P. v. Zingsheim

Filed 7/10/08 P. v. Zingsheim CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed in part, reversed in part, and remanded with directions.

Thomas T. Zingsheim, Robert J. Maxwell, and Michael J. Murphy, along with Tuesdae Ditmars and Evan Baltsas, were charged with various crimes stemming out of two residential burglaries. After Ditmars and Baltsas pled guilty, a bifurcated jury trial proceeded on a consolidated amended information as to Zingsheim, Maxwell and Murphy. The jury found the three defendants guilty of the following offenses committed at the residence of Ryan Guerrero on January 29, 2005: count 1, first degree robbery (Pen. Code,^[1] 211, 212.5, subd. (a)); count 2, assault with a semiautomatic firearm, a handgun ( 245, subd. (b)); count 3, assault with a semiautomatic firearm, a rifle ( 245, subd. (b)); count 4, residential burglary ( 459, 460); count 5, false imprisonment by violence or menace ( 236, 237, subd. (a)); count 6, grand theft of personal property ( 487, subd. (a)); count 7, intimidating a witness by malicious use of force or violence ( 136.1, subd. (c)(1)); and counts 9, 10, 11 and 12, tampering with electric, telephone and cable television lines ( 591). Maxwell alone was found guilty of count 8 for tampering with an electrical line connected to an alarm system.

The jury further found true allegations that Murphy and Maxwell each had personally used a firearm in the commission of counts 1 through 6 ( 12022.5, subd. (a)); that Maxwell and Murphy also had personally used a firearm within the meaning of section 12022.53, subdivision (b) in the commission of the count 1 robbery; that Murphy had personally used a firearm in the commission of the count 7 intimidation of a witness ( 12022.5, subd. (a)); that Zingsheim and Maxwell were vicariously armed with a firearm for count 7 ( 12022, subd. (a)(1)); that Zingsheim was further vicariously armed with a firearm for counts 1, 4, 5 and 6 ( 12022, subd. (a)(1)); and that all three defendants committed the burglary while another person other than an accomplice was present in the residence.

The jury additionally found Zingsheim guilty of the December 2004 burglary of John and Dani Leombrone's residence ( 259, 260; count 13), and found true that he had taken, damaged and destroyed property in excess of $50,000 during that crime. ( 12022.6, subd. (a)(1).)

At a bifurcated court proceeding, after Maxwell admitted he had previously suffered a serious felony conviction, which qualified as a strike under the Three Strikes law, the court found true allegations under section 667, subdivision (a)(1) and the three strikes law.^[2] ( 667, subds. (b)-(i); 1170.12) After granting Maxwell's motion to dismiss his strike for sentencing purposes, the court sentenced Maxwell to a total prison term of 21 years, which included imposition of the upper term for the count 1 residential robbery. The court then sentenced Zingsheim to a total prison term of 10 years, eight months and Murphy to a total of 16 years in prison. Each sentence also included the imposition of an upper term for count 1.

With regard to the Leombrone burglary, the court ordered Zingsheim to pay, jointly and severally with Ditmars and Baltsas, victim restitution of $58,000. As for the Guerrero residence crimes, the court imposed a general order for victim restitution to be paid jointly and severally between Maxwell, Murphy, Zingsheim and Ditmars in an amount to be determined at a later date, setting the matter for hearing on September 29, 2006. At the Guerrero restitution hearing, the court ordered victim restitution in the stipulated amount of $6,103.33 in medical expenses to be paid jointly and severally by Murphy, Maxwell and Zingsheim. The court also issued a general order for additional victim restitution to Guerrero in the event the prosecutor was able to present reliable information in support of such restitution at a future hearing.

Each defendant has separately appealed and has joined in the arguments of each other to the extent such is applicable and beneficial. (Cal. Rules of Ct., rule 8.200(a)(5).) Essentially, the contentions before this court are (1) whether the trial court had a sua sponte duty to give a cautionary instruction regarding witnesses testifying pursuant to a plea agreement; (2) whether six claims of prosecutorial error were forfeited, had any merit, or constituted cumulative error; (3) whether the prosecutor prejudicially violated Maxwell's constitutional rights under Griffin v. California (1965) 380 U.S. 609 (Griffin) and Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) by cross-examining him about his not testifying at the preliminary hearing and about his refusal to give a postarrest statement; (4) whether the trial court abused its discretion or violated California Rules of Court regarding uniformity of sentencing when it imposed a lengthier prison term for Zingsheim than it imposed for Ditmars who pled guilty instead of going to trial; (5) whether the trial court violated each defendant's constitutional rights as expressed in Cunningham v. California (2007) 549 U.S. 270 [126 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) when it imposed the upper term sentence for the count 1 residential robbery; (6) whether the victim restitution award to Guerrero also violated the respective defendant's constitutional rights as expressed in Cunningham, Blakely and Apprendi; (7) whether the omission of Ditmars from the Guerrero victim restitution award entitles the defendants to relief; and (8) whether Murphy's abstract of judgment should be corrected to reflect the sentence that was orally imposed by the court, i.e., concurrent low term sentences for counts 2 and 3.

Although conceding that Murphy's abstract of judgment should be modified and that the Guerrero restitution order for medical bills inadvertently omitted Ditmars from the order, the People submit that no other contention has merit and that the restitution matter should be remanded to the trial court for purposes of holding another hearing to resolve any and all issues related to victim restitution that must be paid to Guerrero.

We shall affirm each of the defendant's convictions and reverse the sentences imposed, including the Guerrero victim restitution orders imposed, and remand the matter with directions for resentencing and a new restitution hearing for determining victim restitution to Guerrero consistent with the views expressed in this opinion.

FACTUAL BACKGROUND

Because the defendants do not challenge the sufficiency of the evidence and many of the facts pertinent to each issue on appeal are recited in the discussion, we summarize the facts presented at trial regarding the Guerrero and Leombrone crimes involved in this case.

Essentially, on January 29, 2005, after Guerrero was robbed and beaten by defendants in his summer home at the Coronado Cays in Coronado, he went to a neighbor's house and called 911, giving the dispatcher as much information about the home invasion and the assailants as Guerrero could recall. The responding Coronado police officer first contacted Guerrero at the neighbor's before going over to Guerrero's house, where an initial search for any suspects revealed a bullet hole in a window in the master bedroom, drawers pulled out and clothes strewn all over the house. The officer then obtained some additional information from Guerrero and relayed it over the police radio as well as calling for an ambulance because Guerrero was bleeding from his hand and back of his head.

Guerrero subsequently provided the officer more information, including some of the suspects' names, "Tuesdae Mars" (Ditmars) and "Mike" (Murphy), the fact that two males had guns, one a machine gun and the other a handgun (Murphy had the handgun), and that the suspects had been in the house, drinking beer, smoking cigarettes and eating pizza.

While Guerrero was transported to a hospital emergency room where he received six staples for a cut on the top of his head and then to the Coronado police station where he was interviewed, another Coronado police officer, who had learned that some suspects were in an older model gray Volvo sedan, conducted a "hot stop" of a Volvo fitting that description near Glorietta Bay and Tenth Street, ordering the male driver, identified as Zingsheim, and the passenger, identified as Ditmars, out of the car. The back seat of the Volvo was piled high with property, including plasma televisions, a framed poster, a fishing pole, liquor bottles and figurines. Zingsheim and Ditmars were arrested and transported to the Coronado police station.

There, Coronado Police Detective Joe Oliver, who was in charge of the investigation, interviewed Ditmars about the home invasion robbery at Guerrero's residence. Ditmars basically told Oliver that she had been "hanging out," drinking, and watching television at Guerrero's home as he worked on it because she was missing her boyfriend, Baltsas. The next morning she woke up in bed with Guerrero and they were both naked. Although she recalled doing something with her shirt and thought she had flashed Guerrero, she could not remember flirting or making out with him. She got up, dressed and called Baltsas to come pick her up.

Right before Baltsas arrived with Zingsheim, Ditmars smoked some methamphetamine (meth). After she told Baltsas what had happened, she saw Zingsheim enter Guerrero's house with socks on his hands. As she put her things in the Volvo, she heard the engine of Guerrero's Lincoln Navigator in the garage start up. She then saw Baltsas drive the Navigator out of the garage with Zingsheim, who got out of the Navigator and into the Volvo with her. As they drove away from Guerrero's, Zingsheim realized that he had left one of his bags there, so he turned around with Ditmars and returned to the house to retrieve the bag while Baltsas continued driving away in the Navigator without them. When they left Guerrero's house again, rather than try to contact Baltsas, Ditmars had Zingsheim drive to Maxwell's house in Imperial Beach because he had previously had a fight with Guerrero over some incident involving her old boyfriend Jesse Valdez through whom she had met Maxwell. When Ditmars told Zingsheim during the drive about waking up next to Guerrero, Zingsheim said something to the effect of, "this fool needs to get rolled up hard."

After arriving at Maxwell's place, Ditmars told him and Murphy who was there about what had happened. The gist of their conversation was that Guerrero was "fucking" with Ditmars, Maxwell was going to go back to Guerrero's house because he had not "beat his ass hard enough the first time," and the four agreed that they would go to the house to take Guerrero's property that Ditmars had talked about and that Guerrero would "get his ass beat." Ditmars rode with Maxwell, who had a long gun underneath his jacket, in his Toyota 4Runner, while Murphy rode with Zingsheim in the Volvo. Maxwell specifically asked Ditmars whether there was anything in particular that she wanted from Guerrero's home.

When Ditmars and the others arrived at the residence, Maxwell cut the wires outside the house and pulled out telephone lines inside before Ditmars went upstairs and woke up Guerrero as she grabbed his cellular phone next to him. Maxwell and Murphy were in the bedroom with guns pointed at Guerrero when Ditmars left the room because she did not want to be there when they beat up Guerrero. She joined Zingsheim downstairs as he was pillaging through things, and at some point she heard a gun shot and the sound of a window breaking. Murphy called her back upstairs to help find an empty shell casing, which she found and gave to him after Zingsheim, who had followed her, confirmed it was really a shell. At that time, Murphy was in the upstairs living room holding a gun as Guerrero sat nearby with blood on his hands. Murphy indicated to Ditmars that Guerrero had told him that she "came on to him" and that they "did it" two times before he went and got a pizza and once more after he returned.

Ditmars told Oliver that Zingsheim removed two televisions from the house, Maxwell was both upstairs and downstairs "looking through drawers and stuff," and that Maxwell had told her to unplug Guerrero's stereo so he could "grab it." Ditmars also told Oliver and a female detective that she did not feel she had been raped or assaulted by Guerrero, that she felt safe with him, and that she felt what had happened between her and Guerrero had been consensual.

During the course of her interview, Ditmars also informed Oliver where Baltsas was living in the downtown San Diego area, and told him that she had gone with Baltsas and Zingsheim one time to an apartment downtown where they had stolen various items, including a Van Gogh picture.

As part of the investigation, on January 30, 2005, Oliver placed Maxwell's house under surveillance. At some point that day, Maxwell's Toyota 4Runner was seen leaving the house and was found about five minutes later parked and unoccupied a short distance away. The next day, a San Diego police detective who was investigating the unsolved December 2004 burglary at the Leombrone residence, learned about the information Ditmars had given Oliver regarding the suspects in that burglary and went with other law enforcement officers to the hotel where Baltsas was staying. Guerrero's Navigator was found in a parking lot nearby and in executing a search warrant obtained for a storage unit that was rented by Baltsas, officers found property taken from the Leombrone residence. The detective interviewed Zingsheim on February 7, 2005, learning from him that Baltsas had borrowed the Volvo used in the Guerrero crimes from a friend, that Baltsas had taken a Honda Accord from the Leombrone residence before going there again with Ditmars and Zingsheim to take additional property, including a Van Gogh painting. Zingsheim told the detective he also visited the Leombrone residence with Baltsas another time and they took a television from the home. At some point, the detective also recovered additional property from the Leombrone burglary at the friend's house.

Meanwhile, on February 4, 2005, Maxwell was apprehended in El Cajon by the fugitive task force and turned over to the Coronado police. During the drive to the Coronado police station, Maxwell commented, "You don't know the half of it. That's what happens when you help a girlfriend help a boyfriend." Then, on April 4, 2005, Murphy was apprehended by the fugitive task force and brought to the Coronado police station where Oliver interviewed him.

During the interview, Murphy said he was with Maxwell when Ditmars arrived and told them that Guerrero had gotten her intoxicated and had raped her. Murphy had agreed to go to Guerrero's house, but only to scare him even though Ditmars wanted to take more property from his house. Murphy denied taking anything from Guerrero, but admitted he had kicked and punched Guerrero as well as hitting him with the butt of his gun that accidently fired, shooting a hole in the window. Murphy said he had Guerrero put on his pajama bottoms before taking him downstairs to the living room where he talked with him after putting away his gun, which was a nine millimeter Norinco that belonged to his grandfather. Murphy said he had tossed the gun in the ocean after the incident because he was scared. He said he knew he had "screwed up."

On June 14, 2005, Oliver and another detective went to the home of one of Murphy's neighbors after they received information that the gun used by Murphy might be found there. When the detectives informed the neighbor why they were there, he indicated he knew about the home invasion robbery at Guerrero's residence and that he had the gun. Murphy had dropped off the gun in a backpack and the neighbor had placed it in his garage for safekeeping.

As noted earlier, Ditmars and Baltsas pled guilty to various charges before the trial, at which the jury was presented with the above evidence. In addition, with regard to the Leombrone residential burglary, the jury heard testimony from John Leombrone about discovering his Honda Accord and many items of property, including a Van Gogh print and several televisions, missing from his home upon returning to San Diego from a trip to New York with his wife during the December 2004 holiday season. The jury also heard stipulations read about the property and its value taken from the Leombrones that was located later at various places.

With regard to the home invasion robbery at the Guerrero residence, the jury further heard testimony from, among other people, Guerrero, an acquaintance of Maxwell's, and Ditmars, who was declared a hostile witness. After noting that he visited his family's Coronado home about once a month from Arizona and helped his father with the family stucco and plastering company, Guerrero testified about his relationship with the various defendants. He had met Ditmars about three months before the January 29, 2005 incident through her former boyfriend Valdez who had worked for the family company. Guerrero had also met Murphy through Valdez a month before the incident and had met Maxwell once before that time when Valdez brought him to Guerrero's house. At that time, Guerrero and Maxwell had a fight in the garage after Maxwell punched him for purportedly upsetting Valdez by spending time with Ditmars, whom Guerrero said was just a friend. Guerrero had met Zingsheim at a party and then again at the home of a mutual friend before January 29, 2005.

Guerrero said he was in town the week before the incident with a construction crew from Arizona working on the Coronado house, repairing the roof and two exterior walls. Two days before the incident, Ditmars began staying at the house with him, sleeping in a downstairs bedroom. After the construction crew left San Diego on January 28, 2005, Guerrero continued to work on the house while Ditmars drank alcoholic beverages and wandered around. After completing work that day, Guerrero went inside and started talking to her and they ended up kissing. Ditmars then lifted up her shirt and gave Guerrero a flash, showing him her breasts. After flashing him again, they went to the master bedroom upstairs and had sex. Afterwards, Guerrero went out to get a pizza and some cigarettes for Ditmars. When he returned, he set up a plasma television in the master bedroom and turned on the fireplace. He and Ditmars had sex again before they fell asleep.

Guerrero testified that when he woke up on January 29, 2005, Murphy and Maxwell were standing there with guns; Maxwell with an assault rifle and Murphy with a handgun. When he jumped out of bed and confronted them, Maxwell rushed toward him while Murphy jumped on the bed and tried to kick him in the head. As he grabbed the barrel of Maxwell's rifle to push it away, Maxwell tried to hit him with the butt of the rifle. The two men continued to hit and kick him until Murphy hit him on the head with the handgun and a bullet discharged, hitting the window and shattering the glass. Murphy and Maxwell then backed away. When Guerrero asked them why they were there, they replied that Guerrero was going to learn his lesson for "doing more with a girl than she wants to do" and that he "just shouldn't do that to a female." Guerrero said he tried to reason with the men, telling them they were "a little old to be just taking some girl's word that she got raped." As Maxwell left the room commenting that "[s]he better not have been fucking lying to us," Ditmars entered the room and helped Murphy look for the bullet casing.

When Guerrero then told Ditmars, "This is because of you, you fucking bitch," Ditmars looked at him, saying, "All I know, I passed out, and when I woke up, I felt weird, and I was naked." Murphy then let Guerrero put on a pair of pajama bottoms and ordered him at gunpoint to walk downstairs to the living room/kitchen area where he directed him to sit on the couch. As Murphy sat at the bar in the same area watching Guerrero, Murphy ate some pizza and drank a few bottles of beer. During this time, Guerrero heard Murphy, Maxwell and Zingsheim talk about disabling the home alarm and telephone systems and saw Zingsheim, who was wearing long socks over his hands and arms, removing property and telephones from the house. He also saw Ditmars carrying items out of the house.

As Ditmars, Zingsheim, Murphy and Maxwell were leaving, Murphy warned Guerrero not to call the police, telling him something like, "If you call the cops, they may catch all of us, but they are not going to catch one, and the one they don't catch is going to kill your ass, so don't call the fucking cops." When they left the house, Guerrero ran downstairs, opened the door, and saw Murphy and Maxwell walking out to the street while Ditmars and Zingsheim got into a gray Volvo that was parked in the garage and drove off. Guerrero also noticed that his Navigator was missing from the garage. After the four were out of sight, Guerrero hit a button on the house alarm system, but it did not sound off. As soon as he saw Murphy and Maxwell get into what he believed was a Toyota Land Cruiser parked out on the cul-de-sac, he went to his neighbor's house to call the police.

Guerrero further testified about the numerous items taken from his house that were recovered in the Navigator and the Volvo, i.e., a camera, a toolbox, telephone jack components, drill sets, golf clubs, a gasoline can, an iron pipe, speakers, bottles of liquor, a battery for electric tools, a Lego set, flasks for liquor, shot glasses, electronics, a box for surround sound, jars of paint pellets for a paint ball gun, a fish finder/radar, DVD's, a fishing pole, remote controls for electronics, cordless telephones, Xbox video games, pillows, two plasma televisions, framed and autographed photographs of two sports figures (Oscar de la Hoya and Sugar Shane Mosely), a transducer for a fish finder/radar, and a drill. Guerrero also noted that two bicycles were missing from his garage and that he last saw his cellular phone clipped to Ditmars's skirt.

An acquaintance of Maxwell's testified in the prosecution case that when he stopped by Maxwell's house on the morning of January 29, 2005 to check on whether his radio control car that Maxwell was repairing for him was done, Maxwell told him the car was done, but asked if the car could be picked up later because he had to take care of some business, explaining that a woman had been raped and he was going to "kick his ass."

When Ditmars testified at trial, she apprised the jury that she was in custody and admitted that she had been convicted of two burglaries at the Guerrero and Leombrone residences respectively and that she had been "vicariously armed with a firearm" during the Guerrero robbery/burglary. Although she conceded she had gone to the Leombrones' apartment with Baltsas and Zingsheim, and that she and Baltsas were stealing items, she said she did not see Zingsheim taking things because she was only paying attention to what she was doing. She initially did not remember telling anyone that Zingsheim had taken property from that home, but later said that all of them took CD's, purses, clothes and household items from the Leombrone apartment before they left.

Ditmars's trial testimony concerning the events leading up to the Guerrero home invasion robbery was similar to her postarrest statements to Oliver. She had been staying at Guerrero's home several days before the incident, had been drinking whiskey and smoking meth with Guerrero the day before, and then woke up in bed with him and neither was wearing any clothes. After she got up, leaving Guerrero to sleep, she dressed, ate some pizza , drank a soda and called Baltsas to pick her up because she missed him, felt she had been taken advantage of and wanted to leave.

Ditmars's testimony about the subsequent events after Baltsas arrived in the Volvo with Zingsheim to pick her up from Guerrero's house differed slightly from her interview statements.^[3] When they arrived, they parked down the street and walked into the garage where she first greeted them and then found them putting items in Guerrero's Navigator when she returned with her belongings to put them in the Volvo. When she could not start the Volvo to leave, Zingsheim, who had gotten in the Navigator with Baltsas, got out and started the Volvo. Ditmars became angry when Baltsas drove off in the Navigator without them, feeling he had abandoned her and Zingsheim. Driving away from Guerrero's home with Zingsheim, Ditmars talked with him about "jacking," i.e., robbing, Guerrero to get even with him for taking advantage of her intoxication.

When Ditmars and Zingsheim arrived at Maxwell's, whom she remembered had previously fought with Guerrero and might come to her rescue, Ditmars told him and Murphy what had happened and that she was "going back and rolling on" Guerrero. Ditmars saw two guns in the garage, said the four had some crystal meth and talked about stealing items from Guerrero, and that Maxwell talked about going to "kick his ass." On the way to Guerrero's, Ditmars rode with Maxwell, telling him the things she wanted to take from the residence.

After they arrived, Ditmars went to Guerrero's bedroom and took his cellular phone so he could not use it and as she left, Maxwell and Murphy entered the bedroom with guns.^[4] Downstairs, Ditmars unplugged some stereo equipment and heard a noise like a window breaking and glass falling. Although she initially denied hearing a gunshot or telling police that she had, she later said she did hear the gunshot. She conceded that she picked up a shell casing in the bedroom from the floor at one point. She then saw the others taking property and Guerrero sitting on a couch in the living room area unable to move freely with Murphy in the kitchen area watching him. At that time there was a gun on a kitchen counter, but Murphy did not have a gun.

Ditmars admitted she went through the kitchen area, closets and drawers of all the bedrooms, removed a television off the master bedroom wall, and carried out of the house a stereo, clothes, bottles of wine and a framed poster. She also saw the other defendants carry out some of the items that ended up in the Volvo in which she was later stopped. She denied, however, pulling out any of the phone lines or knowing who had cut them or the alarm system.

The Defense Evidence

1. Maxwell's Defense

In addition to testifying in his own defense, Maxwell presented the testimony of a friend and neighbor who basically said that Maxwell had shown his honesty in a prior incident when he returned to the neighbor "a chop saw" he had bought from an unidentified party after discovering it had been stolen from the neighbor's garage. The neighbor also testified that on the day of the Guerrero home invasion robbery he was supposed to lend some tools to Maxwell for a landscaping job, but when he saw Maxwell early that morning, Maxwell told him that although he still needed the tools he first had to go to Coronado. Several hours later, Maxwell backed his Toyota 4Runner into the neighbor's driveway with a passenger and opened the rear hatch so the neighbor could put the tools into the back of the vehicle. At that time there was nothing in the back of Maxwell's vehicle. The neighbor admitted on cross-examination that he had three prior felony convictions and that he did not know whether anyone had been in Maxwell's vehicle earlier that morning.

When Maxwell testified, he denied he owned an assault weapon but said he had previously tried to help a friend sell a semiautomatic rifle to first Valdez and then to Guerrero, describing the rifle to both over the telephone. He also noted that his mother had sold all the weapons that had been in the house because he had been in trouble with the law in 1994 and told by the court to sell them. Maxwell conceded he had a fight previously with Guerrero before January 29, 2005, but said that it had been Guerrero who had swung at him first when he had gone with Valdez to pick up Ditmars from Guerrero's house.

As for the events of January 29, 2005, Maxwell had gone early in the morning with Murphy to hit golf balls before returning to Maxwell's house where Ditmars stopped by with Zingsheim, crying and telling them that she had been raped by Guerrero, and wanted to get her property from his house. Maxwell convinced her she needed to go to the hospital. Ditmars wanted Maxwell with her because she was afraid Guerrero would not let her leave and asked Maxwell for a ride back to Guerrero's house. Maxwell denied that that there was any talk with Ditmars about stealing property from Guerrero or about "kick[ing] his ass," or that there was an agreement with Zingsheim and Murphy to rob Guerrero with weapons. Maxwell denied he took any weapons other than his golf club in the vehicle he drove to Guerrero's.

When Maxwell arrived at Guerrero's house, he dropped off Ditmars and then parked down the street before entering the house with her and Murphy, putting his car keys on the bar and going up to the bedroom where Guerrero was sleeping. When Ditmars woke up Guerrero, telling him she was going to the hospital to be checked because she had awakened nude next to him and felt violated, he became upset and lunged at her. Maxwell intervened, pushing Guerrero back. Murphy began arguing with Guerrero when Maxwell did not want to hear Guerrero's explanations. As Maxwell left the room to go downstairs, he saw that everything in the other bedrooms was askew and Ditmars carrying items that did not belong to her. Before leaving the house, Maxwell told Ditmars he did not know what was "going on" and did not want any part of it. He came back inside the house when he discovered he did not have his car keys. After grabbing them off the bar, Maxwell told Murphy as they walked to his car that "[t]his bitch got us into a bunch of fucking mess now."

On the way back to his house, Maxwell stopped at his neighbor's house to pick up some tools before proceeding to Murphy's house to work on some landscaping there. Later, when he returned to his own house, Maxwell heard the police there and decided to stay at a friend's house and contact a lawyer who was a family friend. Maxwell was subsequently apprehended before he could turn himself in to the police.

Maxwell denied that he had cut the alarm, phone or cable wires at Guerrero's house, or that he had stolen any of Guerrero's property. He also denied hearing any gunshot while he was at Guerrero's residence or seeing Murphy at the residence with a gun. Maxwell admitted he had previously been convicted in 2003 for possession of stolen property and in 1995 for a felony crime of violence that was "reduced to a misdemeanor in 199[9]."

2. Murphy's Defense

In Murphy's defense, his counsel read into the record a portion of Guerrero's preliminary hearing testimony to stress that Guerrero had not seen Murphy take any property from his house, or cut any telephone or alarm wires, and did not hear him tell anyone else to do so. Counsel also read a portion of Murphy's postarrest interview with Oliver, where Murphy stated he had put his gun away in his pants pocket when he brought Guerrero downstairs so Guerrero could have a drink during the incident.

To impeach Ditmars, Murphy's counsel also called Ditmars's attorney to the stand to testify that she had given Ditmars a copy of her postarrest interview and had reviewed it with her several times, along with showing her the DVD of the interview, while she was in county jail.

3. Zingsheim's Defense

Zingsheim presented testimony of an expert in his defense who talked about the effects of meth on a person's memory. The expert specifically testified that a meth user's memory could be based on distorted information and that it was possible for a person who used meth in the morning after having an alcoholic blackout the night before to become delusional about what had happened the night before.

Rebuttal

In rebuttal, Oliver testified that in attempting to locate Murphy and Maxwell after the incident, he drove by Murphy's house once or twice before January 31, 2005, and also served a search warrant on the house the morning of January 31, 2005, and did not notice any landscaping work being done at the house. Another detective, who was in charge of searching the back yard of Murphy's home, however, testified that it appeared that some landscaping was being done in the back yard even though it was "full of stuff everywhere," containing at least a dozen bicycles, yard equipment, tools and furniture.

DISCUSSION

I

NO SUA SPONTE DUTY FOR CAUTIONARY INSTRUCTION

During jury instructions discussions, when the trial court went over the list of facts under CALCRIM No. 226 for impermissible bias or prejudice of witnesses and asked whether anything else needed to be added, no party indicated that any other cautionary language needed to be inserted. After further discussion, however, all parties agreed that language regarding any promise of immunity or leniency in exchange for testimony should be deleted from the instruction as no such promises had been made to Ditmars or any other witness. The court also indicated it would include the factor of, " 'What is the witness's character for truthfulness?' " in the instructions, but would delete the statement, " 'If the evidence establishes that a witness's character for truthfulness has not been discussed among people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good.' " Finally, the court noted it would include the language stating, " 'If you do not believe a witness's testimony that he or she no longer remembers something, [that testimony is inconsistent with the witness's earlier statement on that subject.]' " and " 'If you decide a witness deliberately lied about something significant [in this case, you should consider not believing anything that witness says, or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]' "

Without objection, the court summarized the changes to CALCRIM No. 226, as follows: "There was a blank there about other impermissible bias, that was deleted as not appropriate. And also the line about witness being promised immunity, that was deleted, as well as the bracket, '[i]f evidence establishes that a witness' character for truthfulness has not been discussed,' that was deleted."

The court then discussed what modifications needed to be made to CALCRIM No. 335 regarding accomplice testimony where there is no dispute whether the witness is an accomplice, which applied solely to Ditmars. All parties agreed that the instruction should begin by stating, " 'If the crimes were committed.' " The court noted there were no objections to the giving of CALCRIM No. 335 with regard to Ditmars as to counts 1 through 13.

The court subsequently instructed the jury under CALCRIM Nos. 226^[5]and 335^[6]consistent with the modifications at the jury instruction conference.

On appeal, Murphy, joined by the other defendants, complain that the pattern jury instructions in California "suffer from a vacuum" because they do not contain a special cautionary instruction regarding the testimony of a witness who testifies as part of a negotiated plea agreement and that the trial court thus prejudicially erred in failing to sua sponte instruct the jury that Ditmars's testimony had to be viewed with greater caution because she pled guilty and her plea agreement had to be considered in the evaluation of her testimony. Defendants assert that neither a request for such cautionary instruction nor an objection was required to preserve the issue for appeal because it is similar in nature to accomplice instructions. Defendants additionally claim the court's failure to give such cautionary instruction violated their federal constitutional rights to a jury trial and to due process. We find the defendants' arguments to be without merit.

First, the premise upon which the defendants base these claims is faulty as Ditmars's plea agreement did not require her to testify against any defendant. She testified on direct and under cross-examination to the fact that she had made no deals with the prosecution regarding her testimony, and the parties agreed during the jury instructions conference that neither Ditmars or anyone else had been given the promise of immunity or leniency for their testimony at trial. There is simply no evidence in this record to support the defendants' speculation that Ditmars testified as a condition of her guilty plea.

Second, the defendants have cited no binding authority, and we are not aware of any, that supports their claim that the trial court has a sua sponte duty to give a cautionary instruction regarding witnesses testifying pursuant to a plea agreement. In the analogous situation of where a defendant has testified under an agreement granting immunity, our Supreme Court has consistently held there was no sua sponte duty to instruct about the relationship between immunity and credibility. (People v. Freeman (1994) 8 Cal.4th 450, 508; People v. Daniels (1991) 52 Cal.3d 815, 867, fn. 20; People v. Hunter (1989) 49 Cal.3d 957, 977-978 (Hunter); People v. Leach (1985) 41 Cal.3d 92, 106.) The defendants' reliance on Banks v. Dretke (2004) 540 U.S. 668, 701-702 and On Lee v. United States (1952) 343 U.S. 747, 757 is misplaced because neither case imposed a sua sponte obligation on a trial court to give a cautionary instruction regarding witnesses testifying under a plea agreement.

Moreover, even in cases where a request for a separate cautionary instruction has been rejected regarding the credibility of a person granted immunity or who was given benefits as an informant, the courts have generally found no error when such fact could be considered under a modified general witness credibility standard jury instruction or, if relevant, under the general instruction coupled with an accomplice instruction. (See People v. Garceau (1993) 6 Cal.4th 140, 190-191; Hunter, supra, 49 Cal.3d at pp. 976-978; People v. Hampton (1999) 73 Cal.App.4th 710, 721-724; People v. Echevarria (1992) 11 Cal.App.4th 444, 449-451.) However, none of those cases remotely suggested or held that a trial court has a duty to either modify the general instructions on credibility of witnesses or to give a special additional instruction on the matter without a defense request.

Third, CALCRIM No. 226 and CALCRIM No. 335 adequately conveyed the point that Ditmars's testimony and statements must be considered with care and caution because she was an accomplice and her testimony might be colored by her own self-interest. Although the defendants claim that CALCRIM No. 335 was "no substitute for fuller instruction based on Ditmars's status as [a] criminal informant benefitting from a plea," as noted above, there was no evidence in the record that Ditmars was an "informant benefitting from a plea" or that there was a request for a "fuller" instruction regarding her testimony and statements due to her plea agreement. If there had been such an objection to the adequacy of the instructions to cover her plea agreement, the court could have then considered whether to add that to the list of circumstances the jury should consider when viewing the credibility of a witness under CALCRIM No. 226 or whether to give an additional pinpoint instruction regarding the relationship between Ditmars's plea agreement and her credibility. Not having done so, the defendants have technically forfeited this issue on appeal. (People v. Guiuan (1998) 18 Cal.4th 558, 570.)

In sum, the trial court had no sua sponte duty to give a cautionary instruction regarding a witness testifying pursuant to a plea agreement. Nor have the defendants shown any due process violation in this regard.

II

CLAIMS OF PROSECUTORIAL ERROR

Maxwell, joined by the other defendants, next contends the prosecutor specifically committed six acts of misconduct, which individually and cumulatively denied them a fair trial. The People counter that the claims of prosecutorial misconduct, also referred to as "prosecutorial error" (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill)), have been forfeited by the failure of the defendants to object to the various alleged acts of misconduct on that same ground or to request that the jury be admonished to disregard the alleged respective impropriety. After setting forth the pertinent law, we address each of the defendants' assertions of prosecutorial misconduct.

A. Applicable Legal Principles

"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44.)

"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447.) Therefore, to avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553.) However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for an admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1201 (Cole).)

Specifically, a prosecutor commits misconduct when he or she intentionally elicits inadmissible evidence or testimony. (People v. Chatman (2006) 38 Cal.4th 344, 379-380.) However, evidence presented that a witness is afraid to testify or is fearful of retaliation for testifying, including that of the witness's demeanor, is relevant and admissible to the credibility of the witness and does not constitute misconduct even if intentionally elicited. (Evid. Code,  210, 351, 780, subd. (a); People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450 (Sanchez).) Further, use of leading questions, those that suggest to the witness the desired answer, is not prejudicial misconduct in the absence of a showing that such examination, if not excused in the interests of justice, had the effect of deliberately producing inadmissible evidence or calling for inadmissible or prejudicial evidence. (Evid. Code,  764, 765, 767; People v. Augustin (2003) 112 Cal.App.4th 444, 449; People v. Hayes (1971) 19 Cal.App.3d 459, 470.)

In addition, although a prosecutor may not give a personal opinion or belief as to a defendant's guilt if it will suggest to the jury that the prosecutor has information bearing on guilt that was not disclosed at trial, the prosecutor may offer an opinion on the state of the evidence as long as it amounts to fair comment, which includes reasonable inferences and deductions drawn from the evidence. (People v. Frye (1998) 18 Cal.4th 894, 975-976 (Frye); Hill, supra, 17 Cal.4th at p. 819.) In such situations, the prosecutor's statements must be viewed in the context of the arguments as a whole and the defendant, to prevail on a claim of misconduct based on those statements, must show a reasonable likelihood that the jury understood or applied them in an improper or erroneous manner. (Frye, supra, 18 Cal.4th at p. 970.) Moreover, " '[i]t is improper for the prosecutor to misstate the law generally . . . and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (Hill, supra, 17 Cal.4th at p. 829.)

"When a defendant makes a timely objection to prosecutorial [error or argument, or such objection is excused], the reviewing court must determine first whether misconduct has occurred. . . . [Citation.] Second, if misconduct had occurred, we determine whether it is 'reasonably probable that a result more favorable to the defendant would have occurred' absent the misconduct." (People v. Welch (1999) 20 Cal.4th 701, 752-753.)

With these rules in mind, we turn to the defendants' claims of prosecutorial misconduct on appeal.

B. Failure to Disclose Conversation With a Witness

The defendants specifically complain that the prosecutor committed prosecutorial misconduct when he failed to disclose to the defense a conversation between the prosecutor, the investigating officer Oliver and the then-testifying witness Bruce Langdon, Murphy's neighbor and friend. As we explain, defendants have forfeited this claim of prosecutorial misconduct.

When Langdon was answering questions on direct examination about the backpack he had given Oliver that Murphy had dropped off at his house after the Coronado crimes, Langdon mentioned he had talked to the prosecutor and Oliver sometime during the week while he waited to testify about whether he remembered two guns being in the backpack. Langdon testified that, after thinking some more about what Oliver had said to him previously about a revolver in the backpack, he realized he never knew a revolver was there and thus could not have been the one who told Oliver that a revolver was in the backpack. Defense counsel immediately requested a sidebar, noting that the defense did not have any report of the conversation.

At sidebar, when the court asked the prosecutor whether he had informed the defense about the conversation and its contents, the prosecutor stated he had not, explaining that "[Langdon] was waiting to testify about the backpack and the guns. And I said: You remember that? [] And he goes: Well, I asked him about guns in the backpack. [] And he said: I don't remember. [] I said: Well, did you tell Oliver? [] He said: No. I remember Oliver said now he remembers. [] That wasn't exculpatory. I don't have to tell [the defense] about every time I talk to a witness. [Langdon] said he remembered, as he acknowledged, then he went home. I haven't talked to him about it since. He's backing up what he said." When the court then asked why "as an issue of discovery" it should allow the prosecutor to continue questioning about the conversation that had not been disclosed to the defense, the prosecutor responded that "[i]t's consistent with what [Langdon] said [and t]here is nothing exculpatory about it."

Defense counsel essentially asked the court for an order directing the prosecutor to give the defense any additional information obtained from conversations with witnesses and in preparation for their testimony so that they would be able to properly cross-examine the witnesses. The court agreed, sustaining the objection and directing the prosecutor to turn over any other statements that the prosecutor intended to explore with his witnesses and, with specific regard to Langdon, not to go any further into that recent conversation. After the sidebar, the prosecutor asked Langdon two questions about whether Murphy had referred to an incident in Coronado when he gave Langdon the backpack, but did not inquire further about the conversation.

As the record shows, none of the defendants made a specific objection on the ground of prosecutorial misconduct regarding the prosecutor's failure to disclose the subject conversation, or request that the court admonish the jury about the matter in any way. Rather, the court ruled upon the defense discovery objection and made an appropriate order based on the defendants' counsel's request. Because the defendants cannot show under these circumstances that a timely objection or request for an admonition would have been futile or would not have cured any error, this claim of prosecutorial misconduct is waived. (Cole, supra, 33 Cal.4th at p. 1201.)

C. Inquiry About Photograph of a Gun

The defendants next claim that the prosecutor committed prejudicial misconduct, when he cross-examined Maxwell about whether he had taken a photograph of a weapon that a friend asked him to help sell. Defendants argue that asking the question of Maxwell was in violation of an in limine ruling precluding the questioning of Maxwell about a photograph of a rifle that had been obtained by police during a search of Maxwell's residence. Again, the defendants have forfeited the issue by failing to specifically request an appropriate admonition regarding the objected to inquiry which would have cured any conceivable error. We explain.

In limine, Maxwell had filed a motion to exclude as evidence a photograph of an assault weapon that had been provided to police by Maxwell's mother after they asked if she had any guns in the house during a search of the home.^[7] Believing that the prosecutor would use the photo to suggest it was the weapon Maxwell had used during the Guerrero home invasion robbery, defense counsel argued there was no foundation for its admission because no witness had seen the photographed weapon in Maxwell's possession or home, and the admission of the photograph would be more prejudicial than probative under Evidence Code section 352. The court granted the motion.

At trial, Maxwell testified on direct examination that he had never owned a semi-automatic rifle that looked like an assault weapon. He admitted, however, that he had tried in the past to help a friend sell one. On cross-examination, the prosecutor asked Maxwell if he were certain that he did not have any assault weapons. When Maxwell said he was certain, the prosecutor asked whether he had ever taken a picture of the gun that he tried to help his friend sell. Maxwell's counsel immediately objected and asked for a sidebar conference.

At the conference, the trial court informed the prosecutor that it was uncertain whether the prosecutor was "going to that area that was previously discussed about the photograph of the gun" when he questioned Maxwell about having taken a picture of a gun. When the prosecutor said he was only laying a foundation "to get there," Maxwell's counsel argued that the matter regarding the photo had been covered in the in limine motion and that Maxwell had only testified that he had seen the friend's gun that was for sale in the trunk of the friend's car and had made no mention of a photograph. Counsel expressed his irritation with the prosecutor who appeared to be attempting to go around the court's in limine ruling to get to the excluded photograph of the gun given to the police by Maxwell's mother. The court agreed, commenting that the door for the photograph had not been opened.

The prosecutor persisted, stating he was simply asking Maxwell whether he had a photo of the gun he tried to help his friend sell because he had described it as an AR-15, an M16, which is the same type of gun depicted in the photo that had been produced by his mother. The prosecutor argued, "[a]nd, potentially, depending on the answer, even I'd submit that as far as the gun was pictured, had he ever seen this photo before. Depending on his answers, then, how it came into police possession may be relevant, which was the subject of the motion, but not his total denials of having the gun. That gun could be showed to him now, based on his description: Is this the gun you are describing? And there is no violation of any in limine order."

Other defense counsel joined in the objection, noting that the prosecutor could have sought clarification of the in limine matter before asking Maxwell about the photo of a gun before the jury and that there would be no way to impeach Maxwell with the photo if he denied ever taking a picture of the gun or seeing a picture of the gun for sale.

The court sustained the objection, explaining its concern that the prosecutor had asked the question without seeking an advance ruling in light of the in limine ruling before going in the direction toward asking about the photo of the gun provided the police by Maxwell's mother which had been excluded. The court, however, commented that although the prosecutor could not ask about nor mention the photo of the weapon, he could ask Maxwell what was the basis for his description of the gun that he had tried to help his friend sell.

Not satisfied with this ruling, the prosecutor continued to argue that Maxwell had opened the door to the inquiry because he had testified there were no rifles or guns in his home and that Maxwell's mother had provided the photo to police after she was asked whether there were any guns in the home. After further argument and discussion about whether the photo depicted a rifle with a scope and whether there was any date stamp on the photo to indicate when it was taken, the court ruled the photograph was inadmissible under Evidence Code section 352.

After yet additional discussion and argument about the scope of the gun depicted in the excluded photograph, including Zingsheim's counsel's comments that he would ask for a mistrial in front of the jury if the prosecutor started "getting into anything having to do with scopes or photographs," the court concluded that any inquiry regarding the scope of the weapon depicted in the photograph also came within the in limine ruling and would be excluded under Evidence Code section 352. After the conference, the prosecutor asked no other questions about either a picture of a gun or about the scope of a gun.

Although none of the defendants specifically used the words of prosecutorial misconduct when making their objections to the prosecutor's question about whether Maxwell had taken a photo of the gun he was going to try to sell for his friend, it is clear from the record that they were complaining about the prosecutor's conduct in allegedly trying to elicit evidence in violation of an in limine ruling. However, no defense counsel asked that the prosecutor's question to Maxwell be stricken or requested any admonition, which could have cured any perceived error in the posing of the question. Because the defendants again cannot show on this record that a request for an admonition would have been futile or would not have cured any possible error, this claim of prosecutorial misconduct is also technically waived. (Cole, supra, 33 Cal.4th at p. 1202.) In addition, because the photograph was never admitted and the defendants essentially obtained the relief they sought by their objections to the prosecutor's photo question which was never answered, and the jury was instructed that questions to witnesses are not evidence, it is difficult to perceive any harm from the prosecutor's conduct in this regard.

D. Inquiries as to Whether Ditmars was Glancing at Maxwell During Her Testimony

The defendants further contend the prosecutor committed prejudicial error when he referred twice to Ditmars looking at Maxwell while she was on the witness stand testifying. As we explain, this claim is forfeited as well as having no merit.

After Ditmars testified on redirect examination that she could not remember telling the police that she and Zingsheim were going to have Guerrero "rolled" and that her reading of her police interview transcript did not refresh her memory, the prosecutor asked her to explain her answer. When Ditmars said she forgot what she was going to say, the prosecutor asked her whether she ever looked at Maxwell while she was testifying. Maxwell's counsel's objection on grounds of relevance was overruled by the court. Maxwell's counsel again objected on relevance grounds when the prosecutor asked Ditmars why she was looking at Maxwell after she had affirmatively responded to the earlier question. When the court again overruled the objection, Ditmars replied, "Because I can."

The prosecutor then asked Ditmars if she had attempted to mouth a word to Maxwell. She said she had not, adding that she did not want to be a "snitch