jury, he was, In for a penny, in for a pound with Abbott. The fact that Garrett expressed no surprise when Abbott began beating the victim in the head with a metal bar demonstrated that he shared Abbotts intent to commit mayhem, torture and assault with a deadly weapon. The attempted murder was a natural and probable consequence of the other offenses.

b. Of Garrett Committing Burglary

Garrett contends that for the jury to have relied on the discussion between him and Abbott at the dealers apartment complex before they traveled to the homeowners house as evidence that he was informed of Abbotts intent in going to the house was purely speculative. We disagree. There is seldom direct evidence of a defendants intent. The jury was free to logically assume that during the discussion between Garrett and Abbott at the complex, Garrett was informed of the purpose for the trip to the homeowners house. Certainly, Garretts conduct after arriving at the house corroborated that assumption.

c. Of Abbott Committing Aggravated Mayhem and Torture

Abbott argues that the intent for aggravated mayhem and torture is inconsistent with the intent for attempted murder, therefore, insufficient evidence supports his convictions of the former. We disagree. The intent for attempted murder, i.e., the intent to kill, is not inconsistent with the intent for aggravated mayhem, which is the specific intent permanently to disable, disfigure or deprive the victim of a member of his body, and the intent for torture, which is the specific intent to cause cruel or extreme pain and suffering. Abbott could have the specific intents to permanently disable, disfigure or deprive the victim of a member of his body and to cause cruel and extreme pain or suffering for as long as the victim remained alive before his impending death, or for longer, if he failed to die, while also having the desire or knowledge to a substantial certainty that he would die, thus, the intent to kill. (See People v. Bemore (2000) 22 Cal.4th 809, 839; People v. Ferrell (1990) 218 Cal.App.3d 828, 833-834.)

Without further discussion, Abbott asserts that nothing more than speculation, surmise, conjecture and guesswork supports findings that he had all three of these intents. We disagree. Hitting a defenseless person many times with a metal bar, held in both hands,^[32]in the head, face, neck and torso with force so hard that it fractured his skull, exposing his brain, and severed a finger, supports finding all three intents. (See People v. Quintero (2006) 135 Cal.App.4th 1152, 1162 [intent to commit mayhem]; People v. Park (2003) 112 Cal.App.4th 61, 69 [intent to commit mayhem]; People v. Ferrell, supra, 218 Cal.App.3d at pp. 835-836 [intent to commit mayhem and kill].) Abbott asserts that the evidence demonstrates that he delivered blows calculated to kill the victim quickly, therefore, there was insufficient evidence of the intent necessary for torture. However, many blows were delivered to the victim, and not just to his head, where one would expect that a sufficiently forceful one might kill him quickly. He was struck on the face, neck, back, including the lower back, fingers, shoulders and armsin other words, anywhere Abbott could get in a good whack with the metal bar.

Finally, Abbott asserts that an indiscriminate attack with a pipe, especially with an intent to kill, is not sufficient to support a conviction for mayhem citing People v. Sears (1965) 62 Cal.2d 737, 745 (Sears) and People v. Anderson (1965) 63 Cal.2d 351, 358-359 (Anderson). Both of those cases are distinguishable.

In Sears, the victim died of a knife wound that punctured her jugular vein. She also had lacerations to her face, including one to her lip and one to her nose, caused by the defendant striking her with a steel pipe, and a scalp wound, of undisclosed origin. (Sears, supra, 62 Cal.2d at pp. 741, 745.) The California Supreme Court concluded that injuries to the victims nose and lip did not support a finding that the defendant intended to commit mayhem. (Id. at p. 745.) In contrast to Sears, the injuries here were far more numerous and far more severe.

In Anderson, the intoxicated defendant inflicted 60 knife wounds on his victim, some post mortem and about 20 of which were superficial, according to the prosecution, in order to silence the victim after he had attempted to molest her and she either screamed or threatened to tell on him. (Anderson, supra, 63 Cal.2d at p. 357.) The California Supreme Court concluded that there was insufficient evidence that he intended to commit mayhemrather, the record showed only an indiscriminate attack. (Id. at p. 359.) Here, in contrast, there was no evidence of an indiscriminate act as there was in Anderson. Abbotts attack on the victim was not the spontaneous act of an intoxicated person but the result of a well-thought out plan by a person who had a [pre-existing] beef with the victim and in which Abbott persuaded Garrett to join him. Just before he began his attack, Abbott, who was a Skinhead, called the victim a race trading cocksucker no doubt references to what the victim had done to Abbott years before, and what he had done to the dealer days before. Abbott had previously struck the victim over the incident at the rehabilitation facility.

6. Prosecutorial Misconduct^[33]

The defendants cite to a number of instances of what they claim are prosecutorial misconduct occurring during trial. They argue that, combined with the other trial errors, they require reversal. Of course, we have already concluded that no other prejudicial trial errors took place. However, for the sake of thoroughness, we will address each claim of prosecutorial misconduct.

a. Opening Statement

During his opening statement, the prosecutor said that when Abbott hit the victim for reporting that Abbott had violated one of the rules at the rehabilitation facility where they were both staying, it resulted in Abbott being incarcerated for at least 90 days, which caused Abbott to carry a grudge against the victim. The prosecutor made no reference whatsoever to Abbott being on parole during his opening statement. However, apparently mistaken about what he had said, he later apologized to the trial court, outside the presence of the jury, for mentioning Abbotts parole status to the jury, explaining that he had not understood the trial court to have prohibited him from doing so.^[34] Relying on the prosecutors incorrect recollection of what he said during his opening statement, and not the opening statement itself,^[35]Abbott asserts that the prosecutor committed misconduct by mentioning his parole status during opening statement. He did not make such mention.

b. Testimony of the Victim

During his direct testimony, the victim said that he had met Garrett only once before, i.e., when he was walking in the street back from the dealers house to where he was working. During cross-examination of the victim by Garretts trial attorney, the victim was asked if the incident he described during his direct examination was the only time he had seen Garrett before the crimes. He said it was. Counsel for Garrett again asked the victim if he had ever seen Garrett before. The victim said he thought he had met him before, but he was not sure.^[36] However, he added that he must have met Garrett before because Garrett called him by his name during their encounter in the street. Counsel for Garrett then said, This is what I am trying to get to, because you said this is the only time you met him. Now you think you might have met him in the past? The victim said he might have met Garrett somewhere in the past, but he could not remember where. Counsel for Garrett persisted, saying, Where did you meet him? The victim said perhaps he had met Garrett once before but his memory is not that good. Counsel for Garrett had the victim testify that when he and Garrett met on the street, Garrett called the victim by his nickname. Counsel then elicited the victims testimony that Garrett had not identified himself during their encounter in the street. He then asked the victim, How do you know the name Clifford Garrett? The victim then told the prosecutor, You told me were not supposed to bring up the past of where I have knew [sic] somebody or prison affiliation or something. The trial court instructed the victim to answer whatever questions he was asked by the lawyers unless someone objected. The victim then said, I met . . . Garrett previously in prison. He added that he was under the impression that he was not supposed to say that he met anyone in prison. In response to questions by counsel for Garrett, the victim said that he had told only the prosecutor that he met Garrett in prison. In response to further questioning by Garretts attorney, the victim testified that that was how he knew Garretts namenot because someone after the crimes told him they were committed by Garrett. At the close of evidence in the trial, the parties stipulated that the victim had not told a representative of the District Attorneys Office that he had met Garrett in prison, that Garrett had never been in the prison the victim identified as the one where they were housed together and Garrett and the victim had never been housed in the same state facility at the same time. Since it was the persistent questioning by trial counsel for Garrett, and not the prosecutor, that brought out the victims testimony about Garrett possibly being a felon, there is no basis to assert that the prosecutor committed misconduct in soliciting this evidence. To the extent Abbott is complaining that he was indirectly prejudiced by this information being heard by the jury, we note that he failed to object below to any of the questions asked by Garretts attorney and failed to move to strike the testimony. Finally, this testimony, to the extent it prejudiced Abbott, was completely undermined by the stipulation of the parties that the victim and Garrett had never been incarcerated together. Thus, the bottom line of this testimony was an impeachment of the victims memory and, veracity which could only have assisted Abbott.

c. Closing Argument

Abbott asserts that the prosecutor commented on him exercising his rights to counsel, to plead not guilty and to have a jury trial by saying the following, What happened to [the victim] that night is he ran into a force of evil that is nothing like anything you or I have ever seen. . . .  That man right there, James Abbott, the man in the tan coat hiding behind the attorney here, in the glasses, the weight.^[37] The prosecutors comment was directed at the fact that Abbotts appearance had changed dramatically from the time of the crimes to the time of trial and he was hiding behind that new appearance, hoping the victim and witnesses would not recognize him.^[38] It had nothing to do with his right to counsel, to plead not guilty and to have a jury trial. Moreover, the failure of his trial counsel to object to the comment waives his current claim. (People v. Mendoza (2007) 42 Cal.4th 686, 701; People v. Stanley (2006) 39 Cal.4th 913, 952.)

Abbott also asserts that the prosecutor committed misconduct by saying that he was a force of evil that is nothing like anything you or I have ever seen[.] Again, Abbott failed to object to the remark below and therefore waived his present claim. Moreover, [a] prosecutor may vigorously argue his case and . . . may use appropriate epithets. [Citations.] (People v. Stanley, supra, 39 Cal.4th at pp. 952-953 [Prosecutors remarks that defendant was cold-blooded, a person with no soul and someone with no remorse did not constitute misconduct given the brutal nature of the crimes].)

Abbott also takes issue with the prosecutor saying, after expressing gratitude that the dealer identified Abbott and Garrett as the victims attackers, Jack Ruby had his day in court, and Im not [equa]ting these guys with Jack Ruby . . . but everyone saw what he did. Now theyve had their day in court. Please end it. Convict them on all counts. As before, Abbott did not object to this remark below and therefore waived his misconduct claim. Moreover, it was a fair comment on the evidencethe dealer and the victim both identified Abbott as the one who beat the victim, much like millions of people watched Jack Ruby shoot Lee Harvey Oswald live on television. Abbott claims the prosecutor offered his personal opinion about the homeowners involvement in the crimes.^[39] However, what the prosecutor said was,  . . . [A]s you can tell by the testimony of [the friend] and [the dealer], [the homeowner] was really not the kind of guy to be getting involved in this. This was not only not a statement of the prosecutors personal opinion, it was a reasonable implication that could be derived, particularly from the testimony of the friend, that the dealer and the neighbor threatened and intimidated him into taking them to the victim.

Disposition

The trial court is directed to amend Abbotts abstract of judgment to show that the second five-year term in section 3 of the abstract was under section 667, subdivision (a), of the Penal Code, rather than just the Penal Code as the abstract currently states. As to Garrett, the trial court neglected to sentence him for his conviction of burglary, therefore, the matter is remanded for sentencing on that conviction. In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

KING

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] In his statement of facts, Abbott asserts that it was actually the homeowners mother who owned the home. In support, he cites a portion of an exhibit which was not admitted into evidence. As far as the jury was concerned, the home belonged to the person we have identified as the homeowner because everyone who testified at trial referred to the house as his.

^[3] She denied they intended to beat up the victim or his companion.

^[4] The victim testified that he had previously met Abbott at a drug rehabilitation facility where he and Abbott were roommates. The victim had reported malfeasance by Abbott to the director of the facility and after Abbott assaulted the victim in retaliation, Abbott was reported to his parole officer and removed from the facility. The victim continued to be in fear of Abbott retaliating against him.

^[5] The dealer denied that it was her idea to go to her apartment complex. She testified that she did not remember how Garrett knew they were there, whether a horn was honked to get him to come outside or whether anyone went to the apartment he was in to get him. The dealer had ingested methamphetamine shortly before going to Abbotts apartment.

^[6] Obviously, the trial court misspoke as to this statement. However, the fact that it us