Filed 12/18/18 P. v. Santisteven CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found Robert Santisteven guilty of first degree murder and found true the allegation that, in committing the murder, he personally and intentionally discharged a firearm in violation of Penal Code sections 12022.5, subdivision (a), and 12022.53, subdivision (d). Defendant argues on appeal that the trial court breached its sua sponte instructional duty by failing to give an accomplice jury instruction and abused its discretion by admitting jail notes. He also claims he is entitled to the benefit of the statutory change allowing the trial court discretion to strike the firearm enhancements and asks for his case to be remanded for resentencing. We will remand the matter for further consideration of the firearm enhancements and otherwise affirm the judgment.

I

Factual and Procedural Background

Police received a call about a “subject down” at a trailer park in Vallejo early in the morning on February 2, 2014. Vallejo Police Officer Waylon Boyce responded to the scene and met two people who directed him to a six-by-eight-foot shed that looked like a makeshift hangout spot. Boyce looked inside and saw Joseph Dyer’s body seated on the ground and leaning up against a couch. Dyer had a wound on the left side of his head and a few drops of blood on his shirt. The trailer home and shed where the murder took place belonged to Dyer’s mother.

The Vallejo Police Department recovered several items from the shed, including a tablet, laptop, printer, glass pipe with unknown liquid, a marijuana bong, four hard drives, and a digital video recorder (DVR). Police also found a video surveillance system with at least two cameras, one still in place and one that had apparently been removed leaving behind only wires.

Police investigators examined the DVR and found it contained footage from three cameras, which captured the back of the residence looking over the shed, the shed’s front walkway, and a partially obstructed view inside the shed. The camera with the view inside the shed captured Dyer’s murder. Footage from that camera showed that Dyer was sitting in a chair around 10:50 p.m. Defendant’s sister, Jayni Gover, joined soon thereafter. A couple of minutes later, defendant, wearing a baseball cap and gloves, walked into the shed and sat on the couch. Gover left a few minutes later. Two minutes later, Gregory Begrin entered and sat down on the couch next to defendant. Defendant, Dyer, and Begrin talked as they lit and passed around a methamphetamine pipe. Gover returned at around 11:01 p.m. for a few minutes before leaving again. Defendant got up about 15 minutes later and stood outside of the shed, his hat coming occasionally into view, while he and Begrin continued to talk. A minute or so later, Begrin got up and bent over, with his body away from Dyer. Suddenly, Dyer fell forward to his knees and crumbled, hitting the couch. Begrin got up and ran out of the shed. Gover and defendant returned to the shed six minutes after Dyer was shot and left a couple of minutes later. They returned about an hour and 20 minutes later and removed a computer, phone, monitor, and other items from the shed. The footage of Dyer’s murder did not show any other individuals present.

The jury returned a verdict of guilty and found true the firearms allegations. This appeal followed.

II

Discussion

A. The Trial Court Did Not Have a Sua Sponte Instructional Duty to Give the

Jury the Accomplice Instruction.

Defendant claims the trial court erred by failing to instruct the jury sua sponte that Alexandria Lee was an accomplice, thereby depriving him of his right to a jury trial and due process. We review de novo the trial court’s determination of applicable legal principles. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) We conclude the trial court had no sua sponte duty to give the accomplice instruction when Lee testified because she was not an accomplice.

1. Factual Background

Alexandria Lee was called as a prosecution witness at trial. Lee testified she had been dating defendant for about a month at the time of Dyer’s murder. Although Lee did not know Dyer, she had heard about him from defendant, who told her on two separate occasions that he wanted to kill Dyer. He told her once when they were walking back to the motel where Lee was staying; the other time was the night Lee bailed defendant out of jail on unrelated charges. Lee knew from defendant that he was mad at Dyer because Dyer had beat up defendant’s mother.

Lee learned about Dyer’s death in the early morning hours on February 2, 2014, from defendant’s mother. Defendant called Lee later the same day and asked her to pick up him and his sister, Jayni Gover, at a motel in Pinole. Lee arrived at the motel in the afternoon and noticed defendant appeared anxious. A few minutes later, defendant admitted to Lee that he shot and killed Dyer at Dyer’s mother’s trailer for “beating up his mom.” Defendant told Lee that he liked killing Dyer because “it felt like he watched his soul come out of his body” and described it as “too easy.” Defendant told Lee that Begrin was present when defendant shot Dyer. He also admitted returning to take “some of the stuff” from Dyer’s mother’s shed but did not explain why. While at the motel, Lee saw defendant throw a pair of gray gloves into a dumpster.

Defendant told Lee he wanted to speak with his mother, so Lee drove him and his sister to the motel in Vallejo where defendant’s mother was staying. Lee waited in the car while defendant spoke to his mother. Afterward, defendant wanted to look for Begrin, so defendant, Gover, and Lee left in Lee’s car to look for him. After a couple of hours, they drove to Pittsburg and got a room at a hotel, where defendant and Gover continued to talk about how defendant had killed Dyer.

Lee first told the Vallejo Police Department about defendant’s admissions on February 12, 2014, after she had fought with defendant. Lee admitted that her memory of the day she was driving defendant and his sister was poor because she used methamphetamine throughout that day. Lee has an extensive criminal history, including four convictions. Lee was in custody on separate charges in another county when she testified.

After Lee testified, the parties neither requested an accomplice jury instruction nor argued to the jury that Lee was an accomplice.

2. Analysis

Penal Code section 1111 states: “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.” This statute reflects the Legislature’s determination that “ ‘because of the reliability questions posed by’ ” accomplice testimony, such testimony “ ‘by itself is insufficient as a matter of law to support a conviction.’ ” (People v. Najera (2008) 43 Cal.4th 1132, 1137.)

“ ‘An accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant’ (§ 1111)” (People v. Tewksbury (1976) 15 Cal.3d 953, 960) and therefore shares the same “ ‘ “guilty knowledge and intent with regard to the commission of the crime.” ’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 369.) An accomplice, however, is not someone who is merely present during the crime, knows of the crime, or fails to attempt to prevent the crime. (People v. Moran (1974) 39 Cal.App.3d 398, 413.)

When there is substantial evidence that a witness is an accomplice, a trial court has a sua sponte duty to instruct a jury on the requirements of corroboration and to view with caution witness testimony presented by the prosecution. (People v. Boyer (2006) 38 Cal.4th 412, 466-467.) “Substantial evidence is ‘evidence sufficient to “deserve consideration by the jury,” not “whenever any evidence is presented, no matter how weak.” ’ ” (People v. Lewis, supra, 26 Cal.4th at p. 369, citing People v. Williams (1992) 4 Cal.4th 354, 361.) The evidence must be sufficient “to permit a jury to conclude by a preponderance of the evidence” that the witness was an accomplice. (People v. Hernandez (2003) 30 Cal.4th 835, 874, overturned on other grounds in People v. Riccardi (2012) 54 Cal.4th 758.) When substantial evidence exists that a witness is an accomplice (but neither the parties nor the court agree that the evidence suffices to instruct that a witness is an accomplice as a matter of law), the appropriate instruction is CALCRIM No. 334. (People v. Johnson (2016) 243 Cal.App.4th 1247, 1269.) However, when no evidence exists to infer that a witness is an accomplice, there is no issue to present to the jury and no accomplice instruction is warranted. (People v. Hoover (1974) 12 Cal.3d 875, 882-883.)

Here, defendant contends Lee was an accomplice because she heard defendant say twice that he was going to make Dyer regret beating up his mother, and that he was going to kill Dyer. Additionally, defendant insists Lee was an accomplice because she had once bailed defendant out of jail and because she had failed to report him to police before defendant carried out his threat to kill Dyer.

This is not substantial evidence that Lee was an accomplice. Lee’s knowledge of, and silence about, defendant’s intent to kill Dyer is not equivalent to her own intent to kill Dyer. Lee was not present when the killing took place or when defendant and his sister removed items from the shed. Lee did not even learn of Dyer’s murder until defendant’s mother told her about it. Finally, Lee’s failure to warn anyone about defendant’s threats does not make her an accomplice on the record here.

Even if we were to assume Lee was an accomplice, the failure to instruct on accomplice liability under Penal Code section 1111 was harmless. “A trial court’s failure to instruct on accomplice liability under [Penal Code] section 1111 is harmless if there is sufficient corroborating evidence in the record.” (People v. Lewis, supra, 26 Cal.4th at p. 370.) “ ‘The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice’s testimony, tend to connect the defendant with the crime.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 505, citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.)

Lee’s testimony is corroborated by the video of Dyer’s murder. The video corroborates Lee’s testimony that defendant told her Begrin was present when he killed Dyer. It is also consistent with her testimony that defendant went back to the shed after the murder to take some of the evidence. The video shows defendant wearing gloves, which explains why Lee saw defendant throwing away gloves when she picked him up at the motel in Pinole after the murder. The video also ties defendant to Dyer’s murder because it places him at the murder scene and impeaches his statements to police officers that he had not seen Dyer for a month and a half prior to his death. Corroborating evidence can include a defendant’s own lies showing a consciousness of guilt. (People v. Avila (2006) 38 Cal.4th 491, 563 [“Defendant’s initial attempt to conceal from the police his involvement in the activities culminating in the murders implied consciousness of guilt constituting corroborating evidence.”].)

In sum, the trial court did not err by failing to give an accomplice instruction when Lee testified for the simple reason she was not an accomplice. But even if the trial court erred, corroboration rendered any error harmless.

B. The Trial Court Did Not Err in Admitting the Jail Notes.

Defendant argues the court erred in admitting two notes, referred to as “kites,” exchanged between defendant and Robert Shank, a fellow jail inmate who testified at trial. Defendant contends that the kites were not properly authenticated and were not relevant. We review the admissibility of this evidence for abuse of discretion. (People v. Scott (2011) 52 Cal.4th 452, 491.)

1. 1. 1. 1. Background About Kites

Before trial commenced, defendant filed a motion in limine to exclude the two kites on the ground they were not self‑authenticating and Shank lacked the requisite familiarity with defendant’s handwriting to authenticate them. The trial court held an Evidence Code section 402[1] hearing at which Shank testified about his relationship with defendant and the kites they exchanged.

Robert Shank met defendant through a mutual friend when Shank and defendant were both incarcerated in Solano County jail in 2013. Shank learned that defendant was back in Solano County jail in 2014. Shank noticed the number “23” tattooed on defendant’s face, a change since Shank had last seen him.

Shank testified that while he and defendant were in custody they passed notes (“kites”). Shank saved two of the kites, which were eventually admitted into evidence. In the kite marked as exhibit 1,[2] defendant wrote, “it ain’t my first and will not be my last” and “I got a couple [murders] under my belt its [sic] just the first I’ve been caught for me slipping in my train of thought being a hot head.” Shank testified he received exhibit 1 by “fishing,” an elaborate system of rigging a string with a weight and then sliding the string underneath a cell door to catch a weighted string from another inmate.

In the kite marked as exhibit 2, defendant wrote he was not going to trial and was instead waiting “for them to give me a deal than [sic] Im [sic] on it.” This kite also referred to delaying defendant’s preliminary hearing, which Shank later testified was due to Dyer’s mother’s health. This kite was delivered to Shank via “mod” worker, a person in the jail who was permitted to go into different modules or areas in the Solano County jail.

Shank knew these kites were from defendant for several reasons. He was familiar with defendant’s handwriting from other kites defendant had sent him. Shank knew how defendant signed his name on the kites—“Little Rob” or “Little Mother Fucking Rob.” The number “23” appeared on both kites, the same number tattooed on defendant’s face.[3] Shank also knew exhibit 1 was from defendant because defendant asked him if he had disposed of it shortly after Shank received a kite with defendant’s name. At the conclusion of the hearing, the court denied the motion in limine because it was “clear that [Shank] had a prior correspondence relationship [with defendant], [and] they talked . . . .” The court also relied on Shank’s testimony about the “method and modalities” used to transmit kites.

After trial commenced, at a hearing outside the presence of the jury to review the admission of evidence before submitting the case to the jury, defense counsel again objected to the admission of exhibit 2, this time on the ground that it was not relevant even to authenticate defendant’s handwriting in exhibit 1. The trial court disagreed and found exhibit 2 to be relevant, explaining that it “corroborate[d] Mr. Shank’s testimony.” Both kites were admitted into evidence, with redactions to hide certain racial and ethnic references.

1. 1. 1. 2. Authentication

Section 1401 requires authentication of a writing before it may be received into evidence. “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (§ 1400.) Sections 1410 to 1421 outline myriad ways to authenticate a writing. Pertinent here, section 1416 permits a witness without handwriting expertise to authenticate a writing “if the court finds that he has personal knowledge of the handwriting of the supposed writer,” which may be acquired from “[h]aving seen a writing purporting to be in the handwriting of the supposed writer and upon which the supposed writer has acted or been charged.” (§ 1416, subd. (b).) A writing can also be authenticated by referencing matters that are unlikely to be known by anyone other than the purported author. (§ 1421.)

The Evidence Code does not exhaustively list all means of authentication. “Circumstantial evidence, content, and location are all valid means of authentication [citations].” (People v. Gibson (2001) 90 Cal.App.4th 371, 383.) There are “innumerable ways in which a document may be authenticated by circumstantial evidence,” (McAllister v. George (1977) 73 Cal.App.3d 258, 263) if the evidence is “sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Id. at p. 262; § 1400, subd. (a).) “ ‘As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document’s weight as evidence, not its admissibility.’ ” (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.)

In this case, we conclude Shank’s testimony was sufficient to authenticate the kites. Shank was familiar with defendant’s handwriting because they exchanged kites in person, through a third-party, or by “fishing.” Also, he had discussed one of the kites at issue with defendant in person.[4] Shank recognized defendant’s handwriting, his signature, and the number 23. The kites contain information that was unlikely to be known by anyone in Solano County jail other than the author, such as defendant’s upcoming preliminary hearing date.

1. 1. 1. 3. Relevance

Defendant argues that the court erred in admitting the kites because they were not relevant. Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of an action.” (§ 210.) “The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value.” (People v. Horning (2004) 34 Cal.4th 871, 900.) We conclude there was no error.

Defendant’s statements in exhibit 1 suggest that he had committed multiple murders and that Dyer’s murder was just the “first time [he’d] been caught.” As the prosecutor argued in closing, the statements in the kites, including “[a]s for my case . . . it ain’t my first, it will not be my last,” are admissions by the defendant that he killed Dyer. Exhibit 1 is therefore plainly relevant as defendant’s admission of guilt.[5]

Turning to exhibit 2, it was relevant because it corroborated Shank’s testimony about his relationship with defendant, which explained why defendant would tell him details about Dyer’s murder, like returning to the murder scene to remove evidence. As the prosecutor noted in closing argument, it corroborated Shank’s testimony that defendant was trying to delay his preliminary hearing in the hope that Dyer’s mother would die of cancer before then. It also contained statements about defendant’s desire to avoid trial, arguably showing that defendant was conscious of his guilt.[6] (§§ 210, 350, and 351.)

C. Limited Remand on A Sentencing Issue.

The jury found that defendant personally and intentionally discharged a firearm in murdering Dyer (Pen. Code, §§ 12022.5, subd. (a)(1), 12022.53, subd. (d)). As a result, the trial court imposed a mandatory enhancement of 25 years to life under section 12022.53, subdivision (d).[7] However, effective January 1, 2018, Senate Bill No. 620 amended Penal Code sections 12022.53, subdivision (h), and 12022.5, subdivision (c), providing trials courts with discretion “in the interest of justice pursuant to Penal Code Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section.” (Stats. 2017, ch. 682, § 2; Pen. Code, §§ 12022.5, subd. (c), and 12022.53, subd. (h).)

Defendant seeks a limited remand for resentencing because these amendments to the Penal Code apply retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.) The Attorney General agrees that a limited remand is warranted. We, too, agree that remand is appropriate for the court to exercise its discretion under amended Penal Code statutes as to whether to strike the enhancements.

III

Disposition

The matter is remanded to the trial court to exercise its discretion under Penal Code sections 12022.53, subdivision (h), and 12022.5, subdivision (c), and, if appropriate, to resentence defendant. In all other respects, the judgment is affirmed.

_________________________

Miller, J.

We concur:

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Kline, P.J.

_________________________

Stewart, J.

A150619, People v. Santisteven