P. v. Craig

Filed 2/18/10 P. v. Craig CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of San Bernardino County, Michael R. Libutti, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Kent Craig and Craig Corle were friends and neighbors. Along with Cesar Guzman and Michael Jackson, Craig and Corle enjoyed partying together, using illegal drugs and alcohol, and playing musical instruments. The good times ended after Guzman and Craig became angry with Corle for failing to completely pay Guzman for a computer, and for refusing to return Craigs stereo speakers. Over the course of several weeks their animosity grew to a boiling point, and Craig and Guzman decided to hire a gang member to help them deal with matters. The gang member shot and killed Corle. He also repossessed the computer. After the murder, Guzman negotiated a deal with the prosecution, he pled guilty to manslaughter, he was sentenced to six years in prison, and he testified for the prosecution at Craigs trial. The jury convicted Craig of first degree murder (count 1), conspiracy to commit assault by means likely to produce great bodily injury (count 2), and a vicarious gun use enhancement. The trial court sentenced Craig to 26 years to life in prison.

On appeal, Craig asserts the evidence was insufficient to support the first degree murder conviction under a natural and probable consequences theory or under a felony-murder theory. Specifically, he challenges the sufficiency of the evidence corroborating the accomplices (Guzmans) testimony. He asserts the evidence was also insufficient to support the conspiracy to commit felony assault conviction. In addition, Craig argues it was reversible error for the trial court to prevent a witness from being recalled by the defense and also by excluding a note written by the murder victim. We conclude none of his contentions have merit, and we affirm the judgment.

I

Craig and Guzman were close childhood friends. They played basketball together, served in the military together, played music together, and saw each other frequently. Approximately one year before the murder, Guzman introduced Craig to his friend Jackson, who was also musically inclined. The three friends would often get together to party, drink, smoke, play cards, and make music.

Jackson said he became like a big brother to Guzman, who he described as being weak, mousy, [and] timid. Jackson liked Craig because they were a lot alike, both being strong, no nonsense, good guys who liked to have a good time. Jackson recalled Craig also acted like Guzmans big brother. Jackson said Corle also would try to socialize with their group whenever he could, but Jackson did not like his strong personality.

During the summer of 2002, Craig loaned Corle stereo speakers. Guzman loaned Corle a stereo receiver. Around the same time, Guzman sold a rebuilt computer to Corle for $400. Corle agreed to make $100 monthly payments, but after three installments he refused to pay the final $100. He claimed the computer was not working, but Guzman claimed Corle was turning it off improperly.

Jackson recalled that at the end of October 2002, he heard Craig and Guzman talking about hurting somebody or getting back at somebody or doing some bodily harm, and making somebody pay. Jackson remembered being annoyed by the long conversation because at the time he was trying to be mellow after drinking Hennessey and smoking weed and crack. He said all the negativity was blowing [his] high. Jackson understood the nature of the dispute was about speakers and computers and money owed, and you know, he cant wrong people like that. That night Jackson heard Craig and Guzman speak several times about hurting Corle. Jackson said he offered to help, telling them, Ill take him out. Ill do it myself. Ill take care [sic]. Just let it go. I dont like him anyway. Ill take care of it. Just cut the mess. Jackson remembered Craig replied by saying something like, No. Good[] brother. I know. Glad you got my back, but if somebodys going to do something to me, Ill take care of myself. . . . Ill take care of it myself. Jackson said he could not remember what exactly was said, But I know he wasnt going to be a pretty picture after it was over, whatever was going to happen. Jackson clarified he understood that during the conversation they were discussing killing Corle. Jackson recalled a later telephone conversation with Guzman, who said something to the effect of, Its been dealt with. Its been taken care of. Its been dealt with. The boys no longer with us. Hes no longer in the land of the living.

Guzman testified he recalled Craig was furious when Corle refused to return the speakers. He said the speakers dispute occurred before Corle stopped paying for the computer. After Corle refused to return the speakers, he and Craig bumped into each other on a few occasions. Craig called the police after one of the incidents and made a police report.

Like Jackson, Guzman recalled that one night at the end of October, Craig kept saying over and over he wanted to hurt Corle. He remembered Jackson got tired of hearing about it and offered to take him out. Craig told Jackson not to worry about it because, Well handle it ourselves.

On October 15, 2002, approximately one month prior to the shooting, Craig reported Corle to the police for bumping into him on a pathway at their apartment complex. He also told the police Corle had refused to return his stereo speakers. The investigating officer found Craig to be overly angry over the nature of the dispute. Craig was using profanity, was waiving his arms about, gritting his teeth, and was tight lipped. Craig told the officer, I dont want that mother fucker even talking to me. Craig added that he would kick Corles ass if he spoke to him. Craig did not mention anything about another dispute over a computer involving Corle. When the officer spoke to Corle, he noted Corle was very calm and cordial. Corle told the officer he had not taken any speakers and he did not know why Craig was accusing him of that. Corle agreed to have no further contact with Craig.

Craigs neighbor, Justin Wolosuk, stated he was aware of the dispute between Craig, Guzman, and Corle. Wolosuk knew Corle well, and they went camping together. He knew Craig fairly well, and they were on friendly terms. Wolosuk said Craig was extremely upset over a dispute involving a computer and speakers. He recalled Craig spoke about it just about every time they spoke, whereas Corle never mentioned it. Because six years had passed since the murder, Wolosuk could not remember Craigs exact words about wanting to hurt Corle but said he recalled a statement about something serious is going to happen. When questioned by the prosecutor, Wolosuk agreed telling the police Craig said something like, Im not going to stand for this. No sense in us fighting. I dont want to play games. You dont do this kind of stuff to me. I might as well kill him. After the murder, Craig treated Wolosuk differently: For several months Craig stopped interacting with him.

Guzman testified that on October 30, 2002, Craig telephoned him several times in the early evening. Craig asked Guzman to bring someone who could get Corles fucking ass kicked. Guzman telephoned a Crips gang member, Cedric Jones, who went by the moniker Hard Time. Guzman asked Jones to do the job. Jones regularly supplied Craig and Guzman with crack cocaine. Jones asked for $50 to do the job. Guzman said he relayed the price to Craig, who agreed to pay it.

Guzman picked up Jones and drove him to the apartment complex. Jones was wearing a dark hooded sweatshirt. Jones asked Guzman if he needed a gun, and Guzman replied, No, You dont need a gun. Were not going to kill him. When they arrived at the apartment complex, Craig was waiting for Jones near a dumpster. Guzman waited in the car and saw Jones get out, walk over to Craig, and have a conversation lasting less than a minute. Guzman saw Craig appear to hand Jones money.

Craig and Jones walked towards Corles apartment. After a few minutes, Guzman heard several gunshots in rapid succession. He then heard a second round of rapidly fired gunshots. He saw Craig run outside and look surprised. Guzman then saw Jones walk towards the car, and he was carrying Corles computer.

Guzman drove Jones home. On the way, Jones said Corle tried to grab the gun. Jones asked for more money because it was murder. He reminded Guzman he was a gang member and not to snitch. Guzman dropped Jones off and drove to a friends house. He asked Will Thomas to wipe down the inside and outside of his car. Guzman telephoned Craig.

Neighbors discovered Corles body around midnight and called the police. Corle was lying on the floor near his desk. He had multiple gunshot wounds clustered relatively close together, indicating the weapon was fired at close range. Based on the bullet trajectories and Corles position, the police determined he had been sitting on a swivel chair at his desk and then likely turned his chair as the gunman entered and began shooting him.

Within minutes after the murder, Craig called the police from his own apartment and reported he heard a shooting. Later that night, the police interviewed Craig. He admitted being mad at Corle because of the stereo speakers and he wanted to kick Corles butt. Craig also admitted he had wanted to kill Corle after the bumping incident two weeks earlier. Craig explained he felt extraordinarily disrespected and betrayed by Corle, and his anger was based upon the principle of the matter. However, he denied having anything to do with the murder. Two weeks after the murder, Craig threatened to sue the police because he believed he was being harassed. He left several derogatory messages for the lead detective, who had interviewed him two days after the murder. He left messages in an irate, angry, and degrading tone of voice. She recalled he said, You taco eating bitch. You better back off. You dont know who youre fucking with.

Jones contacted Craig for several months after the murder requesting more money. Craig initially refused, but ultimately paid Jones several hundred more dollars. Craig admitted giving Jones $500, but claimed he was being blackmailed.

In later interviews with the police Craig admitted he knew more about the murder. He claimed Guzman brought Jones over to kill Corle because of his dispute over the last computer payment. Craig said he was not involved in the plan. Craig was charged and convicted of first degree murder and conspiracy to commit assault by means likely to produce great bodily injury.

II

Craig argues insufficient evidence supports his two convictions. He asserts both convictions were based on the theory he and Guzman conspired to assault the victim, and the murder was the natural and probable consequence of the conspiracy. Craig maintains the only evidence linking him to the conspiracy to assault was uncorroborated accomplice testimony. Craig asserts even if Guzmans testimony was corroborated, it only proved there was a criminal conspiracy to commit a simple assault, which would not support the prosecutions theory the natural and probable consequences of the intended assault was murder.

The first fatal flaw with Craigs argument is his premise both convictions were based on the same theory, i.e., there was a conspiracy to assault and the natural and probable consequences was murder. They were not. The prosecution argued and the trial court instructed the jury count 1, first degree murder, could be based on evidence of (1) a willful, premeditated, and deliberate killing, (2) a killing during the commission of a robbery, burglary with intent to steal, or burglary with intend to rob i.e., felony murder, or (3) persons conspired together to commit robbery, burglary with intent to steal, or burglary with intent to rob. It was not based on evidence murder was the natural and probable consequence of the commission of a felony assault.^[1]

We recognize the prosecution in closing argument argued second degree murder was the natural and probable consequence of the felony assault (presumably in case the jury failed to find Craig guilty of first degree murder on the three theories mentioned above). The record shows the jury was not instructed on this theory for second degree murder, but in any case, the jury returned a verdict of first degree murder. Any argument the evidence was insufficient to support second degree murder is moot.

Accordingly, we conclude Craigs argument on appeal regarding the sufficiency of the accomplice testimony and the nature of the planned assault relates only to count 2 (conspiracy to commit felony assault). Thus, we will begin our legal analysis by addressing the sufficiency of the evidence supporting count 2.

Our standard of review is well established. In reviewing a sufficiency of evidence claim, the reviewing courts role is a limited one. The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citations.] [] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.] [Citation.] (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)

The law requiring corroboration of accomplice testimony is well established. A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof . . . . ([Pen. Code,]  1111.) The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence may be slight and entitled to little consideration when standing alone. [Citations.] [Citations.] Corroborating evidence must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. [Citation.] [Citations.] In this regard, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.] [Citation.] Corroborating evidence is sufficient if it substantiates enough of the accomplices testimony to establish his credibility [citation omitted]. [Citation.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) A defendants own testimony may be sufficient corroborative testimony, and false or misleading statements made to authorities may constitute corroborating evidence. [Citations.] (People v. Vu (2006) 143 Cal.App.4th 1009, 1022-1023.)

There is no dispute Guzman fits the definition of an accomplice. He is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. (Pen. Code,  1111.) Guzman testified to the following facts: He and Craig had been friends since high school. Jackson was the third member of their social circle, and Craig introduced Corle into the group. Guzman and Craig smoked crack cocaine together on weekends. Guzman was a crack addict and smoked it during the week as well. Craig would become aggressive after ingesting the drug.

Guzman also testified to the following: To pay for his drugs, Guzman worked doing apartment maintenance and received payments from filing a false workers compensation claim. He purchased the cocaine from a Crips gang member, Jones. He met Corle in the summer of 2002, and both Corle and Craig had strong personalities. Craig loaned Corle stereo speakers he was no longer using. Guzman sold Corle a refurbished computer for $400. After making three $100 monthly payments, Corle refused to make the final $100 installment.

Guzman testified the dispute over the stereo and computer started in September or October 2002. He recalled Craig was furious Corle would not return the stereo speakers and talked about it frequently. Craig bumped shoulders with Corle when they passed each other in the apartments courtyard, and Craig reported the incident to the police. Guzman admitted he was also upset with Corle for refusing to make the final payment for the computer.

Before the shooting, Guzman stated he went to Corles apartment and cussed him out for not making the final payment. Guzman recalled Corle replied he had receipts to prove the computer belonged to him, and Guzman decided to let the matter drop because he did not have a written contract with Corle. Guzman claimed he wanted Craig to do something to help, but the computer dispute had nothing to do with Corles death.

Guzman testified that on the day of the murder, Craig called him six times throughout the day asking him to bring someone over to beat up Corle. Guzman said he got tired of the telephone calls and decided to contact Jones for help with the job. Guzman said he telephoned Jones on Craigs behalf and arranged to pay Jones $50 to beat up Corle. Guzman said he relayed the information to Craig, who agreed to pay the money.

When Guzman picked up Jones he noticed he seemed high on drugs or intoxicated. Jones asked Guzman if he needed a gun. Guzman recalled he told Jones a gun was not necessary because they did not want Corle killed. Guzman said he was surprised by Joness question about the gun because he did not know Jones carried a gun. Jones got out of Guzmans car and walked towards his apartment. When he returned, Guzman assumed Jones had gotten rid of his gun. Jones slept in the car on the way to Craigs apartment. When they arrived, Guzman recalled Jones appeared to have shaken off his intoxication.

Guzman drove to the parking lot of the apartment complex and saw Craig standing near a dumpster. Jones exited the car and walked over to Craig. Guzman said he saw the two men talk briefly and Craig handed Jones something, which he assumed was the $50. Guzman remained in the car and watched the two men walk towards the apartments. Several minutes later Guzman heard four or five popping sounds. He then saw Craig run outside with his hand on his month, like he was surprised. Guzman then heard a second round of gunfire. A few minutes later, Jones appeared in the parking lot, and calmly walked to the car holding Corles computer. Guzman claimed he never told Jones to take the computer but admitted Jones knew Corle still owed Guzman $100 for it.

Once back in the car, Jones asked Guzman for additional money because this [was a] murder. Guzman returned Jones to his home, and then drove to a friends house. He asked his friend, Thomas, to wipe down the interior and exterior of his car and to store the computer. Guzman next called Craig. They both expressed disbelief over the murder because it was only their intention for Corle to be beaten up.

Guzman saw Craig one week after the murder. Guzman said Jones had been demanding more money, and Guzman was passing along the requests to Craig. Guzman convinced Craig to pay Jones more money. Together they drove to Joness residence, where Craig exited the car to meet with Jones. Guzman said Craig returned to the car with rock cocaine.

During this time, Guzman had fallen on hard times. He was pawning his belongings. He admitted that several days before the murder he pawned $50 worth of property. His relationship with Craig deteriorated as Craig blamed him for the murder. Guzman said Craig claimed he would not have hired Jones if Guzman had not wanted Corle beaten up. Guzman recalled Craig showed no remorse over Corles murder and said he hated that white boy. I wish I could dig him up and kill him again.

Several months after the murder, Guzman was arrested in Merced County for failing to pay child support. While in jail, Guzman agreed to help the police prosecute the case against Craig in exchange for a plea bargain allowing him to serve six years in jail. He made several calls to Craig on behalf of the police, but Craig never admitted to criminal conduct during those calls.

On appeal, Craig maintains the prosecution failed to corroborate any of Guzmans testimony. He specifically names three pieces of evidence that did not provide the requisite corroboration: (1) Guzmans wifes testimony; (2) the tapes of Guzmans telephone calls to Craig when he was working with the police; and (3) Guzmans police interrogation. Craig concludes none of this evidence corroborates Guzmans testimony or implicates him in the crime. Craig highlights all the evidence suggesting Guzman was an unreliable witness, tainted by his desire to secure leniency.

True, there was evidence showing Guzman was an impoverished drug addict living on fraudulent workers compensation settlement money. He had his own ongoing dispute with the victim, he hired Jones, and after the murder, he made a deal with the prosecution for a six-year sentence. Craig overlooks the prosecutions substantial evidence corroborating Guzmans testimony.

For example, Guzmans testimony about Craigs intense hatred and intent to harm the victim was independently corroborated by others. One neighbor, Wolosuk, testified he witnessed the extreme degree to which Craig was upset with Corle and heard Craig say he might as well kill him. Two weeks before the murder, Craig called the police after bumping into Corle. The police officer testified about Craigs tremendous rage and apparent overreaction to the situation. The police officer recalled Craig was spewing expletives and clenching his teeth while expressing the victim should not speak to him again or he would kick his ass. Wolosuk said after this incident, Craig told him he was glad the police were there because he was going to kill Corle. One of Craigs close friends, Jackson, testified that in the days before the murder, Guzman and Craig talked frequently about how upset they were with Corle. When Jackson offered to take care of matters, Craig rejected the offer stating, if somebodys going to do something to me, Ill take care of it myself. Jackson understood this comment to mean Craig intended to hurt Corle and he was not going to be a pretty picture after it was over. Finally, Craigs extreme animosity towards Corle was corroborated by his own statements to the police. Craig admitted to the police he felt betrayed and disrespected by Corle. He stated he wanted to kill Corle based on the principle of the matter.

Furthermore, Guzmans testimony about several events occurring before and after the murder was corroborated. His recollection that shortly before the murder Craig called him numerous times was corroborated by phone records. Guzman testified Craig gave Jones $50 for the assault and more money thereafter to keep quiet about the murder. The existence of a financial arrangement between the two men is confirmed by other evidence. Police witnessed Craig give Guzman $200 for Jones. Craig admitted giving over $500 to Jones. Although Craig asserted he was being blackmailed by Jones, his claim does not diminish the fact Craig engaged in financial dealings with Jones relating to the murder and suggests he was involved.

Guzmans testimony he heard multiple rapid gunshots was corroborated by other witnesses in the area who heard the shots. In addition, the autopsy revealed the bullet wounds were clustered close together, indicating the gun was fired rapidly and at close range. Guzmans testimony Jones was wearing a dark hooded sweatshirt when he returned to the car carrying a computer was corroborated by an eyewitness. Curtis Schafer saw a dark skinned young man, wearing dark clothing, go down the stairs from Corles apartment carrying what appeared to be a box. Schafer was unable to positively identify Jones in a photo lineup but narrowed down a six-pack photo lineup to Jones and one other person. Given the record before us, we conclude the prosecutor produced sufficient corroborative evidence to implicate and connect Craig with the crime charged.

Finally, we note the Attorney General suggests Guzman was not a typical accomplice who sought to shift all the blame. We agree as the record shows Guzman inculpated himself equally with Craig, and accepted responsibility for his actions. The suspicious testimony of the drug addict in dire circumstances had some redeeming and credible qualities. Given it was also sufficiently corroborated, it was a proper subject for the jurys consideration.

Craigs second attack relates to the unique contents of the accomplice testimony, arguing it proved only a conspiracy to commit a simple assault, not felony assault. He focuses on Guzmans testimony they only intended for Jones to beat up the victim. Guzman said he specifically told Jones not to bring a gun, and was surprised by Joness question asking if a gun was needed. Guzman testified he clarified the victim was not to be killed, only beaten up. When Jones exited the car, Guzman assumed Jones was getting rid of the gun. After driving to the apartment, Guzman was sure Craig handed Jones money, not a gun. Guzman had no indication Jones had a gun with him. Guzman said that after hearing gunshots, he saw Craig run back towards the dumpster with his hand on his mouth in a gesture of shock. When Guzman spoke with Craig later on the telephone, both men expressed disbelief that Corle had died.

Craig concludes the evidence shows at best conspiracy to commit a simple assault. He explains simple and felony assault cases are distinguished by the nature of the defendants intent. An aggravated assault is one committed with the intention of committing some additional crime. By contrast, a [s]imple assault is one committed with no intention to do any other injury. We read this to mean with no intention to do any other injury than the one addressed by a simple assault, to wit a corporal hurt. (People v. Wright (2002) 100 Cal.App.4th 703, 718.)

However, what Craig apparently fails to appreciate is the evidence supporting the theory there was a conspiracy to commit a specified offense. In such cases, the overt act may be committed by any one of the conspirators. (People v. Russo (2001) 25 Cal.4th 1124, 1135.) Conspirators are liable for the offenses they intended to facilitate and all reasonably foreseeable offenses committed by the co conspirators. (People v. Hayes (1999) 21 Cal.4th 1211, 1271, fn. 20.)

In this case the facts support a conspiracy to assault the victim, the natural and probable consequence was serious bodily injury. The agreement to inflict harm arose in the context of a highly volatile and escalating dispute between former friends. Several witnesses heard Craig threaten to severely harm Corle. The fact he and Guzman hired a Crips gang member to commit the assault demonstrated they intended the infliction of great bodily injury. Guzman testified they chose their drug supplier, Jones, because they believed he could adequately handle Corle who was muscular and in good health. It is very telling they took measures to hire a gang member, as opposed to gathering some of their own friends to retaliate against Corle. It is reasonable to assume a drug dealing Crips gang member would be easily capable of inflicting great bodily harm, regardless of whether he was known to be armed. There are ample gang violence cases affirming gang-related fistfights often escalate. (See People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 [shooting during gang-related fistfight was natural and probable consequence of fistfight].) The circumstances of this case demonstrate the conspirators agreed to assault Corle with force likely to produce great bodily injury.

III

Craig also challenges the evidence supporting his first degree murder conviction. As mentioned above, the jury in this case was instructed first degree murder could be based upon evidence of: (1) a willful, premeditated, and deliberate killing, (2) a killing during the commission of a robbery, burglary with intent to steal, or burglary with intend to rob i.e., felony murder; or (3) persons conspired together to commit robbery, burglary with intent to steal, or burglary with intent to rob. Craig does not challenge the evidence supporting a jury finding under the theory there was a willful, premeditated, and deliberate killing. Rather, he asserts the evidence was insufficient to prove either a burglary or robbery. He is wrong.

There was sufficient evidence of a robbery. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. (Pen. Code,  211.) Here, the evidence showed Craig was upset with the victim not only for refusing to return stereo speakers but also for failing to pay a close friend for a refurbished computer. It is reasonable to infer from evidence of the degree of Craigs hatred and plans for a painful reprisal that he was motivated by more than just his own stereo speakers dispute with Corle. Craig and Guzman both wanted the computer taken from Corle.

Based on the forensic evidence Corle was shot multiple times at close range, it can be inferred Jones entered the apartment and asserted significant force before taking the computer. Corle was murdered while sitting in a chair near a desk. Based on the bullet trajectories and Corles position after he died, it could reasonably be inferred Corle turned his swivel chair as Jones entered. Corle attempted to defensively block and shield himself from the hail of bullets with his arms. Jones exited Corles apartment carrying the computer. All the elements of robbery were satisfied.

Craig argues much of the above testimony came from an uncorroborated accomplice, which cannot be trusted. We have already addressed and rejected this contention and the analysis need not be repeated. Craig also argues contrary inferences can be drawn from the circumstantial evidence. He suggests it could be inferred Corle voluntarily handed Jones the computer prior to the shooting and there is simply no way to know what really happened. But we cannot reweigh the evidence. As discussed above, there is sufficient evidence for the jury to conclude Jones took the computer by force and fear.

IV

The trial court refused to permit Craig to recall Wolosuk to testify, and excluded a note the victim had written. We conclude neither ruling was an abuse of discretion.

Wolosuk testified about the acrimony between Craig and Corle in the weeks before the murder. He was aware of the basis for the dispute and Craigs extreme reaction to the situation. During direct examination, the prosecutor reminded Wolosuk the first time he testified about these matters was after a serious car accident and he was under the influence of heavy sedatives and pain relievers. At the prior trial, Wolosuk agreed he could not recall all the things that had been said. The prosecutor therefore in this trial attempted to refresh Wolosuks recollection of what he said to the police about Craig and the dispute. During cross-examination, defense counsel strove to impeach Wolosuk with inconsistencies between his current and prior testimony. Specifically, Wolosuk changed his story by increasing the number of times he and Craig spoke about the dispute. In response to counsels question if Wolosuk recalled anything Craig said specifically about the dispute, Wolosuk responded Craig told him a few days before the murder, something serious is going to happen. After completing his testimony, Wolosuk was excused, subject to recall.

Later in the trial, defense counsel determined he needed to recall Wolosuk, claiming he was surprised by his testimony regarding something serious was going to happen. Counsel explained he wanted to ask Wolosuk questions about how he suddenly was able to recall this particular statement after six years. The prosecutor objected, arguing the defense had ample opportunity to cross-examine the witness and there was not anything new to explore. The trial court denied the request citing Evidence Code section 352. The court concluded the probative value in recalling Wolosuk was minimal

when compared to the waste of time it would involve. The court also determined that based on counsels offer of proof, the defense had every opportunity to question Wolosuk on his conversations with Craig during cross-examination.

The trial court is vested with broad discretion on whether to grant or deny a request to recall a witness. Evidence Code section 774 provides a witness cannot be reexamined except as to any new matter upon which he has been examined by another party to the action. Leave may be granted or withheld in the courts discretion. (See also Evid. Code,  778.)

Here, the courts exercise of its discretion was sound. Defense counsel sought to ask further questions about one comment made during his own

cross-examination. Counsel could have easily inquired about the statement when it was made. Since the statement was not favorable to the defense, it appears counsel initially decided not to draw any further attention to it. Counsel later wanted to highlight the statement was new but this would not have shed additional light on the weight to be given this testimony. As described during the direct examination, there were many statements and events Wolosuk had not previously remembered due to his medical condition but now he could recall. Wolosuk stated he was heavily medicated the last time he testified, and the crime occurred a long time ago. During cross-examination, defense counsel had already highlighted several discrepancies in the testimony, giving the jury reason to question its value. Recalling Wolosuk to again show the witness had a shaky memory of the events would have little probative value. As noted by the Attorney General, Evidence Code section 352 empowers the court with discretion to prevent degeneration of criminal trials into wars over collateral credibility issues.

Craig also challenges the courts decision to exclude a handwritten note the victim wrote before his death. The note described the nature of the computer dispute between himself and Guzman. It stated, Hey Cesar. Im dropping the last payment of

this computer because you said it came with a monitor. And for the aggravation you caused me by trying to side step your word, Im keeping the receiver. If you have a problem with that, you can call the cops or come down here yourself, or we can part as or remain friends. The choice is yours. It is the only choice you have. P.S., if were still friends under these . . . conditions, Ill hang your door but only for a real friend. Never bullshit an honest bullshitter. Craig asserts this note contains several pieces of new relevant information and would serve to impeach Guzmans assertion the assault had nothing to do with the dispute over the computer. The trial court excluded the note as irrelevant, unduly time consuming, and constituting hearsay. The court was right.

First, Craig claims the note validates his theory there was an ongoing dispute between the victim and Guzman. The record shows this dispute was already verified by Wolosuks, Guzmans, and Jacksons testimony. That the victim was refusing to make the final payment was also verified by other evidence already presented in the trial. The jury learned the victim had written the note, stating his intention to keep the computer and receiver. The note added nothing more but to show Corles apparent willingness to remain friends with Guzman. Contrary to Craigs contention, the note would not serve to impeach Guzmans testimony the assault was arranged solely in retribution for Craigs stereo speakers. There is no evidence Guzman saw the note before hiring Jones to assault the victim. Craig claims it was significant the note failed to mention the stereo speakers dispute between himself and Corle. But the note was addressed to Guzman not Craig, and its purpose appeared to be directed at ascertaining whether Guzman was still his friend. We conclude the note was irrelevant to the reasons why, or why not, Guzman and Craig had already hired Jones to beat up Corle. The court properly excluded the note.

V

The judgment is affirmed.

OLEARY, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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^[1] This was likely due to the Irelandmerger doctrine, holding assaultive-type crimes merge with the charged homicide and cannot be the basis for the finding of felony-murder. (People v. Ireland (1969) 70 Cal.2d 522, 540.)