P. v. Plair

Filed 5/1/08 P. v. Plair CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Schuit, Judge. Affirmed.

Robert S. Gerstein; Robert Dennis Rentzer, and Daniel H. Blatt for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Coutrell Plair appeals his convictions for murder and attempted murder. He argues the trial court unreasonably limited the length and format of voir dire and erroneously denied several challenges for cause to prospective jurors. He contends the trial court erred in refusing to exclude a record of text messages sent from a pager retrieved from the crime scene. He also argues the trial court abused its discretion in ruling that his testimony could be impeached with a prior juvenile adjudication and in precluding him from calling four attorneys as witnesses at trial. He contends the prosecutor committed misconduct during summation. Finally, he argues the trial court erred in instructing the jury to consider whether a certain witness was his accomplice, and if so, to view that witnesss testimony with caution.

We conclude the trial court did not abuse its discretion in limiting voir dire. Only one of the challenged jurors should have been removed for cause, and appellant was not prejudiced because that juror was peremptorily challenged. The text messages were admissible because they fell within the scope of a lawful search warrant. The court did not abuse its discretion in ruling that appellants prior conviction was admissible under Evidence Code section 352, nor did it abuse its discretion in ruling that the attorneys testimony was inadmissible under that statute. None of the challenged prosecutorial acts constituted prejudicial misconduct. Finally, the facts of the case required the trial court to instruct the jury about accomplice testimony. Thus, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

On the night of September 4, 2002, a group of people gathered in front of Michael Pitres house on Jamie Street in Los Angeles, drinking and talking. The group included Pitre, Felencia Brown, Akida Clay, Lonnie Diggs and others who lived on the same street. Sometime before 11:00 p.m. appellant and Mario Winfrey arrived. Appellant and Brown had words about whether appellants grandfather died at Browns house. Daniel Sykes arrived later, and he and appellant hugged each other.

Appellant asked Sykes to give him $20, and Sykes did. Appellant began to talk about how much money appellants family had, prompting Sykes to ask for his money back. Appellant became angry and told Sykes he would give him $100, but Sykes said he just wanted his $20. Sykes and appellant had a brief verbal confrontation, then Sykes drove away. Appellant and Winfrey left a few minutes later. Sykes returned half an hour to an hour after that.

Sometime after midnight, appellant returned in a truck with Tarhonne Boyd. Appellant exited the truck, laughing, approached Sykes and said something to him, then walked away. Boyd stood nearby holding a handgun but not pointing it at anyone. Appellant pointed to Clay and said he had something to do with it, and Boyd told appellant to just knock him out on G.B. (meaning, just knock him out just because). Appellant and Boyd laughed and drove away in the truck.

Boyd then drove appellant to appellants grandmothers house, where appellant exited the truck and returned with an AK-47 assault rifle. Appellant told Boyd to drive him back to Jamie Street, and Boyd complied. When the truck reached Glenoaks Street, appellant told Boyd to stop and wait (Glenoaks Street borders the backyards of the houses on Jamie Street). Appellant exited the truck with the AK-47, and Boyd drove away and parked on a nearby street.

Fifteen to twenty minutes after appellant exited Boyds truck, about 30 shots were fired rapidly from the direction of Pitres garage. Boyd heard the shots as he was waiting in his truck. Brown looked in the direction of the shots and saw, about 14 feet away, a silhouette that resembled appellant. Brown subsequently identified appellant as the shooter from a six-pack of photographs. After the shots stopped, Brown heard someone running.

Appellant returned to Boyd with the AK-47. He said, I got them. I laid them all down. Boyd drove appellant back to his grandmothers house.

Sykes and Clay died from multiple gunshot wounds. Diggs and Brown were both wounded. Police recovered twenty-nine 7.62 millimeter shell casings from the yard, driveway and parkway of Pitres house. Standard AK-47 assault rifles fire 7.62 millimeter rounds, and a standard AK-47 ammunition magazine holds 30 rounds. A firearms expert testified that, due to the way in which an AK-47 ejects spent shell casings, the location of the casings was consistent with a person firing an AK-47 toward Jamie Street from the right side of Pitres house.

Appellant was charged with two counts of murder and two counts of attempted murder. (Pen. Code, 187, 664.)[1] It was alleged as to all counts that appellant personally and intentionally discharged a firearm, causing great bodily injury or death ( 12022.53, subd. (d)), and that appellant was armed with a firearm. ( 12022, subd. (a)(1).) It was further alleged as to the murder counts that appellant committed multiple murders ( 190.2, subd. (a)(3)), and, as to the attempted murder counts, that he inflicted great bodily injury. ( 12022.7, subd. (a).) Boyd was charged with the same offenses and the same special allegations, except it was not alleged that he violated section 12022.53, subdivision (d) or section 12022.7, subdivision (a). He pled guilty to accessory after the fact ( 32) and agreed to testify at appellants trial.

A jury convicted appellant of all charges and found all special circumstances to be true. The trial court sentenced appellant to two life terms in prison without the possibility of parole for the murders, plus two life terms in prison with the possibility of parole for the attempted murders. Each sentence carried an additional term of 25 years to life, and all four sentences were to be served consecutively. The section 12022 enhancements were stayed for each count pursuant to section 654. The court struck the great bodily injury enhancements in the interest of justice. This appeal followed.

DISCUSSION

I

Appellant claims the trial court abused its discretion in setting limits on voir dire. Code of Civil Procedure section 223 provides, in part, that [i]n a criminal case, the trial court has discretion to limit the oral and direct questioning of prospective jurors by counsel. The trial court has discretion to limit voir dire, and the court abuses that discretion, warranting reversal of a conviction on appeal, only when its decision falls outside the bounds of reason [citation] resulting in a miscarriage of justice. [Citation.] (People v. Navarette (2003) 30 Cal.4th 458, 486.)

The relevant facts about the manner in which the trial court conducted voir dire are these: from a venire of 90 potential jurors, each of whom had completed a jury questionnaire that was made available to counsel before voir dire, the trial court initially examined 40, 12 of whom were tentatively seated on the jury panel. After challenges for cause were made, the parties peremptorily challenged prospective jurors seated on the panel of 12. The challenged jurors were replaced by other members of the group of 40. After several prospective jurors were excused or allowed to postpone service, and after the 40th was seated, the court and counsel proceeded to question the remaining 43 in the same fashion.

Appellant claims the collective questioning precluded defense counsel from assessing the potential jurors demeanor because he could not see their faces or make eye contact with them. He argues that this procedure constituted an abuse of discretion. We disagree.

At the outset, we note that group voir dire has been accepted as reasonable in other cases. (See, e.g., People v. Carter (2005) 36 Cal.4th 1215, 1249-1252; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2007) 5:162, p. 5-34.) In this case, while defense counsel complained that the collective questioning precluded him from making eye contact with prospective jurors, he did not voice that complaint until the end of the second day of voir dire, after all 90 prospective jurors had been questioned. Except for saying that he was moving to a particular spot in the courtroom so I can look at all of you when he began questioning the first group, defense counsel examined all 90 prospective jurors without commenting on his ability to see them. Defense counsel challenged 21 of the 90 potential jurors for cause and exercised all 20 of his peremptory challenges, which does not suggest he had trouble assessing the venire. It appears that the collective questioning did not unreasonably hamper defense counsel in his conduct of voir dire.

Appellant argues the trial court did not allow him adequate time to question the prospective jurors. In exercising its discretion to limit voir dire, [t]he court may specify the maximum amount of time that counsel for each party may question an individual juror, or may specify an aggregate amount of time for each party, which can then be allocated among the prospective jurors by counsel. (Code Civ. Proc., 223.) [I]t is the duty of the trial judge to restrict the examination of the prospective jurors within reasonable bounds so as to expedite the trial. [Citations.] (People v. Carter, supra, 36 Cal.4th at p. 1251.)

Defense counsel ultimately received 25 minutes to question the first group of 40 prospective jurors, and 30 minutes to question the second group of 43. The trial court indicated that, on request and for good cause, it would grant the parties additional time to question the prospective jurors. Defense counsel voluntarily ended his questioning of the first group, but said, I would like to go on and ask some others. The court replied, We have gone on for almost 30 minutes. I appreciate that. But I think what we will do is turn to the People and let them inquire, and then well see how things develop. The court did not allow defense counsel to ask an additional question after the prosecutor finished with the first group, but promised to take that up if counsel mentioned it the next day. Counsel did not do so. On the second day, the court granted defense counsels request to ask two additional questions after both parties finished questioning the second group of prospective jurors. Nothing in this record indicates that the courts time limits were unreasonable. (People v. Carter, supra, 36 Cal.4th at p. 1251 [voir dire time limit reasonable when parties had opportunity to elicit information on the fitness of prospective jurors and court allowed parties to request follow-up questions].)

II

Appellant argues the trial court erred in denying challenges for cause to certain prospective jurors for bias.[2] If the prospective jurors statements are conflicting or equivocal, the courts determination of the actual state of mind is binding. If the statements are consistent, the courts ruling will be upheld if supported by substantial evidence. [Citation.] (People v. Ledesma (2006) 39 Cal.4th 641, 675.) [A] juror may be excused for implied bias only for one of the reasons listed in Code of Civil Procedure section 229, and for no other. [Citation.] If the facts do not establish one of the grounds for implied bias listed in that statute, the juror may be excused for [a]ctual bias if the court finds that the jurors state of mind would prevent him or her from being impartial. (Id. at p. 670.) Code of Civil Procedure section 229, subdivision (f) provides that a challenge for implied bias may be taken for [t]he existence of a state of mind in the juror evincing enmity against, or bias towards, either party.

Prospective Juror No. 5 said appellant would have to prove himself credible. Prospective Juror No. 8 said appellant would start with a strike against him, but also said, I think I could be fair that way. When asked if he could not be fair to appellant due to appellants connection to rap music, prospective Juror No. 28 said, [i]t would bother me, lets put it that way, and agreed that appellant would start basically with a negative. Prospective Juror No. 36 stated that appellant would begin with a strike against him because he was a rapper. Prospective Juror No. 46 said he would perhaps be skeptical of testimony in appellants favor, and to that extent could not give appellant a fair trial, but also said, I will not be unfair. (As we have said, this prospective juror was excused by the prosecution.) Prospective Juror No. 51 said it would be difficult to give appellant a fair trial, but agreed she could be a fair arbiter of the facts. Finally, prospective Juror No. 69 first said he could not give appellant a fair trial, but later said, I am going to look at every single bit of the case, and I would be fair.

All of these prospective jurors, except Juror Nos. 5 and 36, made conflicting or equivocal statements, thus the trial courts determination that they were unbiased is binding. Prospective Juror No. 5s statement may have merely indicated that she misunderstood the burden of proof because she had not yet been instructed on it; substantial evidence supports the trial courts finding that this was so. Appellant argues prospective Juror No. 14 gestured to indicate bias, but the record does not reflect that. The trial court did not err in denying the for-cause challenges to these jurors.

Prospective Juror No. 36 unequivocally agreed that his evaluation of appellants guilt or innocence would be influenced by appellants status as a rapper. However, the courts refusal to excuse this juror was harmless because appellant peremptorily challenged him. (People v. Avila (2006) 38 Cal.4th 491, 540.) [T]he loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury. (Ibid.)

Appellant argues all prospective jurors were contaminated by hearing some jurors negative responses to questions about rap music and artists. There is no evidence that the jurors were influenced by hearing those responses, and we presume they followed the trial courts admonition to decide the case based solely on the evidence and the law. (People v. Mendoza (2007) 42 Cal.4th 686, 699.)

III

Appellant argues the trial court erred in denying his motion to suppress a printed record of text messages sent from a pager found at the crime scene. The telephone number on appellants business card matched the pager number, and messages sent from the pager on the night of the incident included, On the way to Grams, these niggas no my spot. I got to get em, and They di. When reviewing a ruling on an unsuccessful motion to exclude evidence, we defer to the trial courts factual findings, upholding them if they are supported by substantial evidence, but we then independently review the courts determination that the search did not violate the Fourth Amendment. [Citation.] (People v. Panah (2005) 35 Cal.4th 395, 465.)

Appellant claims a search warrant for records related to the pager did not include a warrant for records of text messages sent from that pager. After reading the warrant and hearing argument, the trial court ruled the text messages were included as property to be seized in the warrant. The court noted that the term records appeared first among the items listed in the warrant. We cannot assess the terms of the search warrant because it was not included in the record on appeal. Giving appellant the benefit of the doubt that the term text messages is not explicitly stated in the warrant, the term records is nonetheless broad enough to encompass printed records of text messages sent from the pager.

The statutes cited by appellant do not support his argument that the record of the text messages was inadmissible. Title 47 United States Code section 605(a) excepts response to a subpena issued by a court of competent jurisdiction from that statutes general prohibition against divulg[ing] or publish[ing] the existence, contents, substance, purport, effect, or meaning of interstate wire or radio transmissions. (47 U.S.C. 605(a)(5) & (6).) The text message record was divulged in response to a subpoena. The text messages also were not intercepted within the meaning of Title 18 United States Code section 2515; the term intercept in that statute means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. (18 U.S.C. 2510(4).) A subpoena is not such a device. Section 632 is inapplicable for the same reason; a subpoena is not an electronic amplifying or recording device used to eavesdrop on confidential communication.

IV

Appellant argues the trial court erred in preliminarily ruling that his 1988 juvenile adjudication for robbery would be admissible to impeach his testimony. The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. . . . Under this standard, a trial courts ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 146-147.) Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the courts discretion under Evidence Code section 352. (People v. Harris (2005) 37 Cal.4th 310, 337.) Prior conduct that was the subject of a juvenile adjudication may be introduced if it shows moral turpitude. (People v. Lee (1994) 28 Cal.App.4th 1724, 1740.)

Appellant argues the court should have excluded the adjudication under Evidence Code section 352, which states in relevant part: [t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Our review of the trial courts ruling on this matter is deferential. (People v. Pollock (2004) 32 Cal.4th 1153, 1171.) We have carefully reviewed the record, including the arguments of counsel and the reasons given by the court for its ruling. We are satisfied that the court did not act in an arbitrary, capricious, or absurd manner in ruling the adjudication was admissible for impeachment.

Later in the trial, the court informed appellant that it had decided the adjudication would not be admissible to impeach him if he chose to testify, because the court wanted appellants decision whether to testify to be unencumbered. Appellant maintained his earlier decision not to testify.

Appellant argues the trial courts final ruling on the issue came too late for him to alter his trial strategy. Whether it did or not, as we have said, the courts initial decision to allow the adjudication to be admitted was not error. Appellant cannot claim error or prejudice because the trial court later changed its ruling to his benefit.

Appellant argues that allowing admission of the prior adjudication for impeachment was the functional equivalent of an order prohibiting defendant from giving testimony. This argument lacks merit; appellant was free to testify, and his decision not to do so appears to have been purely tactical.

V

Appellant argues the trial court erred in not permitting him to call three attorneys to testify about a plea bargain entered into by his former co-defendant, Boyd. The court denied appellants request on the grounds that the attorneys testimony was subject to the attorney-client privilege, irrelevant and unduly time consuming under Evidence Code section 352. Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion. [Citation.] But exclusion of evidence that produces only speculative inferences is not an abuse of discretion. [Citation.] (People v. Cornwell (2005) 37 Cal.4th 50, 81.)

Appellant sought to examine a deputy district attorney and Boyds two attorneys as to whether Boyds trial testimony was coerced, but he admitted he did not know whether questioning them would produce any evidence that it was. Under these circumstances, asking the attorneys whether Boyds testimony was coerced would risk confusing the jury by implying coercion without any supporting evidence. In addition, the questioning would likely have been cumulative; appellant cross-examined Boyd about his motive to testify, and specifically asked Boyd whether he did so out of fear of prosecution. The probative value of questioning the attorneys would have been slight, while questioning them would likely have confused the jury and consumed a significant amount of time. The trial court did not abuse its discretion in precluding appellant from examining the attorneys at trial.[3]

Appellant contends that he was precluded from fully cross-examining Boyd about the influence of alleged police coercion on his plea bargain and trial testimony. To the extent this argument is a reiteration of his claim that he was precluded from examining the attorneys, we disagree for the same reasons. To the extent he raises it independently, it lacks merit; appellant had a full opportunity to cross-examine Boyd and the detective who interrogated him, and did so.[4] Boyds cross-examination as to the allegedly coercive interrogation and subsequent plea bargain spans 27 pages in the reporters transcript. The detectives cross-examination fills another three pages in the reporters transcript.

Appellant argues the trial court abused its discretion by not allowing him to call one of his own attorneys as a witness. The attorney offered to testify that he had written letters to the district attorneys office asking whether the pager had been tested for fingerprints, and that he was told it had not been tested. The court excluded his testimony on the ground that it was irrelevant.

The testimony was slightly relevant, but the trial court did not abuse its discretion in excluding it. Appellant argued at trial that Boyd was the shooter, and that Boyds fingerprints were not found on the pager because they deteriorated before the pager was tested. The attorneys testimony would have tended, at most, to support a speculative inference that the fingerprints might have been found had the police tested for them earlier. Because an advocate is a partisan commentator and a witness is sworn to tell the truth, a lawyer acting as both an advocate and a witness risks confusing the jury as to the lawyers credibility and role. (People v. Donaldson (2001) 93 Cal.App.4th 916, 928-929.) The slight probative value of this testimony would have been significantly outweighed by the confusion caused to the jurors by appellants attorney taking the stand as a witness. (Evid. Code, 352.)

Finally, appellant argues the trial courts exclusion of the attorney witnesses violated his due process right to present evidence in his defense. But a state courts application of ordinary rules of evidenceincluding the rule stated in Evidence Code section 352generally does not infringe upon this right. (People v. Cornwell, supra, 37 Cal.4th at p. 82.) As in Cornwell, [t]he excluded evidence in the present case was not so vital to the defense that due process principles required its admission. (Ibid.)

VI

Appellant argues the prosecutor committed misconduct during summation. A prosecutors conduct violates the Constitution only when it is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct that does not rise to the level of a constitutional violation will constitute prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Ledesma, supra, 39 Cal.4th at pp. 680-681.) [A]s a general rule, to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm. (People v. Gurule (2002) 28 Cal.4th 557, 657.)

In his closing argument, appellants counsel argued that Boyd had an incentive to testify consistently with his past statements because he would not be sentenced under his plea agreement until appellants trial concluded. The prosecutor objected and asked the court to take judicial notice that Boyd already had been sentenced. Appellant contends that in doing so, the prosecutor asserted a fact not in evidence, improperly vouched for a witness, and made an untrue statement in front of the jury.

The court immediately admonished the jurors that it was their responsibility to determine the facts based on the evidence received at trial. [I]t is assumed the jury followed the admonishment and that prejudice was therefore avoided. (People v. Mendoza, supra, 42 Cal.4th at p. 701.) We have taken judicial notice of the minutes of Boyds sentencing hearing. The minutes reflect that Boyd was sentenced on March 29, 2006; Boyds testimony at appellants trial began on May 2, 2006. The prosecutors statement was correct; there was no falsehood.

Later, in closing argument, appellants counsel acknowledged that the jurors may have felt moral outrage about the killings, but argued that the outrage was not properly directed toward him. During her rebuttal argument, the prosecutor asked the jurors not to convict appellant on moral outrage alone, but to convict him because the evidence proved him guilty beyond a reasonable doubt. Appellant argues the prosecutor suggested that the jurors should convict him partially out of moral outrage. But taken in context, the prosecutors remark suggests the opposite. Furthermore, appellant forfeited this claim by failing to timely object and ask the court to admonish the jury.

In her rebuttal argument, the prosecutor expressed personal doubt about a witnesss testimony that Boyd admitted to being the shooter. Appellant forfeited his argument that this was improper by failing to timely object and request a curative admonition. In any event, the prosecutors comment was not prejudicial; it was brief and she did not return to the point. (See People v. Mendoza, supra, 42 Cal.4th at p. 704.)

VII

Appellant argues an instruction requiring the jury to consider whether Boyd was appellants accomplice directed the jury to find appellant guilty. We review de novo whether jury instructions correctly state the law. (People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1506.)

A trial court has a duty to instruct the jury sua sponte on general principles which are closely and openly connected with the facts before the court. [Citation.] (People v. Abilez (2007) 41 Cal.4th 472, 517.) Section 1111 provides in full: A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.

Whether a person is an accomplice within the meaning of section 1111 is a factual question for the jury to determine in all cases unless there is no dispute as to either the facts or the inferences to be drawn therefrom. [Citations.] (People v. Avila, supra, 38 Cal.4th at p. 565.) If there is evidence that a witness against the defendant is an accomplice, the trial court must give jury instructions defining accomplice. [Citation.] It also must instruct that an accomplices incriminating testimony must be viewed with caution [citation] and must be corroborated [citations]. If the evidence establishes that the witness is an accomplice as a matter of law, it must so instruct the jury [citation]; otherwise, it must instruct the jury to determine whether the witness is an accomplice [citation]. [Citations.] (People v. Felton (2004) 122 Cal.App.4th 260, 267-268.)

The court instructed the jury as follows:

Before you may consider the testimony of Tarhonne Boyd as evidence against the defendant, you must decide whether Tarhonne Boyd was an accomplice. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if: ONE, he or she knew of the criminal purpose of the person who committed the crime; and TWO, he or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crimes. The burden is on the defendant to prove that more likely than not that [sic] Tarhonne Boyd was an accomplice.

If you decide that a witness was not an accomplice, then supporting evidence is not required and you should evaluate his or her testimony as you would that of any other witness. If you decide that a witness was an accomplice, then you may not convict the defendant based on his or her testimony alone. You may use the testimony of an accomplice to convict the defendant only if: ONE, the accomplices testimony is supported by other evidence that you believe; TWO, that supporting evidence is independent of the accomplices testimony; and THREE, that supporting evidence tends to connect the defendant to the commission of the crimes.

Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence.

Boyd testified that he drove appellant to appellants grandmothers house, where appellant retrieved an assault rifle. He then drove appellant to a street near the Pitre residence, allowed him to exit the vehicle, then waited while he heard a rapid series of gunshots. After appellant returned, he told Boyd, I got them. I laid them all down. Boyds testimony, if credited, was strong evidence of appellants guilt and Boyds complicity. The court did not err in giving the challenged instructions; in fact, it was required to do so. (People v. Felton, supra, 122 Cal.App.4th at pp. 267-268.)

Appellant argues the instruction compelled the jury to find that Boyd was appellants accomplice, thus implying that appellant committed the murders. This argument lacks merit; the instruction merely permitted the jury to find that Boyd was an accomplice, and the jurors were expressly instructed that whether Boyd was an accompliceand whether appellant was guiltywere issues for them to decide.

Appellant argues Boyd could not have been an accomplice as a matter of law because Boyd pled guilty to being an accessory after the fact. Appellant is incorrect; being a principal in a crime and being an accessory to that crime are not mutually exclusive offenses as a matter of law. (In re Malcolm M. (2007) 147 Cal.App.4th 157, 169.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J. SUZUKAWA, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

[2] Appellant inaccurately claims that he expended peremptory challenges on prospective Juror Nos. 46, 69 and 90. In fact, the prosecutor peremptorily challenged prospective Juror No. 46; prospective Juror Nos. 69 and 90 were not peremptorily challenged at all.

[3]Hayes v. Brown (9th Cir. 2005) 399 F.3d 972, 981-982 and People v. Lee (2002) 95 Cal.App.4th 772, 786-787, cited by appellant, are inapposite. Those cases held, respectively, that the prosecutions knowing presentation of false evidence or coerced testimony violates the due process clause of the Fourteenth Amendment to the United States Constitution, but there is no evidence that the prosecution committed either of those acts in this case. Those cases do not stand for the proposition that appellant had a due process right to, in the words of the trial court, conduct a fishing expedition during trial.

[4] For example, defense counsel asked Boyd:

Q: Before you made your statement to Detective Lenane about in fact being there, were you told by Detective Lenane that you had the choice of either telling him about the incident, and going to work and to home, or going to jail?

A: Yes.

Q: Is that when you began telling Detective Lenane that you were there with Coutrell?

A: Yes.