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P. v. Yun

P. v. Yun
04:29:2013





P










P. v. Yun

















Filed 4/25/13
P. v. Yun CA2/1

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>NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 ONE




>






THE PEOPLE,



Plaintiff and
Respondent,



v.



JOHN LEE YUN et al.,



Defendants and
Appellants.




B235694



(Los Angeles County

Super. Ct. No. GA078803)






APPEAL from a judgment of the Superior Court of Los
Angeles County
, Michael D. Carter, Judge. Affirmed in part and reversed in part with
directions.

Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant
Bobby Matters.

Roberta
Simon, under appointment by the Court of Appeal, for Defendant and Appellant
John Lee Yun.

Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Mary Sanchez and Taylor Nguyen, Deputy Attorneys General, for
Plaintiff and Respondent.

——————————

Bobby Matters and John
Lee Yun appeal their convictions for assault. Matters also appeals his conviction for href="http://www.fearnotlaw.com/">dissuading a witness. The jurieshref="#_ftn1" name="_ftnref1" title="">[1] found allegations to be true that (1) Yun’s
offenses of assault by means likely to produce great bodily injury, and
Matters’s offenses of simple assault and attempt to dissuade a witness were
committed for the benefit of, in association with, or at the direction of a href="http://www.mcmillanlaw.com/">criminal street gang.

Matters contends that the trial court erred, and that
reversal is required because the court, (1) improperly admitted his
statement to the police obtained during a custodial interrogation; (2) failed
to instruct sua sponte on the defense of necessity; (3) imposed an unauthorized
sentence for his conviction for dissuading a witness; and (4) wrongly concluded
it lacked the discretion to strike the Penal Code section 186.22, subdivision
(b)(4) allegation.href="#_ftn2"
name="_ftnref2" title="">[2] Matters
also contends that his trial counsel rendered ineffective assistance of counsel
by failing to seek a reduction of his conviction for dissuading a witness to a
misdemeanor offense. We will vacate
Matters’s sentence for dissuading a witness and remand for resentencing.

Yun,
in turn, maintains the trial court committed reversible by (1) failing sua
sponte to give accomplice instructions; (2) admitting incendiary photographic
evidence; (3) excluding evidence of a hung jury in the trial of defense
witnesses. Yun also argues that
cumulative errors require reversal and that an enhancement imposed under
section 667.5, subdivision (b) must be stricken. We agree only with Yun’s final contention, an
error the Attorney General concedes. In
all other respects, we affirm.

FACTS AND PROCEDURAL HISTORY

By third amended information, Matters and Yun were
charged as follows:

Counts
1 and 3: charged Yun with href="http://www.mcmillanlaw.com/">assault with a deadly weapon (§ 245,
subd. (a)(1));

Count
2: charged Yun with attempted second
degree robbery (§§ 664, 211), and also alleged that Yun personally used a
deadly weapon (box cutter) in the commission of the offense (§ 12022, subd.
(b)(1));

Count
4: charged Matters with dissuading a
witness by force or threat (§ 136.1, subd. (c)(1);

Counts
5 and 6: charged Matters and Yun jointly
with assault by means likely to produce great bodily injury (§ 245, subd.
(a)(1).) As to both counts, the information
further alleged that Matters and Yun personally inflicted great bodily injury
upon the victims (§ 12022.7, subd. (a)).

As
to all counts, the information alleged that the offenses were gang related (§
186.22, subds. (b)(1)(B), (b)(1)(C), and (b)(4)). Finally, as to counts 1, 2, 3, 5, and 6 it
was alleged that Yun had a prior “strike” conviction (§§ 667, subds. (b)-(i);
1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667, subd.
(a)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)). Yun and Matters pleaded not guilty and denied
the special allegations.

Yun’s
jury convicted Yun as charged in counts 1 and 3, and found true the gang
allegations. The jury also found true
the great bodily injury allegation in count 3.
The jury convicted Yun as charged in counts 5 and 6, and found true the
gang and great bodily injury allegations.
Yun was acquitted of attempted second degree robbery (count 2). In a bifurcated proceeding, the court found
true the prior conviction and prior prison term allegations against Yun.

The
Matters jury convicted Matters of the lesser offense of witness intimidation in
count 4 (§ 136.1, subd. (a)(2).) The
jury found the use-of-force allegation not true, but found the gang allegation
true. In counts 5 and 6, the jury
convicted Matters of the lesser offense of simple assault (§ 240), and found
the gang allegations true.

The
trial court denied probation. Yun was
sentenced to 29 years and four months as follows: As to count 5, the court imposed the midterm
of three years, doubled to six years under the “Three Strikes” law, plus 10
years for the gang enhancement and three years for the great bodily injury
enhancement. In count 6, the court
imposed a consecutive term of one year (one-third the midterm of three years),
doubled to two years under Three Strikes law, plus three years and four months
(one-third of 10 years) for the gang enhancement and five years for the prior
serious felony enhancement. The court struck
the great bodily injury enhancement and stayed the one-year prior prison
enhancement. The court stayed the
sentences as to counts 1 and 3, pursuant to section 654. Yun was ordered to pay various fees and fines,
and awarded 665 days of presentence custody credit. (§ 1202.4, subd. (b), § 1202.45.)

The
trial court also denied probation as to Matters. He was sentenced to eight years and eight
months to life in prison as follows: In
count 5, the court imposed the low term of one year. In count 6, the court imposed a term of eight
months (one-third the midterm of two years).
In count 4, the court imposed a term of seven years to life pursuant to
section 186.22, subdivision (b)(4)(C).
Matters was ordered to pay a restitution fine (§ 1202.4, subd. (b)), and
the court imposed and stayed a corresponding parole revocation fine (§
1202.45). He was awarded 361 days of
presentence custody credit.

FACTUAL BACKGROUND

Prosecution evidence

1. The
crimes


a. Will
Brown


On
December 29, 2009, at 6:00 p.m., Will Brown, Cono D’Amato, and Micaela Brito
went to Smith Park in San Gabriel hoping to join a “pick-up” game of
basketball. Two half-court games were
ongoing when they arrived. Matters was
playing in one game. Brown, who had
known Matters since middle school, asked if they could play with his basketball. Matters responded, “Here you go,” gave Brown
the ball. Matters walked off the court
and made a cell phone call, as Brown and his friends began to play.

Soon
thereafter, a group of 10–20 men arrived at the park. Most of the men were Hispanic, but the group
also included some Asian and Caucasian men.
Brown recognized Yun, Christopher Zuniga and Michael Cardenas. Matters joined the group which surrounded
Brown and D’Amato. Yun told Brown and
D’Amato, “This is our park.” Yun
announced his gang affiliation, “Sangra gang,” and displayed the gang’s hand
sign. Yun, Matters and the rest of the
group advanced toward Brown, who ran towards the handball courts. Five or six men, including Yun, Zuniga, and
Cardenas, chased after and surrounded Brown.
Zuniga punched Brown in the back of the head. Brown fought back, hitting Cardenas in the
face. Cardenas punched Brown in the
face, and Yun punched Brown in the ribcage.
Other unnamed men hit and kicked Brown “anywhere they could,” beating
him for about 10 minutes until he blacked out.

Brown
regained consciousness and tried to run away, he heard someone yell, “Get that
bitch.” Eight or nine men, including
Yun, Zuniga, and Cardenas, chased Brown and beat him again. During this attack, Yun repeatedly threatened
to “cut” Brown. Yun swung a box cutter
at Brown’s neck and slashed his arm. The
men continued beating Brown until he lost consciousness. Matters was involved in the attacks on
Brown. When he regained consciousness,
Brown saw that the men had surrounded D’Amato.
Yun, Matters, Zuniga, and Cardenas were kicking D’Amato. Brown ran to a nearby store and called for
help.

Brown
suffered a cut on one bicep that required 13 staples, bruises to his stomach,
back and legs, and lingering headaches and memory loss. He identified Yun, Matters, Cardenas and
Zuniga from a photographic lineup.

Two
days after the attack, Brown received three calls on his cell phone during the
early afternoon. He did not answer the
first call. Brown answered the second
call, but the caller said nothing. The
third call was from Matters. Referring
to Yun by his gang moniker, “Chino,” Matters told Brown that “if you don’t
change your story about Chino, your family, your sister’s boyfriend’s family,
and your house is [sic] all at risk,” and “they were going to kill [him.]” In fear for his own and his family’s safety,
Brown called the police. San Gabriel
Police Officer Ricky Nakamura met with Brown that day and later confirmed that
the call was made from Matters’s cell phone.

b. Evidence admitted only
against Matters


After he met with Brown, Nakamura went to
Matters’s house. He asked if Matters had
called Brown, which Matters denied.
Nakamura “proceeded to ask [Matters] further questions in regards to
contacting . . . Brown;” Matters persisted in denying that
he had called Brown. Nakamura ultimately
arrested Matters.

Nakamura
interviewed Matters at the police station after advising him of his >Mirandahref="#_ftn3" name="_ftnref3" title="">[3] rights.
Matters waived his rights and agreed to speak to Nakamura. He explained that Yun had called him earlier
that day and instructed him to call Brown and tell him to “switch up his story
and to not get [Yun] busted.” Matters
called Brown and relayed Yun’s message.
He denied having threatened Brown or his family, saying he “just basically
was a mediator between [Yun and Brown] in order to help his friend [Yun]
out.” Matters never said he feared Yun
or that he was afraid of what might happen to him if he didn’t call Brown.

>c. Cono D’Amatohref="#_ftn4" name="_ftnref4" title="">[4]

D’Amato testified that when the group first
approached him and Brown, Matters asked D’Amato “where [he] was from,” meaning
whether D’Amato was in a gang. D’Amato
told him, “I don’t bang.” Matters asked
D’Amato if he had written on the ground, poles or tree near the basketball
courts. D’Amato said he had not. Matters told D’Amato to, “Back up your
shit. Back up your shit.” Matters then walked behind D’Amato who was
hit in the head by someone he did not see.
D’Amato fell down and several men kicked and stomped on his head until
he lost consciousness. When D’Amato
awoke the men “rushed” him again.
Someone asked D’Amato if he was from the “Lomas” gang, a rival gang of
Sangra’s, which D’Amato denied. Brito
helped D’Amato get up, but two men rushed him again. Yun approached D’Amato, identified himself as
“Chino,” flashed a gang sign for “Avenues” and yelled,“Sickos.” He demanded D’Amato’s wallet, but D’Amato
said he left it in the car. Yun swung a
box cutter at D’Amato. D’Amato jumped
back to avoid being stabbed and ran across the street to get help.

D’Amato
suffered cuts to his head and swelling to his ear and head as a result of the
attacks. He identified Yun as “Chino,”
the man with the box cutter, from a photographic lineup. He also identified Zuniga as having been
present when he was attacked, but said Zuniga had not hit or kicked him. Zuniga backed away when Yun swung the box
cutter at D’Amato. D’Amato testified
that Matters was present during the attack.
He said Matters had not gone after Brown, but had stayed with D’Amato,
although Matters “didn’t say or do anything.”

>d. Micaela Brito

Brito’s testimony was largely consistent with the
testimony given by Brown and D’Amato.
While Brito and Brown played ball, D’Amato squatted down by a basketball
pole and appeared to draw or write something on the ground with his
finger. Brito saw Matters take out his
cell phone. Shortly thereafter, a group
of eight to 15 men arrived at the park, some of whom “jumped” D’Amato and some
of whom chased Brown. Brito did not see
anyone with a weapon.

2. Jail
cell graffiti


On
January 2, 2010, Yun was in custody in a cell at the San Gabriel Police
Department. At about 5:30 p.m., Nakamura
discovered gang graffiti inside the jail cell.
The graffiti was not there prior to Yun’s custody.

3. Gang
Evidence


San
Gabriel Police Detective Fabian Valdez testified as the prosecution’s gang
expert. Valdez testified about the
Sangra gang’s history, make-up and culture.
The gang’s primary activities range from vandalism to multiple
homicides. Valdez explained that Smith
Park was territory claimed by the Sangra gang.
One clique of the Sangra gang was the “Sickos” clique. The gang allowed some affiliated tagging
crews to draw graffiti in its territory, specifically, the “F.T.S.,” “K.F.T.,”
“D.F.W.,” and “4U2C” crews. But if an
unaffiliated tagging crew came into the gang’s territory without permission,
the gang would retaliate with violence.

According
to Valdez, Yun was an admitted and senior member of the Sangra gang. Cardenas was also an admitted member of that
gang. Zuniga was, “at minimum,” an
associate of Sangra, and he was headed “down the path of becoming a gang
member.” Matters was not a member of the
Sangra gang. Brown, who said he was or
had been the head of the K.O.A. tagging crew, told Valdez that Matters was a
member of the D.F.W. tagging crew, affiliated with the Sangra gang. Matters had previously been arrested for
vandalizing wet cement with the name of a rival tagging crew, with the name
crossed out. In gang culture that meant
disrespect and a threat to kill. Matters
had also been arrested in possession of tagging tools, after marking up a trash
can (with a nongang related word).

Based on a hypothetical posed to him patterned on the
circumstances of the attacks on Brown and D’Amato at the park, and the phone
call to Brown, Valdez opined that the offenses were “done for the benefit, at
the association [sic] and direction of the gang,” and committed “with the
specific intent to promote, further, or assist in any criminal conduct by gang
members.” Gangs survive by being
respected by other gangs and by being feared in the community. Gangs do not tolerate disrespect. The attacks at issue here promoted the Sangra
gang in that they “reinforce[d] the intimidation . . . the gang needs
to survive,” instilling fear in the community.
Valdez opined that someone present at the scene when gang members
committed a crime who tried to leave, would be at risk of physical harm. Matters could have faced retaliation from the
Sangra gang had he left the scene during the attacks on Brown and D’Amato, and
similarly would face retaliation for not participating in the assaults.

Valdez testified that graffiti reflecting D’Amato’s
moniker, “Decoy” and the tagging crew initials, “T.F.O.C.” were drawn in the
park before the attacks. He opined that
this graffiti likely motivated the attacks on Brown and D’Amato because
“T.F.O.” was not associated with the Sangra gang and the “tag” would be “the
equivalent of a declaration of war” between rival gangs. He also testified that threatening a witness
“to change his story” would be done for the benefit of, in association with or
direction of the criminal street gang” and “done with the specific intent to
promote, further, or assist any criminal conduct by gang members.” Such threats help gang members and “sends a
message that they are able to get away with certain crimes and sway people to
not testify against them.”

Defense Evidence

1. Taylor
Ruddell and Kohana Tom


Taylor Ruddell and Kohana Tom are Yun’s
friends. Ruddell and Tom were walking by
the park on December 29, 2009 and saw Yun standing alone. They saw Brown and another man approach Yun
and speak to him. The next thing they
knew, the men had “jumped” Yun who curled into a ball and did not fight
back. Zuniga and Matters were also at
the park. Tom did not tell anyone what
he saw at the park until he was subpoenaed by Yun’s attorney.

2. Zuniga
and Cardenas


Zuniga and Cardenas testified that they were at the park
playing basketball with Matters. Zuniga
borrowed Matters’s phone to call Yun to tell him to bring a handball to the
park. Zuniga, Cardenas and Matters
resumed their game, and Yun arrived shortly thereafter.

While
he was playing, Zuniga heard a commotion.
He saw that someone was being “beat up” by the handball courts. He saw Brown, D’Amato and a woman. He heard Brown or D’Amato make a racial slur
to or about Yun. One of them said, this
is “T.F.O.” and the two men began fighting Yun, who fell and “balled up.” Zuniga, Cardenas and Matters ran over to help
Yun. Zuniga hit Brown in the back of his
head. Zuniga and Cardenas kicked D’Amato
while Yun ran away. When Brown tried to
escape, Zuniga, Cardenas and Yun chased him.
Zuniga never saw anyone with a blade or knife.href="#_ftn5" name="_ftnref5" title="">[5]

Cardenas
testified that he pulled out a knife during the fight and swung it at Brown to
scare him off. Cardenas did not intend
to cut Brown, but Brown got cut by the knife when he charged at and punched
Cardenas. After the fight Cardenas
turned himself into the police. He had
told the police he knew nothing about the incident because he was afraid, and
because his girlfriend was several months pregnant.href="#_ftn6" name="_ftnref6" title="">[6]

3. Matters

Matters
testified that he had been a member of the D.F.W. tagging crew, but ended his
association with that crew four months before the assaults. On December 29, 2009 Matters was playing
basketball at the park when Brown, D’Amato and Brito drove up. As the car pulled up beside him, Brown asked
Matters, “What’s up?” in a friendly manner, and Matters and the three
individuals engaged in a conversation about tattoos. Brown, D’Amato and Brito asked Matters if
they could play basketball with him.
Matters played with Brown and Brito.
D’Amato did not play; he had a rock in his hand and was “tagging on the
floor” of the basketball court.

Matters
stopped playing when his girlfriend called, and went to get a drink of
water. As he returned to the basketball
court, Matters saw Yun drive past the park and park behind D’Amato’s car. Yun got out of the car and walked toward the
basketball court followed by a group of 10 people, including Zuniga and
Cardenas. As he walked, Yun said,
“Sangra” and threw up gang signs. Yun
and the others approached Brown and D’Amato on the basketball court. Zuniga asked Brown if he was from
“T.F.O.” Brown said, “No.” Cardenas responded, “‘I know that you’re from
T.F.O. I seen it all over your MySpace
and Facebook.’” Zuniga then struck
D’Amato in the face, and Brown “took off running.” Some members of the group, including
Cardenas, Zuniga, and Yun followed Brown. The others continued to assault D’Amato for
about five minutes. Matters denied
participating in any assault or acting as a lookout. He did not see anyone with a weapon. He did not see Yun pull out a box cutter and
cut anyone. Matters denied having told
anyone to, “‘back up your shit,’” or accusing anyone of “‘writing on
poles.’” He claimed he left the park
while the attack on D’Amato was ongoing.
Matters did not see the attack on Brown and did not know he had been
stabbed. In Matters’s view, the leaders
of the attacks were Cardenas and Zuniga.

Shortly
after the incident, Matters received an unexpected call from Yun, who had never
called Matters before. Yun, who was
upset, instructed Matters to “switch up [his] story and [Yun] better not be in
it.” Matters understood Yun to mean he
should not mention Yun’s name if asked about the events in the park. Matters felt threatened by Yun. Yun also told Matters to call Brown and give
him the same message. Yun learned that
Matters did not have Brown’s phone number, and told him he would call him back
and said Matters “better pick up.” Yun
called back a few minutes later with Brown’s number. He told Matters to call Brown and said he
knew Brown was home because he had just called the number.

Matters
called Brown, but said nothing when Brown answered the phone. Matters called Yun and told him, “‘nobody
picked up.’” Yun told Matters he was
lying; Brown had answered the phone when Yun called. He told Matters to call again and “not to lie
to him.” Yun threatened to put Matters
“in the same spot that [Brown was] in” if he lied and did not call Brown. Matters then called Brown as instructed. He told Brown, “‘Chino said you better switch
up your story and he better not get busted.’”
Brown hung up. Matters claimed he
did what Yun told him to do because he was afraid for his own and his family’s
safety. Matters was afraid of Yun, a
member of the Sangra gang, and believed Yun was threatening him.

Matters
testified that two months before trial he was attacked by Joey Leal, another
member of the Sangra gang, and another man.
The incident ended only when someone drove up honking and threatening to
summon the police. Leal accused Matters of
“snitching on Chino” and told him, “‘This will not be the end of it. Matters reported the Leal incident to the
police.

In
2005, Matters had problems with a Sangra gang member who had broken the windows
of his girlfriend’s car. Matters got
angry and broke the gang member’s mother’s car window. At the time he was so angry he had not
thought about the gang implications of what he had done, and was “just acting
on [his] anger.” When his anger ebbed,
he had time to think and was now afraid of retaliation. At trial, Matters remained afraid of the
Sangra gang.

Matters
testified about some conflicting statements he made to the police. He said when he had been sitting on the curb
outside his house and Nakamura drove up (throwing dust in his face), Matters at
first denied calling Brown because he was intimidated by Nakamura. Later at the police station, however, Matters
told Nakamura the truth because Matters no longer felt threatened by
Nakamura. Matters explained that Yun
ordered him to call Brown, and asked if he could file a police report against
Yun, whom he admitted being afraid of.
Matters then repeated his statements to another officer.

DISCUSSION

>1. The trial court did not err by denying
Matters’s motion to suppress—his initial statements were not obtained in
violation of Miranda.

Matters contends the trial court erred by admitting his
initial statements to Nakamura, in which he denied calling Brown. Matters maintains he was subjected to
custodial interrogation without first being informed of his >Miranda rights.

a. Background

During
trial, Matters sought to exclude the “set of statements” he made to Nakamura at
his house before his arrest. He argued
that he was in custody and that Nakamura was required to give him >Miranda warnings before questioning
him. The court held a hearing on the
motion to suppress at which Officers Michael Munoz and Nakamura testified as
follows:

On
the afternoon of December 31, 2009, Munoz was on duty when he saw Matters’s
brother (brother) walking. Munoz asked
brother if Matters was home, and brother said he was. Munoz asked if he could walk with brother to
their house to see if Matters would talk to him. At the house, Munoz stayed outside while
brother went in. Munoz saw Matters on
the couch and asked him to come outside and talk to him. Matters agreed and came out to the curb. Munoz did not draw his gun, nor did he
handcuff or touch Matters in any way. He
told Matters “he wasn’t under arrest. He
wasn’t in trouble.” Munoz asked Matters
to sit on the curb, and stood in front of him.
Munoz called Nakamura and engaged in “small talk” with Matters about his
involvement in the incidents at the park while they waited for Nakamura. Munoz did not know that Matters was a
suspect, only that he was “involved in that group of people,” and that he had
made a threatening call to Brown.

Nakamura arrived 15 minutes after Munoz called him. When he drove up, Nakamura saw Matters
sitting on the curb and Munoz standing next to him. Matters was not in
handcuffs. Munoz did not have his weapon
drawn, and Nakamura did not draw his weapon.
Nakamura spoke briefly with Munoz, and then asked Matters if he had
called Brown. Nakamura stood in front of
Matters, questioning him, while Munoz stood nearby and behind Matters. Nakamura spoke to Matters for about 10
minutes about the “Brown matter.”
Nakamura did not tell Matters he had the freedom to leave or to refuse
to answer questions. In Nakamura’s mind,
Matters was “a suspect in the [Brown] matter.”
After questioning him, Nakamura placed Matters in handcuffs, under
arrest.

Based on the officers’ testimony, and relying on >People v. Farnam (2002) 28 Cal.4th 107,
the trial court found that Nakamura had not conducted a custodial interrogation
of Matters. Thus, no >Miranda warning had been required.href="#_ftn7" name="_ftnref7" title="">[7]

At trial, Nakamura testified that he went to Matters’s
home after speaking with Brown about the threatening phone call. Nakamura asked Matters if he had made any
telephone contact with Brown; Matters denied that he had. Nakamura continued to ask Matters more
questions, and Matters continued to deny having called Brown. Nakamura arrested Matters.

During closing argument, the prosecutor argued that
Matters’s initial denial that he had called Brown was “important,” and pointed
to the instruction stating that misleading statements may be evidence of a
defendant’s guilt. The prosecutor argued
that Matters’s consciousness of guilt was evidenced by the fact that he misled
the police to try to persuade them that he did not call Brown, then later
changed his story.

>b. Matters’s motion to suppress was
properly denied because he was not in custody when questioned by Nakamura.

Under Miranda,
“the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation
of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” (384 U.S. at p. 444.) “Miranda
become[s] applicable as soon as a suspect’s freedom of action is curtailed to a
‘degree associated with formal arrest.’ [Citation.]” (Berkemer
v. McCarty
(1984) 468 U.S. 420, 440 [104 S.Ct. 3138, 82 L.Ed.2d 317].) But, “‘[a]bsent “custodial interrogation,” >Miranda simply does not come into
play.’ [Citation.]” (People
v. Ochoa
(1998) 19 Cal.4th 353, 401.)

“Custody determinations are resolved by an objective
standard: Would a reasonable person
interpret the restraints used by the police as tantamount to a formal
arrest? [Citations.] The totality of the circumstances surrounding
an incident must be considered as a whole.
[Citation.] Although no one
factor is controlling, the following circumstances should be considered: ‘(1) [W]hether the suspect has been formally
arrested; (2) absent formal arrest, the length of the detention; (3) the
location; (4) the ratio of officers to suspects; and (5) the demeanor of the
officer, including the nature of the questioning.’ [Citation.]”
(People v. Pilster (2006) 138
Cal.App.4th 1395, 1403 (Pilster), fn.
omitted.) “Additional factors are
whether the suspect agreed to the interview and was informed he or she could
terminate the questioning, whether police informed the person he or she was
considered a witness or suspect, whether there were restrictions on the
suspect’s freedom of movement during the interview, and whether police officers
dominated and controlled the interrogation or were ‘aggressive,
confrontational, and/or accusatory,’ whether they pressured the suspect, and
whether the suspect was arrested at the conclusion of the interview.” (Id.
at pp. 1403–1404.)

The
determination of whether an individual is in custody is a mixed question of law
and fact. (Pilster, supra, 138
Cal.App.4th at p. 1403.) We defer to the
trial court’s findings of fact if they are supported by substantial evidence,
but independently decide whether, given those facts, “‘a reasonable person in
[the] defendant’s position would have felt free to end the questioning and
leave’ [Citation.]” (People
v. Leonard
(2007) 40 Cal.4th 1370, 1400; Pilster, at p.
1403.) Here, the pertinent factors
support the trial court’s conclusion that the interrogation of Matters was not
custodial.

First,
Matters was specifically told he was not under arrest, and agreed to come out
and talk to Munoz who did not touch him, did not draw his weapon and assured
Matters he was not in trouble.

Second,
the entire contact between Matters and both Munoz and Nakamura lasted about 25
minutes, the first 15 of which involved Munoz’s “small talk” with Matters, not
about the phone call to Brown, but regarding Matters’s involvement in the incidents
at the park.

Third,
the ratio of officers to Matters was two to one, and there is no evidence the
officers’ demeanor was aggressive, threatening or anything short of
professional.

Fourth,
the conversation took place in a familiar location just outside of Matters’s
own home, in public view of his family and neighbors. “[The] exposure to public view both reduces
the ability of an unscrupulous policeman to use illegitimate means to elicit
self-incriminating statements and diminishes the [defendant’s] fear that, if he
does not cooperate, he will be subjected to abuse.” (Berkemer
v. McCarty
, supra,> 468 U.S. 420, 438.)

Fifth,
although Nakamura questioned Matters specifically about the calls to Brown, the
fact that officer has focused suspicion is “not relevant” to determining
whether a suspect is in custody for purposes of
Miranda. (Stansbury
v. California
(1994) 511 U.S. 318, 326 [114 S.Ct. 1526, 128 L.Ed.2d
293].) Neither officer drew a weapon or
handcuffed Matters, and both spoke with Matters for only a brief time.

Although
Matters was not specifically told he was free to leave, nor advised that he did
not have to answer the officers’ questions, the record establishes that,
barring some aggravating circumstance not present here, a reasonable person would
conclude the circumstances of Matters’s questioning were not tantamount to
formal arrest. The trial court properly
denied the motion to suppress.href="#_ftn8" name="_ftnref8" title="">[8]

2. No
necessity instruction was required.


Matters contends that the trial court erred in
failing to instruct the jury sua sponte on the elements of a necessity defense.

“[The]
court’s duty to instruct, sua sponte, on a particular defense arises ‘“ only if
it appears the defendant is relying on such a defense, or if there is
substantial evidence to support such a defense and the defense is not
inconsistent with defendant’s theory of the case.”’” (People
v. Maury
(2003) 30 Cal.4th 342, 424.)
Necessity is an affirmative defense (People
v. Kearns
(1997) 55 Cal.App.4th 1128, 1134–1135), on which the defendant bears
the initial burden of proof as to all elements.
(See People v. Salas (2006) 37
Cal.4th 967, 971.) “To justify an
instruction on the defense of necessity, there must be evidence sufficient to
establish that defendant violated the law (1) to prevent a significant evil,
(2) with no adequate alternative, (3) without creating a greater danger than
the one avoided, (4) with a good faith belief in the necessity, (5) with such
belief being objectively reasonable, and (6) under circumstances in which
he did not substantially contribute to the emergency. [Citations.]”
(People v. Pepper (1996) 41
Cal.App.4th 1029, 1035.) The significant
peril to be avoided must be imminent. (>People v. Galambos (2002) 104
Cal.App.4th 1147, 1162–1163.)

“By
definition, the necessity defense is founded upon public policy and provides a
justification distinct from the elements required to prove the crime. [Citation.]
The situation presented to the defendant must be of an emergency nature,
threatening physical harm, and lacking an alternative, legal course of
action. [Citation.] The defense involves a determination that the
harm or evil sought to be avoided by such conduct is greater than that sought
to be prevented by the law defining the offense charged. [Citation.]
Necessity does not negate any element of the crime, but represents a
public policy decision not to punish such an individual despite proof of the
crime. [Citations.] [¶] An
important factor of the necessity defense involves the balancing of the harm to
be avoided as opposed to the costs of the criminal conduct. [Citation.]
Unlike duress, the threatened harm is in the immediate future, which
contemplates the defendant having time to balance alternative courses of
conduct. [Citation.]” (People
v. Heath
(1989) 207 Cal.App.3d 892, 900–901.)

Matters
failed to establish an entitlement to a necessity instruction for at least five
reasons. First, he denied having engaged
in illegal conduct. Matters denied he
had tried to intimidate or dissuade Brown from testifying. Rather, he admitted calling Brown only in
order to relay Yun’s message. When
interviewed by Nakamura, Matters said he “basically was a mediator between [Yun
and Brown] in order to help his friend [Yun] out.” Similarly, at trial, Matters testified that he
relayed Yun’s message, telling Brown that, “Chino said you better switch up
your story and he better not get busted.”
Matters did not maintain that he was forced to commit an illegal act in
order to prevent a greater wrong; a call to relay a friend’s message is not an
illegal act. Accordingly, Matters never
claimed he violated the law out of necessity.
(See People v. Pepper,> supra, 41 Cal.App.4th at p. 1036.)

Second,
Matters had legal “alternative courses of conduct” available to enable him to
avoid any perceived harm of retaliation from Yun or the Sangra gang. (People
v. Heath
, supra, 207 Cal.App.3d
at p. 901; People v. Pepper, >supra, 41 Cal.App.4th at p. 1035.) “‘The necessity defense is very limited and
depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct if it is
justified by a need to avoid an imminent peril and there is no time to resort
to the legal authorities or such resort would be futile.’ [Citation.]”
(People v. Verlinde (2002) 100
Cal.App.4th 1146, 1164.) Here, Matters
could have: (1) explained Yun’s threats
and asked Brown to pretend that Matters did as Yun instructed, (2) lied to Yun
and told him he called Brown as instructed without actually making the call,
since there is no evidence that Yun followed up to ensure that Matters made the
call, or (3) called the police and reported Yun’s threat. Any one of these alternatives would have
prevented the perceived harm Matters claimed he was trying to prevent—that of
physical harm to himself or his family.

Third,
the evidence does not establish that Matters or his family was in imminent
danger of retribution. Virtually the
only evidence that Matters faced a “significant or imminent evil” came from his
self-serving testimony that Yun threatened him and that he was afraid of
Yun. The record contains no independent
evidence of Yun’s threats. There is no
indication that Matters told Nakamura or anyone that Yun threatened him, that
he was afraid of Yun, or that he was “afraid of what could happen to him if he
didn’t make that phone call [to Brown].”
But, even if Yun did threaten Matters, such threats would relate only to
the possibility of future retaliation, not an imminent evil. “As a matter of public policy, self-help by
lawbreaking and violence cannot be countenanced where the alleged danger is
merely speculative and the lawbreaker has made no attempt to enlist law
enforcement on his side.” (>People v. Miceli (2002) 104 Cal.App.4th
256, 268.) Thus, “‘[t]he defense of
necessity is inappropriate where it would encourage rather than deter
[lawbreaking]. [Lawbreaking] justified
in the name of preempting some future, necessarily speculative threat to life
is the greater, not the lesser evil.’” (>Ibid.)

Fourth,
Matters himself substantially contributed to the emergent nature of the
situation. According to Brito, Matters
made a call after he noticed D’Amato drawing on the ground at the park. Shortly thereafter, Yun and the other men
arrived and the attacks began. Thus,
Matters’ own actions initiated the confrontation between Yun, Brown, and
D’Amato that resulted in the subsequent charges that led to the predicament in
which Matters found himself.

Fifth
and finally, the defense of necessity was incompatible with the defense theory
of the case. Ruddell and Tom testified
that Brown and someone else attacked Yun who did not fight back. Zuniga and Cardenas testified that Brown and
D’Amato insulted and attacked Yun.
Matters testified that Yun did not participate in the assaults, and that
he never saw Yun with a box cutter, nor did he see Yun cut anyone. He agreed that Cardenas and Zuniga appeared
to have been the instigators of the attacks.
In sum, the defense theory was that Yun was a victim of or uninvolved in
the attacks. An instruction on necessity
would undermine that theory.
Accordingly, the court had no duty to instruct on the defense. (People
v. Maury
, supra,> 30 Cal.4th at p. 424; >People v. Celis (2006) (2006) 141
Cal.App.4th 466, 474–475 [no duty to instruct on a defense inconsistent with
defendant’s theory of the case].)

3. Matters
received an unauthorized sentence for dissuading a witness.


In count 4, Matters was charged with dissuading a
witness by force or threat in violation of section 136.1, subdivision
(c)(1). The information also alleged a
gang enhancement, under section 186.22, subdivision (b)(4). The jury acquitted Matters of the charged
offense, convicting him instead of the lesser offense of dissuading a witness
in violation of section 136.1, subdivision (a)(2), but found true the gang
enhancement under section 186.22, subdivision (b)(4). Matters was sentenced to seven years to life
for dissuading a witness under the alternative sentencing scheme for href="http://www.fearnotlaw.com/">gang-related offenses. (§ 186.22, subd. (b)(4)(C).) He contends that section 186.22, subdivision
(b)(4)(C) is inapplicable here because the offense did not involve a threat to
the witness. We agree.

Section 186.22, subdivision (b)(4) provides that “[a]ny
person who is convicted of a felony enumerated in this paragraph committed for
the benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony, be sentenced to
an indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of: [¶] . . . [¶] (C) Imprisonment in the state prison for
seven years, if the felony is . . . threats to victims and witnesses, as defined in Section 136.1.” (Italics added.)

Here, the trial court relied on section 186.22,
subdivision (b)(4)(C) to impose a term of seven years to life. Imposition of this sentence is permissible
only if Matters was convicted of “threats to victims and witnesses, as defined
in Section 136.1.” (Ibid.) Matters maintains he
was convicted only of attempting to dissuade a witness from testifying, not of
attempting to do so with threats. The
Attorney General asserts that the phrase “threats to victims and witnesses”
refers to section 136.1 generally, and that any conviction under this statute
permits imposition of the indeterminate sentence.

Section 136.1 defines certain offenses involving
persuading, preventing or attempting to persuade or prevent a witness or victim
from reporting a crime or testifying at trial.
Section 136.1, subdivision (a) prohibits a person from knowingly and
maliciously preventing or dissuading a witness or victim from attending or
testifying at trial, or attempting to do so.
Subdivision (b) prohibits preventing or dissuading a witness or victim
from (1) reporting a crime, (2) causing an accusatory pleading to be sought and
prosecuted, or (3) arresting or seeking the arrest of any person in connection
with the crime. Both subdivisions (a)
and (b) offenses are “wobblers,” i.e., permitting either a jail or prison
sentence. Subdivision (a) and (b) each
carves out subdivision (c) as an exception to its provisions.

Section 136.1, subdivision (c) necessarily elevates a
violation of either subdivision (a) or (b) into a felony if “(1)
. . . the act is accompanied by force or by an express or implied
threat of force or violence, upon a witness or victim or any third person or
the property of any victim, witness, or any third person.” A violation of section 136.1, subdivision (a)
or (b) is a lesser offense of subdivision (c), because subdivision (c) requires
a violation of subdivision (a) or (b) plus the use of force or threat. (People
v. Upsher
(2007) 155 Cal.App.4th 1311, 1321; People v. Brenner (1992) 5 Cal.App.4th 335, 340–341.) “[A] defendant who attempts to dissuade a
witness from testifying is guilty of either a misdemeanor or a felony, but
[when that] attempt is accompanied by an express or implied threat of force,
[the defendant] is guilty of a felony with an increased term of
imprisonment.” (People v. Lopez (2012)
208 Cal.App.4th 1049, 1064 (Lopez).)

“The
Sixth and Fourteenth Amendments to the United States Constitution preclude a
trial court from imposing a sentence above the statutory maximum based on a
fact, other than a prior conviction, not found to be true by a jury. (Cunningham
v. California
(2007) 549 U.S. 270, 274–275 [127 S.Ct. 856, L.Ed.2d
]; Blakely v. Washington
(2004) 542 U.S. 296, 303–304 [124 S.Ct. 2531, 159 L.Ed.2d 403]; >Apprendi v. New Jersey (2000) 530 U.S.
466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] [(Apprendi)].) Whether a
defendant used an express or implied threat of force when attempting to
dissuade a witness from testifying is a question of fact that subjects the
defendant to a greater sentence.
Accordingly, Apprendi and its
progeny require the jury find this fact true beyond a reasonable doubt.” (Lopez,
supra, 208 Cal.App.4th at p. 1064.)

Matters was charged with—but not convicted of—a violation
of section 136.1, subdivision (c). The
jury rejected the allegation that Matters used force or threat, or that he
threatened to use force or violence, in the commission of the offense.href="#_ftn9" name="_ftnref9" title="">[9] Instead,
Matters was convicted of the lesser offense of attempting to dissuade Brown
from testifying. (§ 136.1, subd.
(a)(2).) Section 186.22, subdivision
(b)(4)(C) permits imposition of a life sentence only when the underlying
offense is a felony involving “threats to victims and witnesses, as defined in
Section 136.1.” Absent a jury finding of
an express or implied threat of force pursuant to section 136.1, subdivision
(c), Matters’s conviction does not qualify for a life sentence under section
186.22, subdivision (b)(4)(C).

Relying on People
v. Neely
(2004) 124 Cal.App.4th 1258 (Neely),
the Attorney General argues that the reference to “section 136.1” in section
186.22, subdivision (b)(4)(C) is not limited to any particular subdivision of
that statute, and should be construed as including all the offenses set forth
in section 136.1. We disagree. In Neely,
the defendant argued that a prior conviction of violating section 136.1,
subdivision (a)(2) did not qualify as a serious felony under section 1192.7,
subdivision (c)(37). Section 1192.7,
subdivision (c)(37) defines “intimidation of victims or witnesses, in violation
of Section 136.1” as a serious felony.
Noting that no specific offense in section 136.1 mentions
“intimidation,” Neely concluded that
the phrase “intimidation of victims or witnesses” in section 1192.7,
subdivision (c)(37) merely described the entirety of section 136.1. (Neely,
at p. 1266.)

But section 186.22, subdivision (b)(4)(C) differs from
section 1192.7, subdivision (c)(37). We
conclude that the requirement of force or threat in section 136.1 is
specifically limited to violations of subdivision (c) which explicitly and
unambiguously creates a statutory distinction between offenses that require
force or threat and offenses that do not.
We recognize that at least one court has found that, in enacting section
186.22, subdivision (b)(4), the Legislature intended dramatically to increase
punishment for all gang-related offenses, including the “wobbler” of ordinary
attempted witness dissuasion. (>People v. Galvez (2011) 195 Cal.App.4th
1253, 1256.)href="#_ftn10"
name="_ftnref10" title="">[10] But we
cannot ignore the clear language of sections 186.22, subdivision (b)(4)(C) and
136.1.

In addition, as we observed above, any other
interpretation of these statutes raises problems under Apprendi, which requires
that “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum . . . be submitted to a jury, and proved beyond a
reasonable doubt.” (530 U.S. at p.
490.) The jury was asked if Matters
violated section 136.1, subdivision (c), and found he had not. In Apprendi’s
terms, subdivision (c) does not describe a sentencing factor applicable to a
violation of subdivision (a). Rather,
section 136.1, subdivision (c) describes a greater offense and provides for a
more severe punishment than is authorized for a conviction under subdivision
(a). The trial court relied on section
186.22, subdivision (b)(4)(C) when it imposed a term of seven years to life on
count 4. That sentence was permissible
only if Matters was convicted “of attempting to dissuade a witness by use of an
implied or express threat of force pursuant to section 136.1, subdivision
(c)(1).” (Lopez, supra, 208
Cal.App.4th at p. 1065.) Matters was not
convicted of violating subdivision (c)(1).
The court erred in imposing a sentence under section 186.22, subdivision
(b)(4)(C) because that section does not apply to the crime of which Matters was
convicted, and was based on a fact the jury did not find true.

4. Matters’s
ineffective assistance of counsel assertion fails.


Before
sentencing, Matters’s counsel requested that the court grant Matters probation,
or in the alternative, modify the judgment by striking the section 186.22 ,
subdivision (b)(4) allegation to avoid the necessity of imposing a seven year
to life term on count 4. In support of her
request, Matters’s attorney argued that numerous mitigating circumstances
warranted a lesser sentence.href="#_ftn11" name="_ftnref11" title="">[11] But
Matters’s attorney did not request that the section 136.1, subdivision (a)(2)
“wobbler” be reduced to a misdemeanor under section 17, subdivision (b). Stating its personal belief that a lesser
sentence was warranted for the count 4 charge, the trial court nevertheless
appropriately acknowledged it lacked the authority to strike the section
186.22, subdivision (b)(4) allegation.
Matters contends his defense attorney rendered ineffective assistance by
failing to ask the trial court to reduce the felony offense to a misdemeanor
pursuant to section 17, subdivision (b).
We disagree.

“Ineffective
assistance of counsel claims are rarely cognizable on appeal.” (People
v. Silvey
(1997) 58 Cal.App.4th 1320, 1329.) “We are wary of adjudicating claims casting
aspersions on counsel when counsel is not in a position to defend his
conduct. A claim of ineffective
assistance of counsel instead is more appropriately made in a habeas corpus
proceeding.” (People v. Hinds (2003) 108 Cal.App.4th 897, 902.) We will reverse a conviction on the ground of
inadequate representation only if the appellate record affirmatively discloses
that counsel had no tactical purpose for his or her allegedly improper
actions. (People v. Hart (1999) 20 Cal.4th 546, 589, fn. 8.) In all other cases, the conviction will be
affirmed and the defendant relegated to habeas corpus proceedings, in which
evidence may be taken to determine the basis, if any, for counsel’s conduct or
omission. (People v. Fosselman (1983) 33 Cal.3d 572, 582.)

“‘In
order to demonstrate ineffective assistance of counsel, a defendant must first
show counsel’s performance was “deficient” because his “representation fell
below an objective standard of reasonableness . . . under prevailing
professional norms.” [Citations.] Second, he must also show prejudice flowing
from counsel’s performance or lack thereof.
[Citation.] Prejudice is shown
when there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” [Citations.]’” (In re
Harris
(1993) 5 Cal.4th 813, 832–833.)
“‘It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. . . .’” (People
v. Ledesma
(1987) 43 Cal.3d 171, 217.)
If an insufficient showing either of deficient performance or prejudice
is made, the ineffective assistance claim fails. (People
v. Foster
(2003) 111 Cal.App.4th 379, 383.)
Appellant bears the burden to demonstrate the inadequacy of his trial
counsel by a preponderance of the evidence.
(Ledesma, at p. 218.)

Where
a claim of ineffective assistance is raised on appeal and where, as here, “‘the
record contains no explanation for the challenged behavior, an appellate court
will reject the claim of ineffective assistance “unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation . . . .”
[Citation]’” (>People v. Osband (1996) 13 Cal.4th 622,
700–701.) Although the record here
contains no explanation for his trial attorney’s challenged behavior, Matters
insists there can be no explanation for her failure to seek a reduction of the
offense to a misdemeanor. The Attorney
General, on the other hand, argues that the record sheds no light as to why
counsel failed to request that the witness intimidation conviction be reduced
to a misdemeanor, and that, in any case, counsel may reasonably have decided
not to do so “because it would have been futile given the trial court’s
statements and sentencing decisions.”

From this record we
cannot ascertain counsel’s motivation for not seeking the reduction, but we
also cannot definitively say there can be no satisfactory explanation. The trial court observed that, although
Matters was guilty only of witness intimidation, that crime is quite serious given
the rampant nature of gang violence in society, and gang use of fear and
intimidation to victimize communities.
Accordingly, the penalties associated with witness intimidation in
gang-related crimes are meant to be harsh in order to send a message and try to
“change the way that gangs are able to operate in the community and give the
communities a vehicle for fighting back.”
The court also observed that it was not inclined “to totally disregard
the jury’s true finding of the gang allegation,” and said that, if it had the
discretion to strike the section 186.22, subdivision (b)(4) “enhancement,” it
would instead impose the five-year punishment for serious felonies under
section 186.22, subdivision (b)(1)(B).

The record reflects the trial court found Matters’s offense quite serious. It does not follow that just because the
court did not believe a seven-year-to-life sentence was warranted, the court
would necessarily have been inclined to reduce the conviction to a
misdemeanor. Indeed, the court’s desire
to enhance Matters’s sentence by five years under section 186.22, subdivision
(b)(1) is a strong indication to the contrary, and that it would have found a
lesser sentence inappropriate. The
court’s statements and rationale regarding its sentencing decisions demonstrate
it would likely have been futile for Matters’s counsel to seek a reduction of
the conviction to a misdemeanor. Matters’s speculation that there was no
reasonable tactical or strategic reason for his attorney’s failure to request
the reduction does not establish ineffective assistance of counsel. (See People
v. Mattson
(1990) 50 Cal.3d 826, 876–877 [criminal appellant must
establish, based on facts and record on appeal, and not speculation, that trial
counsel rendered ineffective assistance].)
Matters has made an insufficient showing of deficient performance. His claim of ineffective assistance fails.

>5. The court was not required to give
accomplice instructions pertaining to Matters.

Yun
maintains the trial court erred by failing to instruct the jury sua sponte that
Matters was an accomplice whose testimony must be corroborated and viewed with
caution. We disagree.

Matters
testified that when Yun and the other men arrived at the park, Yun began
throwing up gang signs and said, “Sangra.”
The group approached Brown and D’Amato, and an exchange took place about
whether Brown was “from T.F.O.” When
some members of the group began beating D’Amato, Brown ran off, followed by
several men, including Yun. Matters
claimed he left the park when D’Amato was attacked and never saw the attack on
Brown. He said he never saw Yun with any
weapon, and never saw him cut anyone.
Matters claimed he took part in no attack and never acted as a
lookout. Matters testified that he was surprised when he got a call from
Yun instructing him to “switch up [his] story” about what had happened in the
park, and to make sure that Yun was “not . . . in it.” Matters admitted he felt threatened by Yun
and was afraid of Yun and the Sangra gang.

A defendant may not be
convicted “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 . . . .” (§
1111.) An accomplice is “one who is
subject to prosecution for the identical offense charged against the
defendant. (§ 1111.)” (People
v. Coffman and Marlow
(2004) 34 Cal.4th 1, 105.) The instruction at issue is CALCRIM No. 334
which cautions the jury to view accomplices with caution.href="#_ftn12" name="_ftnref12" title="">[12] Yun did
not request instructions on accomplice testimony. He claims now that the trial court had a sua
sponte duty to so instruct.

The court was not
required to instruct sua sponte on accomplice
testimony
because Matters was a testifying codefendant who denied his
guilt. As such, Yun had to request the
instruction. (People v. Avila (2006) 38 Cal.4th 491, 562 (Avila).) Moreover, such an
instruction would have been improper here because Matters’s testimony
exculpated Yun.

“Ordinarily,
the instructions on accomplice testimony need be given on the court’s own
motion only when the accomplice witness is called by the People [citations] or
when a defendant in testifying implicates his codefendant while confessing his
own guilt [citation]. In the latter
instance, the confession on the stand, for all practical purposes, relieves the
jury of the decision whether the declarant was an accomplice. When a defendant has confessed his guilt,
there is little need to worry about prejudicing him by giving an accomplice testimony
instruction for the protection of his codefendant. Here, [defendant] testified on her own
behalf, not as a prosecution witness, and denied her guilt. Thus, it was not incumbent to give the
accomplice testimony instructions.
[Citation.]” (>People v. Terry (1970) 2 Cal.3d 362, 399
(Terry).)

In
People v. Ramos (1982) 30 Cal.3d 553
(Ramos), the Court explained that,
when “a codefendant testifies that he was not involved in the crime—and thus
that he was not an accomplice—the trial court may properly conclude that the
giving of accomplice instructions might improperly prejudice the codefendant’s
case. Terry, supra, 2 Cal.3d
362 indicates that in such a situation the giving or withholding of such
instructions lie within the sound discretion of the trial court.” (Ramos,
at p. 582, reversed on other grounds by California
v. Ramos
(1983) 463 U.S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171].) In the past, the Supreme Court held that the
trial had a duty to instruct the jury sua sponte to view incriminating accomplice
testimony with distrust, regardless of which party calls the accomplice as a
witness. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) The Supreme Court has since clarified that
when the testifying accomplice is a codefendant, an accomplice instruction must
be given only “when requested by a defendant.”
(People v. Box (2000) 23
Cal.4th 1153, 1209, disapproved on other grounds by People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) The courts have “not disturbed the
long-standing rule that an accomplice instruction need not be given sua sponte
when the testifying accomplice is a codefendant.” (People
v. Smith
(2005) 135 Cal.App.4th 914, 928, overruled on other grounds in >People v. Garcia (2008) 168 Cal.App.4th
261, 291.)

Here,
Matters was a codefendant who testified on his own behalf and denied guilt of
any crime. His defense was that he was
not present for and did not participate in an attack on Brown. He also claimed he did not by force or
threat, attempt to dissuade Brown from testifying, and called Brown only
because he was afraid for himself and his family. To instruct the jury about accomplices in
respect to Matters’s testimony might have been prejudicial to his case. The trial court had no sua sponte duty to
give accomplice instructions. (Cf. >Ramos, supra, 30 Cal.3d at p. 582; Terry,> supra, 2 Cal.3d at pp. 398–399.)

Further,
we agree with the Attorney General that it would have been improper for the
trial court to give CALCRIM No. 334 here because Matters’s testimony exculpated
Yun. Matters denied that he or Yun took
part in the attacks on Brown or D’Amato.
He testified only that, at the park, Yun threw gang signs and said,
“Sangra.” Matters maintained that he
never saw Yun with a weapon or saw him cut anyone. He claimed that Cardenas and Zuniga
instigated the attacks.

Further,
even were we to find the court erred in failing to give an accomplice
instruction, that error would be harmless in this case. There is no reasonable probability the jury’s
verdict would have been any different had accomplice instructions been
given. A trial court’s failure to
instruct on the requirement of corroboration is harmless if the record reveals
sufficient evidence to corroborate the accomplice’s testimony. (People
v. Williams
(2008) 43 Cal.4th 584, 637–638.) “The corroborating evidence may be entirely
circumstantial. . . . The
corroborating evidence may be ‘“slight and entitled to little consideration standing
alone.”’ [Citations.] Only a portion of the accomplice’s testimony
need be corroborated, and the corroborative evidence need not establish every
element of the charged offense. . . . [Citation.] All that is required is that the evidence
‘“‘“connect the defendant with the commission of the crime in such a way as may
reasonably satisfy the jury that the [accomplice] is telling the
truth.”’”’” (People v. DeJesus (1995) 38 Cal.App.4th 1, 25; see also >Williams, supra, 43 Cal.4th at p. 638.)

Brown
testified that Yun threw gang signs at the park before the attacks. Brito testified that Yun did not participate
in the assault on D’Amato, and she did not see him with a weapon. Zuniga denied seeing anyone with a knife or
blade, and he and Cardenas each testified that only they were involved in a
fight with Brown and D’Amato. Cardenas
claimed Yun ran away and was not involved in th




Description Bobby Matters and John Lee Yun appeal their convictions for assault. Matters also appeals his conviction for dissuading a witness. The juries[1] found allegations to be true that (1) Yun’s offenses of assault by means likely to produce great bodily injury, and Matters’s offenses of simple assault and attempt to dissuade a witness were committed for the benefit of, in association with, or at the direction of a criminal street gang.
Matters contends that the trial court erred, and that reversal is required because the court, (1) improperly admitted his statement to the police obtained during a custodial interrogation; (2) failed to instruct sua sponte on the defense of necessity; (3) imposed an unauthorized sentence for his conviction for dissuading a witness; and (4) wrongly concluded it lacked the discretion to strike the Penal Code section 186.22, subdivision (b)(4) allegation.[2] Matters also contends that his trial counsel rendered ineffective assistance of counsel by failing to seek a reduction of his conviction for dissuading a witness to a misdemeanor offense. We will vacate Matters’s sentence for dissuading a witness and remand for resentencing.
Yun, in turn, maintains the trial court committed reversible by (1) failing sua sponte to give accomplice instructions; (2) admitting incendiary photographic evidence; (3) excluding evidence of a hung jury in the trial of defense witnesses. Yun also argues that cumulative errors require reversal and that an enhancement imposed under section 667.5, subdivision (b) must be stricken. We agree only with Yun’s final contention, an error the Attorney General concedes. In all other respects, we affirm.
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