P. v. Matangi






Filed 1/13/11 P. v. Matangi CA2/6




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. TAIOSISI MATANGI, Defendant and Appellant.

2d Crim. No. B220098 (Super. Ct. No. NA072305) (Los Angeles County)

Taiosisi Matangi appeals from the judgment following his conviction by jury of murder and premeditated attempted murder. (Pen. Code, §§ 664/187, subd. (a).)^[1] The jury found true personal handgun discharge and criminal street gang allegations as to each crime. (§§ 12022.53; 186.22, subd. (b)(1)(C).) The court sentenced appellant to prison for 90 years to life (25 years to life for first degree murder, with a 25-year-to-life firearm enhancement, and a consecutive 15-year-to-life term for premeditated attempted murder, with a 25-year-to-life firearm enhancement). Appellant contends that the trial court erred by failing to give accomplice instructions regarding two prosecution witnesses. He also contends that the prosecutor committed prejudicial misconduct during closing argument. Respondent concedes the instructional error but argues that it was harmless. We affirm.
BACKGROUND
Appellant's convictions arose from a gang-related shooting on Friday, November 3, 2006, after a football game at Jordan High School, in Long Beach. Because of the accomplice issue, we summarize the accomplice evidence separately, at the end of the prosecution case-in-chief.
Prosecution Case-in-Chief
Appellant belonged to the Tongans for Life gang (TFL) and used the monikers Shaka and C.C. Samuel Crichton, the murder victim, (Sam) belonged to Fam Bam, a Samoan gang.^[2]
On November 3, 2006, after the football game, Jacob Solia, Sam, Sam's younger brother, Italia, and Simon, were walking away from Jordan High School. Lila Tupu, a Samoan student, stopped to talk to Sam. After they spoke, Lila walked north on Atlantic Avenue and Sam walked south, with Jacob and their friends.
Jacob noticed a group of three cars, a light blue (or gray) Thunderbird, a Blue Tahoe SUV, and a "little gray small car." Members of TFL and its affiliate female gang, Lady Riders, were in each of the cars. Appellant drove the Thunderbird. Nathan Togiola (Munchy), a TFL member, was in the SUV with Lady Riders Tina Leka Hopoi and Yolanda Hopoi. Avery was in the gray car with Lady Rider, Monique Moe and another a girl named Nau.
The three-car caravan approached Jacob's group. Seeking their gang affiliation, the cars' occupants asked Jacob's group, "Where you guys from‌" Someone from Jacob's group hit someone in one of the cars. The occupants of that car then threw beer bottles at Jacob's group. The caravan drove away a couple of minutes later. Jacob's group kept walking. The SUV approached again. Togiola rolled down its window and asked, "Where you guys from‌" Jacob's group responded, "SOS [Sons of Samoa], Fam Bam." Togiola retorted, "Fuck you guys," and the SUV pulled away. Concerned that something would happen, Jacob's group decided to go to the opposite side of Atlantic Avenue.
Jacob, Sam and Italia were behind the rest of their group. As they crossed the street, Jacob heard someone behind them shout, "Tongan for Life," and heard gunshots. Jacob ran away, but a shot hit his leg. Just before the shooting, Jacob was standing next to Sam.
Lila heard the gunshots, also, right after she walked away from Sam. She turned and saw appellant standing over a body on the ground. She did not see a gun. It appeared as though "flashes" came from appellant. Lila ran away, and noticed a blue SUV near appellant and a person on the ground. Togiola was in the SUV.
Jacob could not identify the shooter but he did notice that he wore a blue bandana around his face. Jacob also noticed that the Thunderbird and the gray car were stopped near Sam.
When police responded to the scene, they found Sam lying on the ground, next to a pool of blood. They recovered five .40-caliber shell casings that had been fired from the same gun.
Sam had a fatal gunshot wound in his head and two gunshot wounds in his leg. The trajectory of one of his leg wounds suggested that the assailant fired the gun while Sam lay on the ground.
Appellant went to Utah on November 8, 2006. Police arrested him there on November 16.
Accomplice Evidence
On November 9, 2006, Long Beach Police Detective Daniel Mendoza interviewed Togiola about the shooting. Togiola told Mendoza that "he was a gangster and . . . didn't want to rat out his friends." Togiola did agree to "write something" for them if they gave him a piece of paper. Togiola wrote appellant's gang monikers, C.C. and Shaka, on the paper.
Later in the interview, Togiola admitted his involvement in the confrontation. Togiola was in Tina Hopoi's SUV during the confrontation. A Fam Bam member punched someone in appellant's Thunderbird. The caravan drove away, then returned as the Fam Bam group was crossing the street. Togiola yelled out to the Fam Bam group just before he heard five gunshots. Later that night, appellant told Togiola that he had shot Sam. He also showed Togiola the gun he used to shoot him.
At trial, Togiola denied his TFL membership. He also denied knowing appellant, or knowing about a shooting at Jordan High School on November 3, 2006. He further denied that he was in a Tahoe SUV with Tina Leka, or that he knew the occupants of the other cars involved in the shooting. Togiola admitted that he is called "Munchy," but claimed that no one except his family calls him that. Togiola admitted that he wrote appellant's name down on a piece of paper during his police interview but testified that the police forced him to do that.
Monique Moe and her former boyfriend, TFL member Malaki Hopoi, were known as Lady P-Znac and P-Znac. On November 3, 2006, Moe went to the football game with Yolanda Hopoi, and Yolanda's cousin, Nehu, in Yolanda's small black Corolla.
After the game, Moe, Nehu, and Nehu's boyfriend, Monei, were riding in the Corolla when Yolanda Hopoi drove it to meet appellant, who was driving a blue Thunderbird, and Tina Leka Hopoi, who was driving a blue Tahoe SUV. Togiola was in Tina Leka Hopoi 's SUV. "C Steady" was in appellant's Thunderbird. The SUV, Thunderbird, and Corolla moved in a caravan on Atlantic Avenue and stopped near a group of guys who were walking. The occupants of the SUV and Thunderbird started claiming TFL and "banging on" the walking group. Yolanda and Nehu (in the Corolla) also claimed TFL and yelled at the walking group. It yelled back and claimed Fam Bam.
When the detectives interviewed Moe, she told them that a male called, "No Name," in the walking group had punched someone in the Thunderbird and that appellant responded by throwing a "slurpy" at the assailant. At trial, Moe testified that one of the people on the sidewalk threw a slurpy at appellant. She also testified that she just sat there while others "exchanged words." (Before trial, Moe told detectives that she was "banging and claiming TFL" during the confrontation.)
After a few minutes, the caravan drove away from the walking group. It returned and approached the walking group, and resumed yelling and claiming TFL. The caravan left and returned a third time. Moe later told detectives that appellant left the car and shot Sam twice. Moe saw Sam on the ground. He appeared to be dead.
At trial, Moe initially testified that she saw appellant shoot Sam, but did not call the police because she was afraid. She also testified that she did not see appellant shoot Sam, before again testifying that she did see appellant shoot Sam.
Defense Case
Appellant belonged to TFL before the November 3rd confrontation with Fam Bam but he quit TFL before November 3rd. While in county jail, he boasted about being a "shot caller" in the gang in order to protect himself from attacks.
Appellant went to the Jordan High School football game in his stepfather's Thunderbird on November 3. He met briefly with Tina and Yolanda Hopoi after the game. He drove down Atlantic Avenue by himself and passed the front of the school. While he was stopped at a traffic signal on Atlantic Avenue, someone tried to reach into the Thunderbird and punch him. When the light turned green, appellant drove away, and went home. He did not circle back in the Thunderbird. He was always alone in the Thunderbird and he never entered an SUV or a Corolla. Appellant also testified that after the game, he spoke with Tina Leka Hopoi because he was having car trouble and he asked her to follow him in her Tahoe SUV in case his car stalled again. A lot of people were riding in her SUV, including Togiola.
Appellant did not have a gun or shoot Sam or Jacob that night. He did not tell Togiola that he shot anyone.
Appellant is a Mormon. He went to Utah to prepare to go on a two-year mission to "preach the gospel of the Church of the Latter Day Saints."
Prosecution Rebuttal
Mendoza and his partner, Robert Gonzalez, arrested and interviewed appellant in Utah. Appellant never mentioned that he went to Utah to prepare for a mission. Appellant changed his story often during the interview. He initially denied any knowledge of the November 3rd shooting. He admitted that he went to the football game but said that he went home after the third quarter. He also said that his cousin picked him up later in her Tahoe SUV and drove him to his girlfriend's house. At one point he admitted knowing about the shooting but claimed that C-Steady would admit that he was the shooter. Appellant admitted that he was a proud member of TFL with so much "influence" that he could get someone else to admit to the shooting.
DISCUSSION
Failure to Give Accomplice Instructions
Appellant argues and respondent concedes that the trial court should have instructed the jury with accomplice instructions regarding the testimony of Moe and Togiola. Appellant contends that the error was prejudicial We disagree.
The parties concur that the omitted instructions should have provided the jury with the definitions of an accomplice, accomplice testimony, and corroboration, as well as guidelines for evaluating accomplice testimony and its corroboration; and informed the jury that it must determine whether Moe and Togiola were accomplices. They further concur that such instructions should have directed the jury to view the testimony or statements of an accomplice with caution to the extent that they tended to incriminate appellant. (See CALJIC Nos. 3.11, 3.12, 3.18, 3.19.)
In assessing the harm from a failure to give accomplice instructions, we use the People v. Watson (1956) 46 Cal.2d 818, 846, reasonable probability standard. (People v. Lewis (2001) 26 Cal.4th 334, 371.) The error is harmless "[i]f there is ample evidence corroborating the accomplice's testimony. [Citation.]" (People v. Sully (1991) 53 Cal.3d 1195, 1228.) A defendant's own admissions, his conduct, and inferences from his testimony may provide the necessary corroborative evidence for accomplice testimony. (People v. Williams (1997) 16 Cal.4th 635, 680.)
In arguing that the failure to give accomplice instructions was prejudicial, appellant stresses that another jury deadlocked at his earlier trial in this case, and voted nine to three in favor of acquittal. Appellant did not testify at his first trial. He did testify at the second trial and the prosecution presented rebuttal evidence.
Appellant further stresses the inconsistency between Lila's trial testimony identifying him as the shooter and her July 2007 preliminary hearing testimony. Prior to the preliminary hearing, within days of the shooting, she identified appellant as the shooter twice--at school when questioned by a school police officer, and at the police station when questioned by police detectives. During the preliminary hearing, Lila testified that she could not identify the shooter. At trial, Lila testified that she was scared during the preliminary hearing because appellant knew where she and her family lived. After the preliminary hearing, the police department relocated Lila, outside Long Beach and Los Angeles County.
Ample evidence corroborates the accomplice testimony. Lila and Jacob provided corroboration of the events preceding the shooting, appellant's presence at the scene, and his involvement in the confrontation and the shooting. Moreover, their testimony did not provide the sole corroboration of the accomplice evidence. "[E]vidence of defendant's flight shortly after the murder was committed 'supports an inference of consciousness of guilt and constitutes an implied admission which may properly be considered as corroborative of an accomplice's testimony. [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 983.) Here, appellant went to Utah within a week of the murder. The trial court's failure to give accomplice instructions was harmless in view of the necessary corroborative evidence. (People v. Sully, supra, 53 Cal.3d at p. 1228.)
The trial court's accomplice instructional error is also harmless because the court instructed jurors with CALJIC No. 2.70 to view appellant's confessions and admissions with caution. One of the accomplice instructions would have directed the jury to view the testimony of an accomplice with caution to the extent that it tended to incriminate appellant. (See CALJIC No. 3.18.) The most incriminating accomplice testimony concerns appellant's out-of-court statements to Toglia: On the night of the murder, appellant told Toglia that he shot Samuel, and that he did so with the gun he then showed Toglia. CALJIC No. 2.70, with other instructions, including CALJIC Nos. 2.20 and 2.21, were sufficient to instruct the jury to view the accomplice testimony with care and caution. (See People v. Lewis, supra, 29 Cal.4th at p. 371.)
Having found that the court's failure to give accomplice instructions was harmless error, we reject appellant's claim that the error violated his federal constitutional rights to due process, a fair trial and to present a defense. (People v. Avila (2006) 38 Cal.4th 491, 571.)
Prosecutorial Misconduct and Ineffective Assistance of Counsel
We also reject appellant's claims that prejudicial misconduct denied him a fair trial and that trial counsel rendered ineffective assistance of counsel by failing to object to the prosecutor's misconduct. Even if trial counsel had objected and preserved the issue for review, we would affirm appellant's conviction because little, if any, misconduct occurred.
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citation.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 359.)
Here appellant contends that during the final portion of her closing argument, the prosecutor committed prejudicial misconduct by giving two examples that "diminish[ed] the proof beyond a reasonable doubt standard and lower[ed] the prosecution's burden of proof[.]" In the first analogy, the prosecutor analogized the evidence in the case to the building of a house on a vacant lot in a primarily residential neighborhood with some commercial buildings such as 7-Elevens and nail salons. The prosecutor argued that Lila was the foundation, Moe was the wood walls and siding, Togiola was the roof and shingles, and Jacob was the windows. The prosecutor argued that once all of the pieces were in place, any person driving down the street would know beyond a reasonable doubt that the building was a house, rather than a commercial building, even though that person might not know the answer to every question or know everything about the house such as whether its floors were hardwood or whether it contained a big-screen TV.
Later, using a picture of the Statue of Liberty that lacked its torch, the prosecutor offered the following analogy: "Now, the analogy that I gave you about the house is just something that I made up, but in looking over some of the slides that I have used in the past, I came across this particular slide. Now, looking at that slide, is there any reasonable doubt that that's the Statue of Liberty‌ Absolutely not. [¶] And I don't mean to insult your intelligence, clearly this is a simplistic slide, but I think it brings the point home. We know that's the Statue of Liberty, although there is something missing. [¶] And in this case, there may not be anything missing to some of you, and to some of you there may be something small missing. However, looking at the big picture, there is absolutely no reasonable doubt that that's the Statue of Liberty, even though you can't see the torch in her hand. [¶] . . . [¶] So when you go back in the back, and you say to yourself, I know the defendant was the person who committed the crime, the reason you know that is based on all of the evidence, not little inconsistencies, not little pieces of evidence, but all of the evidence. And I am confident that you will look at the complete picture and find the defendant is guilty of the murder of [Sam] Crichton and the attempted murder of [Jacob] Solia."
In arguing that the prosecutor's argument impermissibly diminished the proof beyond a reasonable doubt standard and lowered the prosecution's burden of proof, appellant relies in large part upon People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1264-1269. Katzenberger involved a PowerPoint presentation in which six of eight puzzle pieces were added one-by-one until an image of the Statue of Liberty was visible except the face and the torch. (Id. at p. 1264.) The prosecutor then argued (over objection) that everyone would know at this point beyond a reasonable doubt that it was a picture of the Statue of Liberty, even without the rest of the pieces. (Id. at p. 1265.) The Katzenberger court concluded that the use of a readily recognizable icon could suggest to a jury that it was proper to leap to a conclusion on a far smaller quantum of evidence than would satisfy the beyond a reasonable doubt standard. (Id. at pp. 1266-1267.) It also concluded that the use of a certain number of puzzle pieces also suggested an improper quantitative measure of the concept of reasonable doubt set at only 75 percent. (Id. at pp. 1267-1268.) The court then concluded that the misconduct was harmless because defense counsel vigorously disputed the prosecutor's analogy in his own closing argument, and the trial court told the jury that it would clarify the standard before it instructed the jury with the correct definition. (Id. at pp. 1268-1269.)
Here, the prosecutor's analogy lacked the improper quantitative measure of the beyond the reasonable doubt standard used in Katzenberger, where two of eight pieces, or 25 percent of a puzzle's pieces were missing. Even assuming that the house and Statue of Liberty analogies in this case were collectively improper, any misconduct was harmless. The prosecutor laid out the elements of the offense and identified the evidence that supported a conviction. Viewing the statements in context, there is no reasonable likelihood that the prosecutor's argument misled the jury into shifting or altering the burden of proof. (People v. Stevens (2007) 41 Cal.4th 182, 208.) In addition, the court instructed the jury on the correct definition of the beyond a reasonable doubt standard. It also told the jury to follow its instructions on the law. It is presumed that the jury understood and followed the instructions. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.) The alleged misconduct, if any, did not render the trial fundamentally unfair or deny appellant due process. (People v. Hill (1998) 17 Cal.4th 800, 819; People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Appellant further claims that counsel's failure to object to prosecutorial misconduct constitutes ineffective assistance of counsel. Having concluded that the alleged misconduct was harmless error, we reject the ineffective assistance of counsel claim. (People v. Mendoza (2000) 24 Cal.4th 130, 170.)
Finally, we reject appellant's argument that the "cumulative prejudice of the above errors requires reversal of [his] convictions." The errors were individually and collectively harmless. (See People v. Jenkins (2000) 22 Cal.4th 900, 1056.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.




COFFEE, J.


We concur:



GILBERT, P.J.



PERREN, J.

Mark C. Kim, Judge
Superior Court County of Los Angeles
______________________________

Eric Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Stacy S. Schwartz, Deputy Attorney General, for Plaintiff and Respondent.

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