P. v. Lujan

Filed 1/27/10 P. v. Lujan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle Newcomb and Paul E. OConnor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted Eugene Lujan of the first degree murder of Samuel George and conspiracy to murder George. (Pen. Code,  187, subd. (a), 182, subd. (a), 189.)^[1] The jury also found true various allegations related to the use of a firearm during the commission of the crime. Lujan was sentenced to a total term of 50 years to life.

Lujan contends his conviction must be overturned because the trial court (1) erroneously denied his motion for a new trial based on newly discovered evidence; (2) failed to instruct the jury on accomplice testimony pursuant to section 1111; and (3) refused his request to instruct the jury to disregard the fact that Lujan was in custody. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Georges body was discovered on December 1, 2006, at approximately 3:00 p.m. He had been shot 14 times with a gun that was not a shotgun. Five of those wounds were to the head, three of which could have been the fatal shot. There were five wounds on his hands that may or may not have been caused by a shotgun.

Lujan and Heriberto Valencia were charged with first degree murder ( 187, subd. (a), 189) and conspiracy to commit first degree murder ( 182, subd. (a), 187, subd. (a), 189) in Georges death. Each count also alleged that each defendant personally discharged a firearm, causing great bodily injury or death within the meaning of section 12022.53, subdivision (d), and personally used a firearm during the commission of a felony within the meaning of section 12022.5, subdivision (a)(1). In addition, each count alleged that Lujan intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). Defendants moved to sever their trials, and the motion was granted by the trial court. Lujan was tried first.

We focus on the testimony of two witnesses, omitting much, but nothing of significance. On the day of the murder, Eric Castro awoke when George knocked on his door. George asked Castro to go with him to purchase some methamphetamine. The two drove in Georges vehicle to Valencias house. Lujan and Robert Rangel were present at Valencias house. Lujan and Valencia said they did not have any drugs for sale.

Castro and George then drove to a nearby store to purchase beer. While they were at the store, Lujan approached as Castro sat in the vehicle. Lujan asked if they still wanted to purchase some methamphetamine and, if so, to follow him to a ranch to get the methamphetamine. Castro watched Lujan walk back to Valencias house. Valencia, Lujan and Rangel then entered Valencias SUV. Valencia was driving, Rangel sat in the front passenger seat, and Lujan sat in the rear seat. George and Castro followed Valencias vehicle out of town. They drove for about five to eight minutes until Valencia turned onto a dirt road and stopped his vehicle. George stopped his vehicle behind Valencias vehicle.

Valencia had the door to his vehicle open. Castro heard Valencia tell Lujan to give it to those fools. Lujan exited the vehicle and dropped what appeared to be a bag of methamphetamine. Castro instructed George to get out of the vehicle to purchase the methamphetamine. George exited the vehicle and walked towards the passenger side of Valencias vehicle. Lujan pulled out a shotgun from the back seat of Valencias vehicle and shot George in the stomach area. Valencia and Rangel were still sitting in the front seats of Valencias vehicle when Lujan shot George.

George began running towards the street. Valencia exited his vehicle and yelled at Lujan to [g]et that fool. Lujan started chasing after George, and Valencia followed. Castro was so frightened he could not move. He heard numerous shots and saw George fall to the ground. Castro moved into the drivers seat of Georges vehicle and drove away.

Castro drove to his house and rinsed off Georges vehicle. As he was doing so, Valencia and Lujan came by the house. Lujan told Castro not to say anything and told Valencia to give Castro some money. Lujan and Valencia then drove away. When Castro was finished rinsing Georges vehicle, he moved it into the parking lot of an apartment complex across the street from his house.

Later that afternoon Castro went to Rangels house and gave him the keys to Georges vehicle. While there, he saw some clothes burning in the backyard. Rangel, Valencia and Lujan were present. Lujan bragged about breaking the shotgun when he hit George in the head with it.

Castro did not report the shooting to the police because he was afraid.

Lujans trial counsel attempted to impeach Castro with inconsistencies between his trial and preliminary hearing testimony. For example, Castro testified at the preliminary hearing that he and George drove to the nearby store because Lujan told him to go there to complete the purchase of methamphetamine. Castro also testified inconsistently at the preliminary hearing about whether he saw Lujan chase George after Lujan shot George with the shotgun. Castro also incorrectly described the clothes George was wearing that day. Lujan pointed out that Castros actions after the shooting were inconsistent with being afraid of Valencia and Lujan.

Rangel was the second witness whose testimony is pertinent. Rangel was at Valencias house when Castro and George arrived in Georges vehicle. Rangel heard Castro and George ask Lujan if he had any methamphetamine for sale. Rangel went inside the house and was followed by Valencia. Valencia made a comment asking, What would happen if something happened to [George]. Rangel thought Valencia was joking. Valencia picked up a shotgun and a handgun from his room. Lujan came into the house and appeared to go along with the idea of shooting George, but as a joke. Valencia told Lujan to tell Castro and George to wait at the store. When Lujan returned, Valencia said it would be funny to sell Castro and George fake drugs.

Rangel, Lujan, and Valencia got into Valencias vehicle, with Valencia driving -- Rangel in the front passenger seat and Lujan in the rear passenger seat. Lujan was carrying a sweater when he got into the vehicle. Valencia drove to a field, followed by Castro and George.

Lujan got out of the vehicle and spoke with George. He was holding a bag of fake drugs. Lujan told George that he had to weigh the methamphetamine. Rangel saw George get out of his vehicle and then heard a gunshot. Valencia was still in the vehicle when the first shot was fired. George started running towards the street. George was asking what he had done, and Valencia replied that George had fucked up. Valencia exited the vehicle and started shooting. Valencia fired many shots, going crazy like. George was on the ground, and Lujan was walking towards Valencia and George. Valencia knelt down while shooting at George. Then Valencia and Lujan reentered the vehicle. Valencia was holding a handgun. Rangel never exited the vehicle.

Rangel saw Castro drive away in Georges vehicle. Valencia drove to his house. They went inside the house and Valencia and Lujan changed clothes. Valencia then burned the clothes and shoes in a barrel in Rangels sisters backyard (next door to Valencias house). Valencia was laughing about the shooting, but Lujan appeared upset. Castro arrived while the clothes were burning.

Valencia and Rangel dug a hole in the backyard and buried the clothes. Valencia also put a bullet inside the hole. The shotgun and handgun were placed in a box, along with the clip for the handgun. The shotgun was in two pieces.

Later that day Valencia, Lujan, and Rangel went to an auto parts store and Valencia purchased two cans of engine degreaser. They bought the engine degreaser because Lujan had touched Georges vehicle. The three then went to the apartment complex where Castro had parked Georges vehicle. Lujan and Rangel sprayed the degreaser on Georges vehicle so Lujans fingerprints would not be found on the vehicle. A few days later Lujan stated that he thought he had shot Georges hand off. Lujan said, It was wrong.

Rangel claimed he lied during most of his statement he gave to the investigating officers. He was afraid of Valencia. He described Valencia as a wannabe Scarface.^[2]

In his interview with the investigating detectives, Rangel stated he believed that George was going to buy some methamphetamine from Lujan. Rangel demonstrated for the detectives how Lujan held the shotgun when Lujan fired at George.

Lujan was convicted of all counts and all enhancements were found true. He was sentenced to an unstayed term of 50 years to life.

DISCUSSION

I.                   Denial of Motion for a New Trial

Lujan moved for a new trial pursuant to the provisions of section 1181. This section permits the trial court to grant a new trial if one of nine specific conditions exist. Lujan relied on subdivision 8 of section1181, which authorizes the trial court to grant a new trial when the defendant discovers new material evidence that he could not have discovered with reasonable diligence before the trial. The trial court denied the motion.

We review a trial courts order denying a motion for a new trial for an abuse of discretion. The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [Citations.] [I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background. [Citation.] [] In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits. [Citations.] (People v. Turner (1994) 8 Cal.4th 137, 212, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)

Lujans motion was based on Castros and Rangels testimony at Valencias trial. The issue here is whether the perceived inconsistencies that occurred at the two trials render a different result probable on a retrial of the cause. Lujan asserts the inconsistencies in the testimonies were so great that it is probable he would have achieved a better result had the evidence been available to him at his trial. We granted his request that we take judicial notice of the testimony in Valencias trial, and we have reviewed the entire record in that matter.

Castros testimony

We begin with Castros testimony at Valencias trial, focusing on the inconsistencies Lujan claims were most significant. Castros testimony at both trials was consistent in the significant points. Castro and George drove to Valencias house to purchase methamphetamine and then followed Valencia to a dirt road, where George was shot by Lujan. George ran away and was followed by both Valencia and Lujan. Castro drove away, was warned not to discuss the shooting with the police, and saw Rangel, Valencia, and Lujan burning clothes later that day.

Valencias counsel, armed with Castros statements to the police, his preliminary hearing testimony, and his testimony at Lujans trial, questioned Castro extensively. Trial counsel successfully confused Castro on numerous insignificant points.

Lujan argues that it is significant that Castro testified inconsistently on the reason he and George went to the corner store after leaving Valencias house. Castro testified at both trials that they went to the store to buy beer, but admitted at one trial that Lujan instructed them to go to the store and wait for him to arrange to obtain methamphetamine to sell to them. Castro also testified inconsistently on whether he saw Lujan with a shotgun, or merely heard the shot that injured George.

These inconsistencies are of no benefit to Lujan. Why Castro and George drove to the store is insignificant. At both trials Castro testified consistently that while at the store Lujan approached the vehicle and instructed Castro and George to follow him if they wanted to purchase some methamphetamine. This is the testimony that is significant.

Whether Castro saw the shotgun also is of little importance, especially since Lujan gave a statement to the police that was played at trial, wherein Lujan admitted shooting George with the shotgun, but claimed it was Valencia who killed George after George ran away. There is nothing in Castros claimed inconsistent testimony that supports Lujans argument.

Rangels testimony

Rangels testimony, on the other hand, was wildly inconsistent in the two trials. We begin, however, with his statements to the police. Rangel initially denied any knowledge of the shooting and then testified that Lujan was the only one who shot George. In a later statement to the police, Rangel essentially was consistent with his testimony at Lujans trial. Rangel saw Lujan first shoot George with a shotgun. When George began to run away, Valencia and Lujan chased him and many shots were fired. When Valencia returned to the vehicle, he was carrying a handgun and Lujan was carrying a shotgun.

At Valencias trial, Rangel testified consistently with his initial description of the events that he gave to the police. He claimed that Lujan shot George with the shotgun, chased him down when he ran, and then shot him with the handgun. Valencia did not, according to this version of events, participate in the shooting. Instead, he ran around like a girl, while George was being murdered by Lujan. This is the same sequence of events, with some embellishment, that Rangel initially gave to officers, and thus was presumably available to Lujans counsel through discovery.

While Rangels testimony at Valencias trial certainly differed from his testimony at Lujans trial, it is inconceivable how the testimony could benefit Lujan. According to Rangel, Lujan either shot George one time with the shotgun, causing only what was not a fatal wound (as Lujan told officers in his statement), or Lujan shot George numerous times, causing Georges death. The version of events that is most helpful to Lujan is the events to which Rangel testified at Lujans trial. If there were a retrial, and Rangel was impeached with his testimony at Valencias trial, the impression that would be created is that Valencia was more culpable for Georges death than he claimed. This impression does not render a different result probable on a retrial of the cause.

We conclude the trial court did not abuse its discretion in denying Lujans motion for a new trial. The inconsistencies in Castros and Rangels testimonies, whether considered individually or collectively, would not result in a better outcome for Lujan if a new trial were granted.

II.                Instructional Issues

A.     Accomplice instructions

Lujan argues that both Castro and Rangel meet the statutory definition of accomplice, therefore imposing on the trial court a sua sponte duty to instruct the jury on how to evaluate accomplice testimony.

A defendant may not be convicted on the testimony of an accomplice unless that testimony is corroborated. ( 1111.) The corroboration must show more than merely the commission or the circumstances of the offense. (Ibid.) An accomplice is one who is liable to prosecution for the identical offense charged against the defendant . (Ibid.) Accessories are not accomplices. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103 (Coffman).) Whether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed. [Citation.] (Ibid.)

The Legislature has deemed accomplice testimony so untrustworthy that it falls within the category of evidence that is insufficient as a matter of law to support a conviction. (People v. Najera (2008) 43 Cal.4th 1132, 1137 (Najera).) The distrust with which accomplice testimony is viewed finds its roots in English common law. (People v. Tobias (2001) 25 Cal.4th 327, 331 (Tobias).) The generally stated reason is that an accomplice who testifies against a defendant does so either to obtain favor from the prosecutor or with the motive to place the responsibility for the crime on the defendant by minimizing any involvement the witness may have had in the crime. (Ibid.) This reason explains the long-standing requirement that when the prosecution calls an accomplice to testify, the jury must be informed that the testimony should be viewed with distrust. (People v. Guiuan (1998) 18 Cal.4th 558, 565 (Guiuan).) Accordingly, Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 334 and 335, inform the jury that the testimony of an accomplice testifying for the prosecution must be corroborated and should be viewed with caution.^[3]

Because accomplice testimony is insufficient to support a conviction, the jury must be instructed to ensure it does not rely solely on accomplice testimony. (Najera, supra, 43 Cal.4th at p. 1137.) Therefore, if there is sufficient evidence to find a witness was an accomplice to the crime, the trial court has a sua sponte obligation to instruct the jury appropriately. (Ibid.; Tobias, supra, 25 Cal.4th at p. 331.) If there is not substantial evidence to permit an inference that the witness was an accomplice, accomplice instructions are not required. (People v. Boyer (2006) 38 Cal.4th 412, 466 (Boyer).)

The initial question we must answer, therefore, is whether there was sufficient evidence to permit the jury to infer that Castro and/or Rangel were accomplices in the murder of and the conspiracy to murder George.

There was no evidence that Castro participated in the planning or the murder of George. No witness testified that Castro was involved in, or aware of, the plans made by Lujan and Valencia when the parties drove to the dirt road. Instead, the undisputed testimony is that Castro drove to the dirt road with George for the sole purpose of purchasing methamphetamine, and that he was shocked when George was murdered. Castros actions after the murder may subject him to criminal liability as an accessory, but accessories are not accomplices. (Coffman, supra, 34 Cal.4th at p. 103.) Therefore, there was insufficient evidence to support the theory that Castro could have been an accomplice.

Rangel, however, is in a different position. The evidence at trial established that he was present when Lujan and Valencia discussed killing George, but he claimed he thought they were joking. Rangel claimed he never exited the SUV while at the dirt road, and he did not participate in the murder. Rangels attempt to minimize his involvement is exactly the type of testimony that caused the Legislature to conclude that accomplice testimony is not trustworthy. The jury logically could have inferred that Rangel was fully aware of the plans to murder George, actively participated in the planning of the crime, and merely attempted to minimize his participation to avoid criminal prosecution. Therefore, the trial court should have instructed the jury on the principle of accomplice testimony.

If there is sufficient corroboration of the accomplices testimony, however, then a failure to provide accomplice instructions is not prejudicial and reversal is not required. (Boyer, supra, 38 Cal.4th at p. 467.) Not only was there sufficient evidence to corroborate Rangels testimony, there also was sufficient evidence of Rangels lack of credibility to permit the jury to evaluate his testimony appropriately.

Corroboration of Rangels testimony was provided by Castro, who corroborated the events at the dirt road, and by the statements given by Lujan to the police that were introduced into evidence. Rangels credibility was put before the jury by his evolving statements to the police.

Moreover, Lujans interest was not served by attacking Rangels credibility. At trial, Rangel testified that Lujan shot George only one time, consistent with Lujans statement to the police. Indeed, Rangel attempted to minimize Lujans participation in the shooting, just as Lujan did when giving his statement to the police. This testimony supported Lujans theory that Valencia murdered George. Indeed, six pages of Lujans counsels closing argument were spent attempting to convince the jury that Rangels trial testimony was reliable and should be believed by the jury.

The ample corroboration of Rangels testimony, along with the complete lack of incentive for Lujan to attack Rangels credibility, convince us that the error in failing to instruct the jury with accomplice instructions did not prejudice Lujan, regardless of the standard of review employed. (Boyer, supra, 38 Cal.4th at p. 467.)

B.     Lujans custody status

Lujan was in custody throughout the trial. On the first day of testimony, Lujans counsel concluded the jury had deduced this because Lujan was not in the hallway with attorneys, and presumably jurors, during breaks. Outside the presence of the jury, trial counsel requested the trial court instruct the jury that it should not make any inferences or draw any conclusions from Lujans custody status. The trial court denied the request. Lujan contends the ruling was erroneous and requires reversal of the judgment.

Lujan acknowledges that there is no authority directly on point, but argues that a defendant appearing in jailhouse clothing for trial is analogous. The Supreme Court has held that the state cannot compel a defendant to stand trial in identifiable prison clothes. (Estelle v. Williams (1976) 425 U.S. 501, 512-513.) To do so might impair the defendants right to be presumed innocent, thus resulting in a trial that is unfair, in violation of the Fourteenth Amendment. (Estelle, at pp. 503-505.) The defendants clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. [Citation.] (Id. at p. 505.)

The objection raised by Lujan falls into a different category for three reasons. First, there is no evidence the jury ever reached this conclusion. Instead, Lujan asks us to assume the jury concluded he was incarcerated. This is an assumption we are not willing to make. The jury may not have noticed Lujans absence in the hallways, or, if noticed, may have reached an entirely innocent conclusion to explain his absence or may have assigned his absence no significance whatsoever.

Second, the entire jury was not reminded on a daily basis that Lujan was incarcerated. Prison garb is objectionable because each time the jury sees the defendant in court it is reminded that he is in custody. Here, some members of the jury may or may not have inferred, on a single occasion, that Lujan was incarcerated during trial. Such abstract possibilities do not create a continuing influence throughout the trial.

Finally, the jury was instructed that it must not be influenced by, or biased against, Lujan because he was arrested, charged, or brought to trial. To the extent any juror may have concluded Lujan was incarcerated during trial, this instruction adequately informed the jurorsthat his custody status should not influence them in their deliberations. Accordingly, the trial court did not err in refusing trial counsels requested instruction.

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

LEVY, Acting P.J.

_____________________

HILL, J.

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

^[2]Apparently referring to the movie Scarface (Universal Pictures 1983), starring Al Pacino.

^[3]This requirement does not apply to accomplices who are testifying in favor of the defendant because an accomplice ordinarily does not benefit from such testimony. (Guiuan, supra, 18 Cal.4th at p. 567.)