Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050114546
Richman, J.
This criminal appeal arises from the murder of Sandra Kay Morris, who was shot to death on Thanksgiving Day 1989. Nearly 15 years later, a jury found defendant Milburn Lunghi guilty of the first degree murder of Morris with special circumstances and returned a verdict of life in prison without the possibility of parole. On appeal, defendant asserts that numerous errors occurred during the guilt phase of his trial and that the trial court erred when imposing a $200 parole revocation fine pursuant to Penal Code section 1202.45. We reject all of defendant’s claims, save for that relating to the parole revocation fine which, as the People concede, is well taken. We order the abstract of judgment amended to strike the parole revocation fine, and affirm the judgment in all other respects.
All subsequent references are to the Penal Code unless otherwise noted.
I. The Evidence At Trial
A. The Homicide Case Against Gerald Carpenter
On September 6, 1989, Paul Sisto was fatally stabbed outside J & M Liquors in San Pablo. During the investigation into his murder, the San Pablo police identified Gerald Carpenter, a friend of defendant, as a suspect in the homicide. A few days after the murder, the police executed a search warrant at a possible location for Carpenter, but instead of finding Carpenter, they found Sandra Morris and a methamphetamine lab. Morris was arrested at the scene.
During an interview with the police, Morris related a conversation between her and Carpenter in which she told him she had heard he stabbed someone. According to Morris, Carpenter admitted it, responding, “Oh well, it was just an Indian punk, what the fuck.”
On September 19, 1989, Carpenter was arrested for Sisto’s murder. Morris was subpoenaed to testify at an October 27, 1989 preliminary hearing in the murder case against him, but she failed to appear, and the preliminary hearing was postponed until November 9, 1989. No other witnesses had come forward, making Morris the sole witness able to implicate Carpenter.
On October 30, 1989, two Contra Costa County sheriff deputies, who were separately on patrol in Rodeo, were involved in stopping a vehicle for a traffic violation. The driver of the vehicle identified herself as Sandra Kay Gunter, although she denied having any identification. Upon searching the vehicle, the deputies located a California identification card bearing the name Sandra Morris. The driver then admitted her name was Sandra Kay Morris and claimed she lied about her name because she thought the police were seeking her as a witness in the case against Carpenter. Morris was arrested for possession of a controlled substance, giving false information to a police officer, and driving on a suspended or revoked license. While in custody, Morris was subpoenaed to appear at the November 9 preliminary hearing. She again failed to appear, however, so the court issued a bench warrant for her arrest, and the police issued a wanted bulletin.
B. The Evening Before Morris’s Murder
A few weeks later, on the evening of November 22, 1989, Morris invited Ruth Just, an admitted methamphetamine user, to go to the Regency Islander Motel in Vallejo, where drug use and sexual encounters were common. As Just explained it at trial, she and Morris had met a few weeks earlier, and they had seen each other two or three times prior to that evening. They walked to the motel, and when they got there, defendant was already in the room. There was a discussion about drugs, and Morris and defendant went into the bathroom where Morris was going to inject defendant with methamphetamine. Just heard defendant become “upset” and “disgusted” because Morris “wasn’t doing it right” and “it was taking too long.” Although Just wanted “to do some too, ” she became uncomfortable and left, leaving Morris and defendant in the motel room. Just never saw Morris again after that evening.
Later that night or early the next morning, Morris and defendant went to the mobile home of Tyler and Susan Dodge in West Pittsburg, where the Dodges were partying with Sivas Martinelli, a long-time friend of Tyler and the best man at their wedding. Martinelli, who had just gotten out of jail a few days prior, had met defendant before that evening and was dating his stepdaughter, Carlene Krueger. Martinelli had never met Morris before that night.
At the time of trial, the Dodges were divorced, and Susan was going by the name “Susan Kosa.”
West Pittsburg is now known as Bay Point.
Around that time, there were “a lot of drugs going on” at the mobile home, with upwards of 10 people coming and going at the trailer each day to do methamphetamine, much of which was supplied by Martinelli. The Dodges’ young son lived with them for part of the time, but then went to live with his grandparents because of his parents’ drug troubles. Susan was referred to as “Dr. Susan” because people often paid her with methamphetamine to “hit them, ” or inject them with methamphetamine when they could not do it themselves. On one occasion, she witnessed Tyler inject defendant in the trailer’s kitchen. According to Susan, defendant “was screaming and cussing at him, telling him that he better not miss, and kind of how to do it.”
Returning to the night of November 22, 1989, the Dodges, Martinelli, Morris, and defendant spent the night partying, “doing drugs and so forth.” Defendant and Morris seemed “very sociable, ” at one point sitting on the couch where Morris had her arms around him and at other times disappearing into the back room for hours, coming out, and then disappearing again. The party continued into the early hours of the following morning.
C. The Murder Of Sandra Morris
Martinelli was the sole witness as to what happened when defendant and Morris left the trailer. According to Martinelli, who testified under a grant of immunity, early in the morning of November 23, 1989, “maybe five, six in the morning—just before light, ”defendant asked Martinelli to follow him out to Rodeo, saying he needed a ride back. They left the trailer, with Morris driving her car, a black Ford Ranchero, and defendant in the passenger seat, and Martinelli following in his pickup truck, a light blue Ford Ranger. They drove out Port Chicago Highway and went “down towards the waterfront down by the railroad tracks through Shore Acres.” Defendant and Morris pulled over on the side of the road, both doors opened, and as Morris started to get out of the car, defendant shot her multiple times with a blue, snub nose .38 revolver. It was Martinelli’s recollection that defendant shot her over the top of the Ranchero. Defendant then got into Martinelli’s truck, saying something like, “she was a rat, ” or “she deserved what she got.”
Martinelli was “pretty much stunned, ” and as they drove away, he noticed that defendant was still holding the gun. Martinelli asked him to empty the shells out of the gun, which defendant did, throwing them out the window. Martinelli then drove to Crockett, where he dropped defendant off at “Bonesy’s” place. After he dropped defendant off, Martinelli realized the gun was on the seat next to him, so he threw it out the window into a heavily wooded canyon by Port Costa.
“Bonesy” or “Bonsey” was the nickname of a woman named Sherry. None of the witnesses at trial were able to recall her last name.
D. The Police Investigation
At 7:39 a.m. that morning, Contra Costa County Deputy Sheriff Lester Hyder was dispatched to a location on Port Chicago Highway in response to a suspicious circumstance call reporting a woman lying alongside a car. Two minutes later, when he arrived at the location, which he described as “pretty much cow pasture, ” he discovered a black Ford Ranchero pulled over on the shoulder of the road with the engine still running and a woman lying on her stomach alongside the car with her left foot still in the vehicle. He rolled her over to check for signs of life, but found none, although the body was still warm.
Deputy Sheriff James Hatchell was also called out to the scene. He did not recognize the victim, but he was soon joined by another deputy, who recognized her to be Kay Ford, also known as Sandra Morris. Hatchell recognized the name from the recent law enforcement bulletin looking for Morris. An autopsy determined that Morris died from multiple gunshot wounds, having suffered three gunshot wounds to her back and one over the left elbow. The wounds were consistent with gunshots fired at a distance of at least two feet. Morris was shot as she was exiting the driver’s side door with the shooter off to the right, either in the passenger seat or outside the vehicle. The autopsy also determined that Morris had ingested methamphetamine shortly before her death.
Shortly following the murder, Hatchell interviewed two individuals who drove by the murder scene at the time (or shortly after) defendant shot Morris. Herman Ortiz was driving along Port Chicago Highway that morning on his way to work, when he saw a pickup truck and what he thought was an El Camino stopped on the shoulder. When shown a photograph of Morris’s black Ranchero at trial, Ortiz said that it looked similar to the vehicle he saw. He described the pickup as a Ford “maybe grayish, bluish, light bluish” with a camper. As far as he could see, no one was in the pickup.
As Ortiz described it to Hatchell, he saw a body or a person fall out of the driver’s side and land on his or her stomach with one foot still in the vehicle. He just thought “somebody was drunk, passed out, or something like that.” After he drove by, he thought he saw a person duck down on the passenger side in his rear view mirror. When interviewed by Hatchell, Ortiz described the person as a white male in his 40s or 50s with a full bushy beard and slightly balding on top, and at trial, he described the person as a white, bald man with a beard in his 40s or 50s. He estimated that he drove by the vehicles at approximately 7:30 a.m.
The police also interviewed Bobby Gene Estes, who reported that he was driving along Port Chicago Highway that morning when he noticed a black Ranchero with the driver’s door open, the engine running, and a woman lying on the ground bleeding.
On the ground next to the driver’s compartment of the vehicle, the police recovered Morris’s purse, which contained a receipt dated November 22, 1989 from the Regency Islander Motel. On the passenger seat of the vehicle, they found a key to room 126. Later that same day, Hatchell interviewed Dipak Mackrani, the manager on duty at the Regency Islander Motel the prior evening, who confirmed that a woman checked into room 126 that night. He recognized a photograph of Morris as the same person who registered and recalled that she had been accompanied by a white male and had a black vehicle. He described her companion as thin with “longish” hair. At trial, Mackrani recalled that a woman checked into room 126 the night of November 22, 1989, but he lacked any independent recollection of her companion or her vehicle, and did not recall having previously identified a photo of Morris as the woman who checked into the motel.
On the driver’s side floorboard of Morris’s car, the police found a receipt from Abdul’s Food & Liquor, a store not far from the murder scene. The receipt showed that at 7:26 a.m. that morning, just minutes before the first deputy was called to the scene, someone had purchased a pack of Camel regular cigarettes, a pack of Kool King cigarettes, and a can of soda, for which the buyer had tendered a five dollar bill and had received 45 cents change.
Items consistent with the receipt were found in Morris’s car. A pack of unopened Kool cigarettes, an unopened can of Coca-Cola, an empty carton of Kool cigarettes, and a quarter and two dimes were found on a seat cushion in the vehicle. A pack of Camel cigarettes containing 18 cigarettes was found on the passenger seat, and a Camel cigarette that had not been smoked was lying separately from the pack. In the ashtray, there were several unburned cigarettes, including ten filter-tipped cigarettes and three partially burned cigarettes with no filter, two of which had the printing “Camel” on them. Tests conducted in 2000 determined that DNA found on the paper from two of the Camel non-filter cigarette butts found in the ashtray was consistent with defendant’s, with a random match probability of one in eight hundred and fifty trillion Caucasians. Morris and Martinelli were both eliminated as the primary contributor of the DNA.
On the passenger side floorboard was an ice bucket identical to the ice buckets used at the Regency Islander motel. Defendant’s thumb print was found on the ice bucket. On December 17, 1989, after Hatchell learned that defendant’s fingerprint was found on the ice bucket, he contacted defendant about Morris’s death. Defendant responded that the name Sandra Morris did not mean anything to him and he knew nothing about her murder. Hatchell showed defendant a photograph of Morris, and defendant denied recognizing her. Defendant also claimed to be unfamiliar with Morris’s black Ford Ranchero. Hatchell asked defendant if he had ever stayed at the Regency Islander Motel, and defendant claimed that the only time he had ever stayed there was just two days prior to the interview. Defendant told Hatchell that he smoked unfiltered Camels.
Hatchell interviewed defendant again on July 18, 1990, and again defendant denied knowing Morris or being familiar with her vehicle. He also denied that the name Ruth meant anything to him. When asked how his fingerprints got inside Morris’s car, he had no explanation.
The day after the murder, Hatchell also interviewed Leo Del Roberton, Morris’s boyfriend at the time of her death, who described having witnessed an incident about two weeks prior to Morris’s death at the Redwood Street Motel 6 in Vallejo. He drove up to the parking lot and saw defendant leading Morris to a vehicle. When Morris saw Roberton drive up, she got in his car instead and they drove off.
E. Martinelli’s Possession Of A Gun Similar To The Murder Weapon
On February 7, 1990, Martinelli was a passenger in a vehicle being driven by Vance Kichen when they were stopped by the police, who conducted a search and found a gun on the floorboard or under the seat and bullets in Martinelli’s jacket pocket and boots. The gun was a snub nose .38 revolver similar to the weapon used to shoot Sandra Morris. Martinelli was arrested for possession of methamphetamine for sale and weapon possession, although he denied the drugs and weapon were his, explaining that as the police were stopping the vehicle, Kichen pulled out the gun and drugs and tossed them to Martinelli, who ended up taking the rap for them. At trial, Martinelli denied that the weapon, which was destroyed by the police, was the weapon used to murder Morris.
F. The Beating Of Sivas Martinelli
On the night before Easter Sunday in 1990, Martinelli was severely beaten. After the beating, his brother, Eugene Martinelli, drove him to Arizona to “dry him out” for three or four months, after which they returned to California. During the drive to Arizona, Martinelli told his brother that he had witnessed a murder.
Later that year, having recuperated from the beating, Martinelli returned from Arizona and was living in Berkeley with his brother when he received a telephone call from defendant. He was concerned that defendant had located him.
G. The Arrest Of Defendant For Morris’s Murder
Morris’s homicide remained unsolved for ten years, but in mid-1999, Deputy Sheriff Roxane Gruenheid took over investigation of the case when she became aware of new leads that identified Martinelli as a suspect. On September 28, 1999, Martinelli was arrested for the murder. During his first interviews with the police on September 28 and 29, 1999, Martinelli told the police that defendant had shot Morris and that he was present when it happened. He also told police that defendant took the murder weapon with him, a claim he repeated during a third interview on October 1, 1999. Later that same day, however, after speaking with his brother and praying, he had a change of heart and contacted Gruenheid to tell her he had new information about the murder weapon. During the ensuing interview, Martinelli told the police for the first time that he threw away the gun, which he said he had not told them earlier because he did not want to involve himself. Martinelli showed Gruenheid a location where he said he threw the gun, but a search of the area failed to uncover the weapon.
At trial, Martinelli denied knowing in advance that defendant was going to shoot Morris and claimed that if he had known, he would not have followed him. However, Tyler Dodge testified that at some point before Morris was murdered, Martinelli made comments to him along the lines of “you won’t ever see her again” or “she won’t be around any more.” Martinelli denied ever making such a statement or that he himself shot Morris.
On September 13, 2001, defendant was charged with the murder of Sandra Morris.
H. The Jailhouse Informants
The prosecution offered testimony from two jailhouse informants who were incarcerated with defendant at different times. Robert Farmer testified that while he was incarcerated with defendant in October 1994, he asked defendant what happened to the witness against Gerald Carpenter, and defendant admitted that he shot her. Farmer described defendant’s confession as follows: “He said he—they were driving on Port Chicago, and he—he had his car parked out there, and he told her that’s—‘I think that’s my car, ’ and she stopped. He got out, came back, got in the car, and he said, ‘Yeah, that’s my car.’ He pulled the gun out, and he shot her three times.” According to Farmer, defendant admitted that he shot Morris because she was a witness against Carpenter. Farmer acknowledged on cross-examination that at the time defendant admitted murdering Morris, he (Farmer) still had ten or ten and a half years remaining on a sentence for carjacking and that he subsequently offered to help out the district attorney with information on the Morris case in exchange for leniency, although nothing had come of it. Farmer also admitted that at the time of trial, he was in custody on a parole violation for which he had not yet been charged and if he was prosecuted for the new charges, he would face 25 years to life as a third strike offender. It was his hope that by testifying, he would avoid prosecution or receive consideration in terms of his sentence on the new charges.
Matin Moghadam, the second informant, testified that in April 2000, he and defendant were both in custody at the Martinez Detention Facility. According to Moghadam, when he and defendant got into an argument, defendant threatened him, “Go ask people around here, I’ve killed people before.”
I. The Defense
By attacking Martinelli’s credibility and highlighting inconsistencies in his testimony, the defense sought to persuade the jury that Martinelli, not defendant, had killed Sandra Morris.
The defense challenged testimony that put defendant and Morris together the night before and morning of her murder. On direct examination, Ruth Just testified that Morris was the woman with her and defendant at the Regency Islander Motel on the night of November 22, 1989. On cross-examination, however, Just admitted that a few days prior, when a police detective showed her photos of Morris, she had been unable to identify Morris as the woman with defendant that evening.
The police never interviewed Just in the time period between the murder and the 1992 closure of the investigation, and in fact, neither the district attorney nor defense counsel had been able to locate Just until shortly before trial, when she was finally located by the investigator for the prosecution.
The defense also challenged the evidence indicating that Morris was the woman with defendant at the Dodge trailer. When shown photos of Morris at trial, Tyler Dodge did not recognize her as the woman at the trailer with defendant, whom he described as “a lot younger and more attractive” than the woman in the photos. Likewise, Susan denied that the woman in the photos was the woman at the trailer that night, noting that the woman “was at least maybe in her forties . . . and with dark hair” and “just looked like your typical drug addict.” Martinelli was similarly unable at trial to positively identify a photo of Morris as the woman defendant shot that evening.
II. Procedural Background
By information filed September 13, 2001, defendant was charged with the murder of Sandra Kay Morris. The information alleged a personal use of firearm enhancement pursuant to section 12022.5, subdivision (a)(1) and special circumstances pursuant to section 190.2, subdivision (a)(10) (murder of a witness to a crime who was intentionally killed to prevent his or her testimony). The information also alleged three prior serious felony convictions within the meaning of section 667, subdivision (a)(1) and four prior prison terms within the meaning of section 667.5, subdivision (b). On January 23, 2004, the prosecution filed notice of its intent to seek the death penalty.
Jury selection began on October 5, 2004 before the Honorable Richard E. Arnason. On October 20, 2004, testimony commenced, and on November 2, 2004, the case was submitted to the jury. On November 4, 2004, the jury returned a verdict of murder in the first degree, finding true the special circumstance and personal firearm use allegations. Following a seven-day trial on the penalty phase, the jury returned a verdict of life in prison without the possibility of parole.
On March 10, 2005, defendant moved for a new trial on the grounds that: (1) the prosecution violated his right to due process by knowingly permitting Martinelli to present false testimony and by making a misleading statement during closing argument; (2) the trial court erred by admitting testimony by Martinelli that he was testifying pursuant to a grant of immunity and testimony by Ruth Just and Susan Dodge of defendant’s methamphetamine use; and (3) the trial court erred by giving aiding-and-abetting, accomplice, and “confusing” manslaughter instructions and by failing to give complete instructions relating to intoxication.
On April 1, 2005, the court denied defendant’s new trial motion and sentenced him to life in prison without the possibility of parole, to run consecutive to an unrelated life sentence he was already serving. Defendant also received five years for each of the three prior serious felony enhancements, and two years for the personal firearm use enhancement, for a seventeen-year determinate sentence to run consecutively to his life sentence. The court also ordered defendant to pay restitution and imposed a $200 parole revocation fine pursuant to section 1202.45.
Defendant filed a timely notice of appeal.
III. Contentions On Appeal
In this appeal, defendant asserts that the following reversible errors occurred during the guilt phase of his trial: (1) the prosecution knowingly allowed Martinelli to falsely testify that he had no advance knowledge of defendant’s intent to murder Morris, which testimony contradicted prior statements during police interviews that defendant had told him he was “gonna off this bitch”; (2) the trial court had a sua sponte duty to instruct the jury that Martinelli was an accomplice as a matter of law, which would have required corroboration of his testimony pursuant to section 1111, or, alternatively, his counsel provided ineffective assistance by failing to request that the jury be read the accomplice as a matter of law instruction; (3) there was insufficient evidence corroborating Martinelli’s testimony as an accomplice; (4) the prosecution committed misconduct during closing argument on two occasions, first suggesting that defendant’s statement to Matin Moghadam that he had “killed people before” must have referred to Morris, when the prosecution knew it could have referred to a 1968 vehicular manslaughter conviction which was kept from the jury during the guilt phase, and, second, by urging the jury to accept Martinelli’s false testimony that he had no advance knowledge of defendant’s intent to murder Morris; (5) the trial court erred in admitting testimony by Ruth Just and Susan Dodge of defendant’s methamphetamine use and testimony by Robert Farmer and Matin Moghadam, the two so-called jailhouse “snitches”; and (6) the ten-year preaccusation delay violated defendant’s right to due process. Defendant also contends that the cumulative error from these alleged errors requires reversal. Finally, defendant contends that the trial court improperly imposed a $200 parole revocation fine.
With the exception of the claim concerning the parole revocation fine, we reject each of these contentions in turn.
A. The Prosecution Did Not Commit Misconduct By Knowingly Using False Testimony
Defendant objects that at trial, the prosecution knowingly allowed Martinelli to falsely testify that he had no knowledge prior to Morris’s murder that defendant was going to kill her. On direct examination, Martinelli testified he left the Dodges’ trailer because defendant said he needed a ride and wanted Martinelli to follow him. When the prosecution then queried, “Do you recall any conversation that you may have had with Mel Lunghi prior to leaving the trailer?” Martinelli responded, “No, other than that he asked me to follow him.” On redirect, Martinelli denied having any advance knowledge that defendant was going to kill Morris. Defendant argues that this testimony was false, and the prosecution knew it was false, because during police interviews on September 29, 1999, October 1, 1999, and July 10, 2000, Martinelli admitted advance knowledge of defendant’s intent to kill Morris.
Defendant cites a litany of authority on the issue of prosecutorial use of false testimony, including Napue v. Illinois (1959) 360 U.S. 264, 269, in which the United States Supreme Court stated: “[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. [Citations.] The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. [Citations.] [¶] The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” Defendant also submits that “ ‘[t]he government’s duty to correct perjury by its own witnesses is not discharged merely because the defense counsel knows, and the jury may figure out, that the testimony is false.’ ” While we agree with defendant’s statement of the law, we disagree that it is applicable in his case.
Preliminarily, as the People argue, defendant’s contention relies on police interviews that were not made part of the appellate record. Cavalierly dismissing the People’s argument as “disingenuous, ” defendant responds that his pretrial motion for an order dismissing the information or, in the alternative, for the exclusion of testimony is a part of the record, and that it contained the actual quotations from the interviews. The motion on which defendant relies, however, did not append an official transcript of the interviews or even the recordings of the interviews themselves but rather contained typed excerpts entitled “Examples from Reporter’s Transcript of interviews.” These passages are devoid of any authentication and do not constitute evidence.
In reply, defendant asserts that the record is adequate but nonetheless attempts to remedy the defect by indicating that he “will request that the video and audio tapes of the Martinelli police interviews be transmitted with [sic] this court pursuant to [California Rule of Court, rule] [8.224(c)], concurrently with the filing of this reply brief.” We note that on July 26, 2006, People’s Exhibit 63A, “Transcript of Videotaped Proceedings, Interview with Sivas Martinelli” on an unspecified date, was lodged with the Court. We have received no other materials bearing on this issue.
In any case, this deficiency is immaterial since, even accepting defendant’s “examples” of the interviews as accurate, we reject his claim on the merits.
According to defendant’s examples of the interviews, when Martinelli was first interviewed by the police on September 28, 1999, he claimed that defendant had merely said, “Come on, let’s go, ” and he wanted Martinelli to follow him. In another interview the following day, Martinelli initially denied that defendant had told him what was going to happen to Morris. However, when pressed by the police as to whether he was lying, he began to equivocate:
“A: It’s like, you know what, I know he didn’t tell me, but like I feel like he told me now, you know what I mean.
“[¶] . . . [¶] A: —I’m scared about it because I don’t want to say the wrong thing.
“A: Carlene told them that I did know before. That’s what freaks me out too, you know.
“Q: Here’s what
“A: And now I’m thinking did this guy tell me or did he not tell me, you know what I mean. Now I’m getting to that point
“Q: Uh-huh.
“A: —you know. And now I don’t know anymore, you now. And it’s like I’m freaking out about this, ‘cause I don’t think this guy told me because
“Q: Uh-huh.
“A: —you know, if he told me, I don’t think I’m gonna go follow this guy, you know, even back then
“Q: Uh-huh.
“A: —you know. But then, you know, then again did he tell me and I went along with it because I was scared this guy might screw me over, too, if I didn’t follow him or I don’t know what to think anymore now—.”
Later during that same interview, Martinelli said, “I don’t think he told me, ” and subsequently responded, “No, ” when asked, “Did you know he was gonna kill her?”
During an interview on October 1, 1999, Martinelli was again asked whether he had prior knowledge of defendant’s intent to kill Morris:
“Q: But what happened is you heard him say like ‘Let’s go off this bitch, ’ but you didn’t think he was gonna do it until he did it?
“A: I didn’t think he even said that, you know what I mean?
“[¶] . . . [¶] A: I heard him say, ‘Let’s go, Sivas.’ And then he—at that time he was about—see, he was jamming.
“[¶] . . . [¶] A: What I’m trying to say is he was in front. I mean I heard him from the back as he finished what he was saying.
“Q: And which was something like?
“A: Something like, ‘I’m gonna off this bitch.’
“[¶] . . . [¶] A: —you know what I mean. But I know he didn’t say I’m gonna kill this bitch, because I would have heard that for sure—.”
On July 10, 2000, more than nine months after the previous interviews and after Martinelli had been granted immunity, he was again questioned by the police and engaged in the following exchange:
“Q: No, but what I’m—I don’t care what he said. What I’m—what I’m trying to eliminate here or confirm is did you and Mel talk about killing her. Did he tell you what he wanted to do?
“A: No. “Q: Did he tell you I want you to follow me or—if he did—.
“A: He did tell me to follow him—.
“Q: Okay.
“A: —you know what I mean.
“Q: Why?
“A: Who knows. He said, “Come follow me, come on, let’s go, ” so I did.
“Q: And he said, I’m gonna off this bitch.
“A: He said he was gonna off this bitch.
“Q: Yeah.
“A: I have to say that. “Q: Okay.
“A: So I knew. Let’s say I knew. So that means I helped him—.
“Q: No.
“A. —in a sense.
“Q: No.
“A: So we should say yes—.
“Q: What do you mean?
“A: —in a sense. I knew he was gonna do it, right?
“Q: Yeah. [¶] So you did know he was gonna do it, you did know he was gonna do it, he just said that he was—. “A: He said—you know, who knows what he’s gonna do a hundred percent—.
“Q: Yeah.
“A: —see what I mean.
“Q: He told you I’m gonna off this bitch, follow me.
“A: Yeah, let’s say that.
“Q: Well, I don’t want to say it if it’s not true.
“A: I don’t know what he said exactly. I know that he said follow me.
“Q: Something to that effect.
“A: To that effect.
“[¶] . . . [¶] A: And I told him to follow—he told me to follow him.
“Q: All right. So moments before this thing went down, he says, ‘Hey, I’m gonna off this bitch, follow me, ’ or words to that effect?
“A: Yeah.”
We set forth these passages of the Martinelli police interviews—from the “examples” defendant included in his motion to dismiss—in such great detail because when read in their totality, as compared to the discrete responses taken out of context as defendant sets them forth, they portray a witness who was uncertain of what defendant told him prior to the Morris murder. Martinelli did not definitively state that defendant told him in advance of his intent to shoot Morris, many times reverting to his original position that he had no prior knowledge and other times indicating that defendant told him he was “gonna off this bitch” right before they left the Dodge trailer. In light of this equivocation, it cannot be said that Martinelli presented false testimony at trial when he denied having any communication with defendant before leaving the trailer other than defendant telling Martinelli to follow him. And it necessarily follows that the prosecution did not knowingly allow Martinelli to present false testimony.
The California Supreme Court recently considered the issue of prosecutorial use of false testimony in People v. Harrison (2005) 35 Cal.4th 208 (Harrison), a case cited by both parties here. In that case, during the investigation of a double homicide, a purported witness to the murders implicated the defendant during a police interview, claiming that he was present when defendant committed the murders and describing the killings in detail. (Id. at pp. 222-223, 241.) He later told an investigator with the district attorney’s office that he was in fact not present and had no knowledge of the murders. (Id. at pp. 223, 241.) The prosecution knew the witness had recanted, yet during cross-examination of the police officer who took the initial statement, the prosecutor elicited the detailed description of the murders originally given by the witness. (Id. at p. 241.)
On appeal, the defendant contended the prosecutor engaged in misconduct by eliciting this description even though he knew that the witness later recanted his statements. (Harrison, supra, 35 Cal.4th at p. 241.) The court rejected defendant’s argument, finding there to be no misconduct. (Id. at p. 242.) The court stated, “ ‘Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents . . . .’ [Citation.] But the prosecutor here did not know that [the witness’s] initial statement to the police was false; he merely suspected that was the case. When, as here, the prosecution has doubts as to the truth of a statement it intends to present at trial, it must disclose to the defense any material evidence suggesting that the statement in question is false. But, notwithstanding those doubts, the prosecutor may still present the statement to the jury . . . .” (Ibid.)
The court also found that defendant failed to preserve this issue for appeal because he did not object to that testimony at trial. (Harrison, supra, 35 Cal.4th at pp. 241-242.) This holding is equally applicable here since defense counsel made no objection when the prosecutor questioned Martinelli.
If the prosecutor in Harrison did not commit misconduct despite a suspicion that the statement to the police was false, then a fortiori the prosecutor here did not commit misconduct, since there is no indication in the record that the prosecutor even suspected Martinelli’s denials to the police of any foreknowledge of defendant’s plan to murder Morris to be false. And even if the prosecutor had been suspicious, he complied with Harrison by providing Martinelli’s statements to the defense.
Defendant attempts to distinguish Harrison by arguing that “[h]ere, unlike Harrison, the record is uncontroverted that the prosecution had actual knowledge that Martinelli gave false testimony when he denied foreknowledge of the execution.” As discussed above, this assertion is simply incorrect because Martinelli’s statements were equivocal on this issue.
Finally, even if the prosecution failed to correct testimony that it knew was false, which it did not, any such error would have been harmless. (See In re Wright (1978) 78 Cal.App.3d 788, 807-811.) “A prosecutor’s misconduct violates the Fourteenth Amendment to the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct ‘that does not render a criminal trial fundamentally unfair’ violates California law ‘only if it involves “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (Harrison, supra, 35 Cal.4th at p. 242.)
Here, even if there were any prosecutorial misconduct, it neither infected the trial with unfairness nor involved the use of deceptive or reprehensible methods. If indeed defendant told Martinelli in advance of his intent to kill Morris, such evidence would only have served to further incriminate defendant and undercut the defense’s position that defendant did not commit the murder. During cross-examination of Martinelli, defense counsel questioned, “And did you—were you told something, did Mr. Lunghi say something to you before you left the [] Dodge residence?” Martinelli responded, “I don’t remember exactly what was said, but he did ask me to follow him.” Defense counsel could then have used what defendant now claims to be Martinelli’s inconsistent statements to the police to impeach him, and the failure to do so suggests a deliberate, strategic determination to keep those statements from the jury since they were injurious to the defense. We cannot now second-guess that strategy, nor do we do we see how such a strategy could have prejudiced defendant.
Defendant argues that the prosecution’s “failure to correct knowingly false testimony that [Martinelli] did not know of the plan to execute Morris until after the shooting would have materially altered his credibility in the eyes of the jury” such that “it is . . . reasonably probable that the error affected the verdict.” We reject such argument for two reasons.
First, this assertion is based upon defendant’s claim that “[t]he prosecution’s entire case rested upon Martinelli’s credibility, ” a claim that is simply not accurate. While Martinelli’s testimony was no doubt incriminating, there was significant additional evidence pointing to defendant’s guilt. Defendant was friends with Gerald Carpenter, and Morris had been subpoenaed to testify at a preliminary hearing in the murder case against Carpenter. Ruth Just testified that she had been at the Regency Islander Motel with defendant and Morris the night before Morris’s death. This testimony contradicted defendant’s statement to the police that he did not know Morris and had never been to the motel prior to a few weeks after the murder, and it placed defendant and Morris together shortly before her death. Defendant’s thumbprint was found on the ice bucket recovered from Morris’s car, and the ice bucket was identical to those used at the Regency Islander Motel, which corroborates Just’s testimony that Morris and defendant were together the night before Morris’s death. Defendant admitted to Deputy Hatchell that he smoked unfiltered Camel cigarettes, and his DNA matched that found on Camel cigarette papers found in Morris’s car. At least one of those cigarettes had likely been purchased at Abdul’s Food & Liquor just moments before Morris’s execution. Robert Farmer testified that defendant admitted killing Morris because she was going to testify against Carpenter, and Matin Moghadam testified that defendant threatened that he had “killed people before.” Finally, Del Roberton told Hatchell in an interview after the murder that he had seen defendant and Morris together in a parking lot, which again contradicted defendant’s denial that he knew Morris. In light of this evidence pointing to defendant’s guilt, it is incorrect that the prosecution’s entire case depended on Martinelli’s credibility.
Second, we fail to see how such evidence would have impacted the jury’s estimation of Martinelli’s credibility since he was already subject to questioning that thoroughly challenged his credibility. For example, defense counsel vigorously cross-examined Martinelli at length about his inconsistent statements to the police concerning what happened to the murder weapon, getting Martinelli to admit that he lied during multiple police interviews when he initially told them defendant took the weapon with him. The jury also learned that Martinelli had multiple convictions for possession of weapons, including a sawed-off shotgun, a billy club, and a gun with the serial number removed, had an arrest for possession of methamphetamine for sale, and had served multiple sentences for these offenses. The jury also learned that Martinelli was a drug dealer who was himself heavily into drugs and was under the influence of methamphetamine at the time he witnessed Morris’s execution. The defense also brought to light numerous other inconsistencies in Martinelli’s testimony, such as his testimony that they did not stop at a convenience store on the way to the scene of Morris’s murder, when the receipt and contents of Morris’s car showed otherwise, his testimony that defendant shot Morris over the top of the car, which was contrary to the forensic evidence showing that she was shot through the car from either someone in the passenger seat or just outside the vehicle, and his testimony that Morris’s car was yellow or white, when it was in fact black. We fail to see how Martinelli’s equivocal statements about his advance knowledge of defendant’s intent to murder Morris would have further impeached his credibility.
B. The Trial Court Properly Instructed The Jury On The Law Of Accomplices
Section 1111 requires corroboration of accomplice testimony, providing in pertinent part that “[a] conviction cannot be had upon the testimony of an accomplice unless it is corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . .” The trial court read CALJIC No. 3.19, which provided, “You must determine whether the witness Sivas Martinelli was an accomplice as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that Sivas Martinelli was an accomplice in the crime charged against the defendant.” Defendant contends this instruction created prejudicial error because the jury should have been instructed, either by the court sua sponte or at defense counsel’s request, that Martinelli was an accomplice as a matter of law pursuant to CALJIC No. 3.16, in which case his testimony would have required corroboration pursuant to section 1111. We disagree.
Section 1111 provides in its entirety: “A conviction cannot be had upon the testimony of an accomplice unless it is 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. [¶] An accomplice is hereby defined as one who 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.”
CALJIC 3.16 [Witness Accomplice As Matter Of Law] provides: “If the crime of _________ was committed by anyone, the witness ________ was an accomplice as a matter of law and [his] [her] testimony is subject to the rule requiring corroboration.”
1. The Trial Court Did Not Have A Sua Sponte Duty To Instruct The Jury That Martinelli Was An Accomplice As A Matter Of Law
“ ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing a case are those principles closely and openly connected with the facts before the court, which are necessary for the jury’s understanding of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 715, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Breverman (1998) 19 Cal.4th 142, 164-165; People v. Flannel (1979) 25 Cal.3d. 668, 678.) “Whether a person is an accomplice within the meaning of section 1111 presents a factual question for the jury ‘unless the evidence permits only a single inference.’ [Citation.] Thus, a court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness’s criminal culpability are ‘clear and undisputed.’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 635, 679; accord People v. Fauber (1992) 2 Cal.4th 792, 834 [“Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom.”].)
As a preliminary matter, we reject defendant’s claim that the prosecution conceded and the trial court found that Martinelli was an accomplice as a matter of law. To be sure, during the hearing on jury instructions, there was extensive discussion on the issue of accomplice instructions. Counsel for defendant objected to the court giving the jury any instructions dealing with accomplices, namely CALJIC Nos. 3.0, 3.1, 3.10, 3.11, 3.12, 3.13, 3.14, 3.16, 3.18, and 3.19, arguing that the theory that Martinelli was defendant’s accomplice was “totally inconsistent” with the defense that Martinelli was in fact the killer. The prosecution agreed with defense counsel that the accomplice instructions were inapplicable. The court expressed surprise at defendant’s position on this issue, and then listened to argument from the defense and the prosecution as to why the jury should not be instructed on CALJIC No. 3.16, which would have informed the jury that Martinelli was defendant’s accomplice as a matter of law and that his testimony was subject to the rules requiring corroboration. Ultimately, the trial court agreed to forego CALJIC No. 3.16, instead instructing the jury on CALJIC No. 3.19, which left Martinelli’s status as an accomplice up to the jury. Nowhere does the record indicate that the trial court concluded Martinelli was an accomplice as a matter of law.
More importantly, it was not “clear and undisputed” that Martinelli was defendant’s accomplice. The jury was instructed, per CALJIC No. 3.10, that “[a]n accomplice is a person who was subject to prosecution for the identical offense charged against the defendant on trial by reason of aiding and abetting.” CALJIC 3.01, which the trial court also read to the jury, defined aiding and abetting as follows: “A person aids and abets the commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”
As noted above, Martinelli denied having advance knowledge of defendant’s intent to kill Morris. And the defense did not cross-examine him as to his statements to the police that defendant told him beforehand he was “gonna off that bitch” because that testimony was inconsistent with the defense theory that Martinelli was the killer. The only evidence presented at trial suggesting Martinelli knew ahead of time that defendant was going to execute Morris was Tyler Dodge’s testimony that Martinelli told him something like, “You won’t ever see her again, ” or, “She won’t be around anymore.” At the same time, Tyler did not even recall that Martinelli was at the Dodge trailer that evening, which certainly put his credibility in question. In light of this record, the “clear and undisputed facts” did not establish Martinelli to be an accomplice as a matter of law. Accordingly, the trial court did not have a sua sponte duty to give CALJIC No. 3.16.
Defendant discusses at length a trial court’s sua sponte duty to instruct on lesser included offenses, even when the offense are inconsistent with the defense. He then submits that “[a] trial court is under a similar duty to instruct on accomplice liability, even when the instructions are inconsistent with the defense.” We agree that an instruction’s inconsistency with the defense does not excuse a trial court’s obligation to give such an instruction, but this was not what happened here. Rather, after listening to defense counsel explain why Martinelli was not an accomplice, the court properly agreed not to give the instruction because the evidence on Martinelli’s accomplice status was not clear and undisputed.
And even if the trial court had a sua sponte duty to instruct the jury that Martinelli was an accomplice as a matter of law and failed to do so, which was not the case, such error would not constitute grounds for reversal for two reasons. First, defendant would be barred by the doctrine of invited error from complaining about this purported error on appeal. “The doctrine of invited error applies to estop a party from asserting an error when ‘his own conduct induces the commission of error.’ ” (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3, quoting 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 266, p. 4257.) As is evident from the record, the court considered reading CALJIC No. 3.16 to the jury, which would have instructed that Martinelli was an accomplice as a matter of law, but defense counsel vehemently opposed such instruction, repeatedly insisting that it was contrary to the theory of defense—that Martinelli was the killer and that defendant was not involved. As defense counsel explained it, “This is like the Judge—your Honor telling the jurors that, in effect, that Mr. Martinelli is—has been telling you the truth, that he was merely a driver that helped [defendant] get away. My position—and, you know, he was the murderer. The murderer is not an accomplice. So the Court’s telling them he’s an accomplice as a matter of law. It’s like telling them, well, Mr. Martinelli told the truth. All he did was help him drive away. This completely undercuts my defense, I think.” The following colloquy then ensued:
“THE COURT: If I follow your instructions and you don’t—neither one of you want 316—3.16, then the jury makes the determination. And then you can ride the horse if he is convicted and say, Well, the Judge should have done that. ‘Cause it’s a matter of law. [¶] But if both of you don’t want it now, I’ll put a note on it, ‘Both District Attorney and Defendant and his two attorneys said that they object to it.’ And I hope and pray that you don’t get in trouble. [¶] Is that what you want?
“MR. KAPLAN [counsel for defendant]: Yes.
“MR. BAKER [the prosecutor]: Yes.
“MR. HAUPTMAN [counsel for defendant]: Yes.
“DEFENDANT: Yes.
“THE COURT: And have you talked to Mr. Lunghi about that?
“DEFENDANT: Yes.
“MR. KAPLAN: For a couple of years now.
“THE COURT: Huh?
“MR. KAPLAN: Many, many, many times, hours and hours. And I’ve carefully considered it and discussed it with Mr. Hauptman, I’ve discussed it with other attorneys, I’ve slept on it at night, I’ve stayed awake at night considering it
“THE COURT: Well
“MR. KAPLAN: —thinking from it in every possible way.
“[¶] . . . [¶] THE COURT: Now, if you label Mr. Martinelli as an accomplice as a matter of law, most of the time the DA’s Office doesn’t like that. But it’s been rare that I’ve seen a defense lawyer who didn’t like to have the key—the star witness called an accomplice.
“MR. KAPLAN: I know that.
“THE COURT: Mr. Lunghi, in any event
“DEFENDANT: No problem.
“THE COURT: —your lawyers have given a lot of thought to this.
“DEFENDANT: No, we went over this a long time ago.
“THE COURT: And you concur?
“DEFENDANT: I agree.
“THE COURT: You agree with your lawyers?
“DEFENDANT: I agree with them.
“THE COURT: And you realize you couldn’t raise this on appeal if you got convicted?
“DEFENDANT: I realize that, your Honor.
“THE COURT: And if your appellate lawyer says, ‘Why in the world did you do that?’
“DEFENDANT: I’ll have an answer.”
Clearly, the court considered whether it was obligated to give CALJIC No. 3.16 but ultimately did not do so at the behest of defense counsel, even going so far as to advise defendant that he would be barred from raising the issue on appeal if he were convicted. This is the epitome of invited error.
In addition, there was sufficient evidence corroborating Martinelli’s testimony, such that any error would have been harmless. (People v. Miranda (1987) 44 Cal.3d 57, 100 [“It has been recognized that the failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record.”]; accord, People v. DeJesus (1995) 38 Cal.App.4th 1, 25.) To determine if sufficient corroboration exists, we must eliminate Martinelli’s testimony from the case and examine the remaining evidence to determine if there is any inculpatory evidence tending to connect defendant to the crime. (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.) “The evidence required for corroboration of an accomplice ‘need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it 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.’ [Citations.] Moreover, evidence of corroboration is sufficient if it connects defendant with the crime, although such evidence ‘is slight and entitled, when standing by itself, to but little consideration.’ [Citations.]” (People v. Holford (1965) 63 Cal.2d 74, 82; see also People v. Williams, supra, 16 Cal.4th 635, 680-681; People v. Hathcock (1973) 8 Cal.3d 599, 617.) “The corroborating evidence may be entirely circumstantial. [Citations.] The corroborating evidence may be ‘ “slight and entitled to little consideration when standing alone.” ’ [Citations.] Only a portion of the accomplice’s testimony need be corroborated, and the corroborative evidence need not establish every element of the offense charged. [Citation.] All that is required is that the evidence ‘ “ ‘ “connect the defendant with the commission of the crime in such a way as may reasonable satisfy the jury that the [accomplice] is telling the truth.” ’ ” ’ [Citation.]” (People v. DeJesus, supra, 38 Cal.App.4th at p. 25.)
The evidence detailed above—from Just, from Farmer, from Moghadam, from Roberton, defendant’s DNA, the cigarettes, the fingerprint on the ice bucket—provides ample evidence corroborating Martinelli’s testimony under this standard.
2. Defendant Was Not Deprived Of Effective Assistance Of Counsel By His Counsel’s Objection To Accomplice Instructions
We likewise reject defendant’s argument that his counsel’s insistence that the court not instruct the jury on CALJIC No. 3.16 constituted ineffective assistance. In People v. Ledesma (1987) 43 Cal.3d 171, our Supreme Court explained the showing necessary to obtain a reversal of a conviction on ineffective assistance of counsel grounds: “ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components.’ [Citations.] ‘First, the defendant must show that counsel’s performance was deficient.’ [Citations.] Specifically, he must establish that ‘counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] [¶] In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny.” (Id. at p. 216.) The court then explained the second component: “[A] criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.” (Id. at p. 217.) “ ‘The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (Id. at pp. 217-218; see also Strickland v. Washington (1984) 466 U.S. 668, 687.)
Defendant has failed to demonstrate that his counsel acted unreasonably in requesting—indeed, insisting—that CALJIC No. 3.16 not be given. At trial, the defense was premised on the theory that Martinelli was the killer. As counsel repeatedly explained to the court, accomplice instructions were inconsistent with that theory, and the defense did not want them given. As evidenced by the above-noted colloquy among the court, defense counsel, and defendant, this was a thoughtful, informed, strategic decision. The Supreme Court’s observations in Strickland v. Washington are particularly apt here: “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making an evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Strickland, supra, 466 U.S. at p. 689.) Although the defense’s trial strategy may have failed, we must presume that the strategy was reasonable and fell within the range of competent professional judgment. Defendant has not demonstrated to the contrary.
C. To The Extent Corroborating Evidence Was Even Required, There Was Sufficient Evidence Corroborating Martinelli’s Testimony That Defendant Murdered Morris
Defendant contends that there was insufficient evidence corroborating Martinelli’s testimony as required by section 1111. This argument fails for two reasons.
First, there was sufficient evidence from which the jury could have concluded that Martinelli was not an accomplice. Given the definitions of accomplice (CALJIC No. 3.10) and aiding and abetting (CALJIC No. 3.01) and Martinelli’s testimony that he did not know ahead of time what defendant was going to do, having merely followed defendant at his request, the jury could reasonably have concluded that Martinelli was not an accomplice such that corroborating testimony was not required.
And even if the jury determined that Martinelli was indeed defendant’s accomplice, we have already detailed above the abundant evidence corroborating his testimony that defendant was the killer.
D. The Prosecution Did Not Commit Misconduct During Closing Argument
As noted above, the prosecution presented testimony by Matin Moghadam, who was incarcerated with defendant in 2000 and testified that defendant told him, “Go ask people around here. I’ve killed people before.” During closing argument, the prosecution commented on Moghadam’s testimony as follows: “He told Mr. Moghadam, ‘I have killed people before.’ Well, if it wasn’t Sandra Morris, then who?” Defendant contends this constituted prosecutorial misconduct because defendant had been convicted of vehicular manslaughter in 1968, evidence that was excluded during the guilt phase. According to defendant, the prosecutor knew defendant’s statement to Moghadam could have referred to the manslaughter victim yet he improperly suggested to the jury—which did not know about the manslaughter victim—that the statement could only refer to Morris. We reject defendant’s argument for multiple reasons.
We note first that defendant failed to preserve the argument for appellate review by not objecting below when the prosecution made the statement during closing argument. (People v. Samayoa (1997) 15 Cal.4th 795, 841 [“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”]; People v. Price (1991) 1 Cal.4th 324, 447 [“To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.”].) In his reply brief, defendant cites People v. Gionis (1995) 9 Cal.4th 1196, 1214, and People v. Espinoza (1992) 3 Cal.4th 806, 820, for the proposition that “[t]he waiver rule is inapplicable to prosecution misconduct that comprises ‘a pattern of conduct so egregious that it infect[s] the trial with such unfairness’ as to make the conviction a denial of due process.” In fact, neither case stands for this proposition, and Gionis even reiterates the requirement that defense counsel object and request an admonition in order to preserve the alleged misconduct for review. (Gionis, supra, 9 Cal.4th at p. 1215.) Citing People v. Arias (1996) 13 Cal.4th 92, 159, defendant does correctly note that a defendant may be “excused from making a timely objection and/or requesting an admonition if either would have been futile, ” but there is no suggestion of futility here.
Second, even if we were to address the merits, we disagree with defendant’s fundamental premise that the prosecution’s comment on Moghadam’s testimony constituted misconduct because the comment was not improper. Following his conviction, defendant made this same argument as one of the grounds for his motion for a new trial. In opposition, the prosecution noted, “To suggest that when [defendant] made the statement that he had ‘killed before, ’ defendant was referring to his drunk driving incident is pure conjecture. To suggest that defendant’s prior conduct could have been the basis for his claim of having ‘killed before, ’ in the context of the statement and the facts of this case, leaps beyond the reasonable inferences from the evidence.” At the hearing on the motion, the prosecution further argued, “That’s kind of farfetched to even think that Mr. Lunghi had in his mind, when he made that statement to Mr. Moghadam, that he was talking about the person he killed in the drunk driving incident in 1968.” We agree with the prosecution. It simply stretches one’s imagination beyond reason to believe that when defendant was threatening Moghadam by saying, “I’ve killed people before, ” he was referring to the victim in a drunk driving incident over thirty years earlier.
Defendant analogizes his situation to that in People v. Varona (1983) 143 Cal.App.3d 566, where the Court of Appeal reversed a rape conviction, finding that the prosecution committed misconduct by arguing there was no evidence the victim was a prostitute when the prosecutor had in fact seen official records of her guilty plea on prostitution charges and knew that he was arguing a falsehood. (Id. at pp. 568-569.) Here, defendant submits, the prosecution knew evidence of the 1968 vehicular manslaughter had been excluded, yet he “falsely implied that [defendant] must have been admitting that he killed Morris.” Varona is of no assistance to defendant, however, because as noted above we do not believe defendant’s admission to Moghadam can reasonably be construed to have been referring to the 1968 vehicular manslaughter incident. In short, the prosecution did not make a false statement to the jury.
Third, even assuming arguendo we found misconduct, it did not rise to the level requiring reversal. As noted above, prosecutorial misconduct requires reversal only where “ ‘it infects the trial with such unfairness as to make the conviction a denial of due process’ ” or involved “ ‘ “the use of deceptive or reprehensible methods.” ’ ” (Harrison, supra, 35 Cal.4th at p. 242; accord, People v. Valdez (2004) 32 Cal.4th 73, 122.) “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970.) A prosecutor has “ ‘broad discretion to state his views as to what the evidence shows and what inferences may be drawn therefrom.’ ” (People v. Sims (1993) 5 Cal.4th 405, 463.)
Here, the comment neither infected the trial with unfairness nor involved the use or deceptive or reprehensible methods. The prosecution’s comment was but one small piece of evidence of defendant’s guilt when, as detailed above, there was a wide array of other inculpatory evidence that supported defendant’s conviction. Defendant has not met his burden of showing that the jury understood or applied the comment in an improper manner.
As an additional instance of purported prosecutorial misconduct during closing argument, defendant submits that “[t]he prosecutor also invited the jury to accept the truth of Martinelli’s video-taped statement to police that he did not know of the plan to kill Morris until after the shooting, despite the prosecutor’s actual knowledge that Martinelli admitted before trial that he knew of the plan when he drove to the location of the shooting.” This argument, which defendant again failed to preserve for appellate review, is merely a reiteration of the above-discussed issue concerning the prosecution’s purported use of false testimony, and we reject it once again.
E. Admissibility Of Evidence
1. The Trial Court Did Not Abuse Its Discretion In Admitting Evidence Of Defendant’s Methamphetamine Use
At trial, two different witnesses testified about defendant’s methamphetamine use. Ruth Just, who described her evening at the Regency Islander Motel with Morris and defendant, testified that Morris and defendant “mentioned the drugs, that he wanted to do some, and so they both went into the bathroom. They left the door open a little bit . . . .” After Just testified that Morris was going to inject defendant with methamphetamine, the prosecutor asked her to describe the nature of the conversation they were having about her administering the drugs, and defense counsel objected on the issue on the grounds of hearsay and relevancy. At sidebar, the prosecutor explained that defendant denied knowing Morris, and Just was going to testify that “Sandra Morris is trying to inject drugs into [defendant]. It’s certainly relevant to his knowledge about who she is, knowing her, what type of relationship it is.” The trial court overruled the objection and allowed Just to answer. She then continued her testimony, explaining that defendant sounded “upset, you know, disgusted or what you would—you know, it was taking too long, and things like that.”
Susan Dodge also testified about defendant’s methamphetamine use, stating she was present one time when Tyler was injecting defendant in the kitchen of their trailer. When the prosecution asked her to describe defendant’s behavior, defense counsel interposed an objection based on relevancy and Evidence Code sections 352 and 1101. The prosecutor explained that defendant’s “demeanor during that time was loud, boisterous, and angry like it was with—in the bathroom at the Islander earlier that night. That’s the relevance.” The trial court overruled the objection, and Susan proceeded to testify that “[defendant] was screaming at [Tyler] and cussing at him, telling him that he better not miss, and kind of how to do it.”
On appeal, defendant argues that the admission of evidence of defendant’s methamphetamine use violated his federal due process rights and resulted in a miscarriage of justice under the state constitution. We disagree.
As an initial matter, the objection defendant asserts here is broader than that asserted at trial. As the People correctly note, at trial defense counsel did not object to evidence regarding defendant’s drug use, but rather objected to questions regarding defendant’s behavior after Just and Dodge had already testified about defendant’s drug use. Here, however, defendant now argues that all testimony by Just and Dodge about defendant’s methamphetamine usage should have been excluded. Defendant waived this argument by failing to make it at trial. (People v. Heard (2003) 31 Cal.4th 946, 972, fn. 12; People v. Champion (1995) 9 Cal.4th 879, 923.) But even if we were to consider the argument on its merits, we would reject it as well.
On review, we must consider first “whether the challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence Code section 210, and [second, ] if the evidence was relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the [evidence] was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.” (People v. Scheid (1997) 16 Cal.4th 1, 13.) No error of law or abuse of discretion occurred here.
Evidence Code section 210 defines relevant evidence as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence is relevant if it “tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent or motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177.) Evidence Code section 352, however, allows the trial court, in its broad discretion, to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. . . . [T]he trial court’s ruling under section 352 will be upset only if there is a clear showing of an abuse of discretion.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65; accord, People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) The trial court’s exercise of discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316; accord, People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Defendant has not met this standard.
The testimony regarding defendant’s drug use was indeed relevant. Just’s testimony describing defendant’s behavior when Morris was trying to inject him evidenced defendant’s hostility towards Morris and depicted the nature of their relationship and his demeanor towards a woman he was accused of killing. That Susan Dodge witnessed similar behavior by defendant corroborated Just’s testimony and lent credibility to her identification of defendant as the man who was at the motel with Morris that evening.
And we fail to see how Just and Dodge’s testimony of defendant’s drug use was unduly prejudicial, since evidence of drug use—including defendant’s—pervaded the trial. Indeed, defense counsel admitted during opening statements that defendant had “wasted most of his life using drugs.” Just and the Dodges were admitted drug users, as was Martinelli, who dealt drugs as well. The victim herself was a methamphetamine addict who had drugs in her system when she died. In light of the fact that the trial was replete with evidence of drug use, testimony regarding defendant’s drug use was not so shocking that it would have prejudiced the jury, as it might have in a case where drugs did not pervade the entire trial. The trial court did not abuse its discretion in admitting the challenged testimony.
Defendant’s argument that the testimony was inadmissible under Evidence Code section 1101 is misplaced. Evidence Code section 1101, subdivision (a) provides that evidence of a person’s character, including specific instances of conduct, is inadmissible when offered to prove that conduct on a specified occasion. Under subdivision (b), however, evidence that a person committed an act is admissible when the evidence is relevant to prove some fact other than disposition to commit the act, such as motive, opportunity, intent, preparation, plan, knowledge or identity. Here, evidence of defendant’s character as a drug user was not offered to show a propensity to commit crimes but rather to bolster Ruth and Susan Dodge’s credibility since their testimony corroborated each other, as well as to show defendant’s demeanor towards Morris the evening before her murder.
And finally, even if the trial court abused its discretion in allowing this testimony, which it did not, such error would have been harmless as there was substantial evidence of defendant’s guilt. (People v. Boyette (2002) 29 Cal.4th 381, 424 [even if court abused its discretion in admitting evidence, error was manifestly harmless in light of the strong evidence of guilt].)
2. The Trial Court Did Not Abuse Its Discretion In Admitting Testimony Of Robert Farmer And Matin Moghadam
Defendant also argues that the trial court erred in admitting the testimony of Robert Farmer and Matin Moghadam, two so-called “jailhouse snitches.” As noted above, Farmer testified that defendant admitted killing Morris, while Moghadam testified that defendant told him, “I have killed people before.” Defendant contends on appeal, as he did in a motion in limine and again at trial, that such testimony should have been excluded because it was inherently unreliable or, alternatively, it was unduly prejudicial. We disagree.
As to defendant’s first argument, the California Supreme Court has “consistently rejected claims such evidence is inherently unreliable.” (People v. Ramos (1997) 15 Cal.4th 1133, 1164-1165.) Without necessity of further analysis, we follow the Supreme Court, as we must (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and reject this argument as well.
Turning to defendant’s claim that it should have been excluded as unduly prejudicial under Evidence Code section 352, we look first at Robert Farmer, who admitted at trial that he agreed to testify against defendant with the hope that he would receive a referral to a drug treatment program, thereby avoiding a third strike prosecution and a possible 25 years-to-life sentence. Defendant submits that he was therefore “motivated by the desire to avoid a life sentence, ” and “[u]nder such circumstances, the probative value of the alleged hearsay confession was substantially outweighed by the risk of misleading the jury.” The motivations for Farmer’s testimony do not justify exclusion of his testimony, but instead speak to his credibility, and credibility determinations are the province of the jury. (People v. Guerra (2006) 37 Cal.4th 1067, 1140-1141 [“ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for 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 upon which a determination depends.”].) Accordingly, the trial court did not abuse its discretion in admitting Farmer’s testimony.
As to Moghadam, defendant claims that because he killed a man in 1968 while driving under the influence, his statement to Moghadam was likely to confuse the jury because the statement could have referred to the manslaughter victim, while the jury could have believed it must have referred to Morris. We have already rejected defendant’s unreasonable speculation that Moghadam’s statement could have referred to the manslaughter victim, and we need not address it again.
And while we find no error in the admission of the testimony by defendant’s jailhouse companions, we reiterate that there was enough other incriminating evidence that admission of this evidence, even if in error, would not have been prejudicial.
F. The Preaccusation Delay Did Not Violate Defendant’s Right To Due Process
Defendant contends that the nearly eleven-year delay between Morris’s November 23, 1989 murder and the July 18, 2000 filing of an accusatory pleading against him violated his federal and state constitutional rights to due process and a fair trial. In a motion filed below, defendant sought dismissal “because his Due Process rights to a fair trial under the State Constitution [were] irreparably and prejudicially impaired by preaccusation delay in charging, arrest and prosecution.” He did not present a federal due process claim and, having failed to do so, waived his right to assert it here on appeal. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1116, fn. 20.)
We turn therefore to the law applicable to defendant’s claim that the preaccusation delay violated his right to due process under the state Constitution. The California Supreme Court addressed the issue of pre-charging delay in People v. Morris, where it explained: “An unreasonable delay between the time an offense is committed and an accusatory pleading is filed may violate a defendant’s right to a fair trial and due process of law under article I, section 15, of the California Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. [Citation.] In evaluating a claim of precomplaint delay, ‘any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.’ [Citation.] ‘In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed. [Citations.]’ [Citations.] Prejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay. [Citation.].” (People v. Morris (1988) 46 Cal.3d 1, 37, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5.) The Fifth District in People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899 summarized it as a three-step process: “First, the defendant must show he has been prejudiced by the delay. Second, the burden then shifts to the prosecution to justify the delay. Third, the court balances the harm against the justification.” (Id. at p. 911.)
The People argue that in addition to showing prejudice, defendant must also demonstrate that the prosecution acted with the intent to prejudice him. Because defendant makes no attempt to establish prejudice, as explained post, we need not address whether the prosecution’s intent to prejudice defendant is an element of his due process violation claim.
“Whether pre-arrest delay is unreasonable and prejudicial to the defendant is a question of fact” to be determined by the trial court. (Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 911-912; accord, People v. Hill (1984) 37 Cal.3d 491, 499.) On appeal, the trial court’s determination must be upheld if supported by substantial evidence. (Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 911-912; Hill, supra, 37 Cal.3d at p. 499.) Finally, the court’s ultimate determination balancing the prejudice against the justification for the delay along with the societal interest in prosecution is reviewed for an abuse of discretion. (Morris, supra, 46 Cal.3d at p. 38; People v. Abraham (1986) 185 Cal.App.3d 1221, 1230.)
In Hill, supra, 37 Cal.3d at p. 495, defendant asserted that the prosecution’s failure to a pursue charges against him violated his federal and state constitutional rights to a speedy trial. Due process claims for speedy trial violations and preaccusation delays are evaluated under the same standard. (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 910; Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.)
With these legal standards in mind, we begin our examination of defendant’s argument. Defendant notes that prior to trial he moved to dismiss the case against him “on the ground that the preaccusation delay resulted in irreparable prejudice.” As he explains it, his “motion argued that he was prejudiced by (1) the loss of witnesses at the guilt phase whose testimony would have undermined the credibility of the prosecution’s central witness, Sivas Martinelli; and (2) the loss of an alibi witness identified as ‘Ruth.’ ” Defendant then submits that his “motion and attached exhibits established prejudice resulting from” the following events: the loss of memory of Dipak Mackrani, manager of the Regency Islander Motel; the death of Ray Morris, estranged husband of Sandra Kay Morris; the death of Laura Gunther, daughter of Sandra Kay Morris; the death of Rosemary Cutlip; the death of Patricia Hermann; the death of Jeanie Karas; the failure to investigate whether a .38 revolver seized in 1991 was the murder weapon; and the failure to investigate reports that Mexicans threatened to kill Morris and said “your mother’s dead.” Nowhere does defendant explain what testimony these individuals might have offered and how it might have impacted Martinelli’s credibility, or what exculpatory evidence he might have discovered had the police investigated all leads.
Defendant then summarizes the trial court’s ruling—contained, not incidentally, in a thoughtful, comprehensive, 14-page, single-spaced memorandum of decision denying defendant’s motion—as follows: “The trial court ruled that [defendant] was prejudiced by the deaths of Patricia Herman and Jeanie Karas, whose testimony would have impeached Martinelli. (CT 1986-1987) The trial court concluded that the inability of the crime lab to exclude the .38 caliber revolver seized in 1991 as the murder weapon was ‘trivial, ’ and [defendant] suffered no prejudiced by the failure to investigate other threats against Morris. (CT 1987) The trial court noted that ‘the central question presented [is] Martinelli’s credibility, but concluded that the prejudice did not violate [defendant’s] right to a fair trial. (CT 1990)”
Although not mentioned in defendant’s brief, the trial court also found that the police were negligent in failing to locate “Ruth” and that defendant was prejudiced by this failure. Shortly before trial, the prosecution located Ruth Just, who testified during the guilt phase. Accordingly, this is a nonissue.
It is not altogether clear from the foregoing, which constitutes the sum total of defendant’s discussion on the purportedly lost evidence, what argument defendant is attempting to assert. Nowhere does he state that the trial court’s determination on the prejudice component was unsupported by substantial evidence, nor does he state that the trial court abused its discretion in determining that the prejudice he suffered was outweighed by the prosecution’s legitimate justification for delay. As best as we can surmise, defendant appears to be arguing that the trial court erred in finding he was not prejudiced by the delay, other than by the deaths of Hermann and Karas. If this is the argument defendant seeks to make, then he has failed to demonstrate that the trial court’s ruling on the lack of prejudice was unsupported by substantial evidence.
The basic tenets of appellate review require defendant, when arguing that the trial court’s ruling was unsupported by substantial evidence, to set forth all material evidence on the issue. The California Supreme Court addressed this issue in In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888, where it stated that, as to sufficiency of evidence, “ ‘The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.’ [Citations.] [¶] Accordingly, we summarily reject [the appellant’s] arguments based upon a lack of substantial evidence. It is neither practical nor appropriate for us to comb the record on [his] behalf.” (See also People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [appellant waived her evidentiary insufficiency contention by omitting a factual summary]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
To the same effect is Grand v. Griesinger (1958) 160 Cal.App.2d 397, 403, where the court noted that “[t]he reviewing court is not called upon to make an independent search of the record where” the appellant fails to set forth, with transcript references, the evidence which is claimed to be insufficient to support the findings. The court continued: “ ‘A claim of insufficiency of the evidence to justify findings, consisting of mere assertion without a fair statement of the evidence, is entitled to no consideration, when it is apparent, as it is here, that a substantial amount of evidence was received on behalf of the respondents. Instead of a fair and sincere effort to show that the trial court was wrong, appellant’s brief is a mere challenge to respondents to prove that the court was right. And it is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondents. An appellant is not permitted to evade or shift his responsibility in this manner.’ ” (Ibid.)
Here, defendant has made absolutely no attempt to detail any evidence he claims was lost as a result of the delay and to argue why the trial court’s ruling that defendant was not prejudiced by such loss was unsupported by substantial evidence. Accordingly, defendant has forfeited any dispute he has with the trial court’s ruling on those matters.
At the same time, defendant observes that “[t]he trial court correctly concluded that [defendant] was prejudiced by the preaccusation delay . . . .” While defendant does not so state, we assume this refers to the trial court’s finding that defendant was prejudiced by the deaths of Hermann and Karas. If that is the case, then it is his burden to demonstrate that the court abused its discretion in finding the prejudice he suffered by their deaths was outweighed by the prosecution’s legitimate justification for the preaccusation delay. Defendant has, however, completely omitted such a discussion from both his opening and rely briefs. Nowhere does he even explain who Hermann or Karas were, let alone identify the potential evidence lost by their deaths. Nor does he make any attempt to demonstrate that the trial court abused its discretion in finding that the prosecution’s legitimate justification for delay outweighed any prejudice he suffered by their deaths. At most, defendant argues that the trial court “erred by concluding that the prejudice was minimal and did not violate due process. Both the trial court and the prosecution repeatedly acknowledged throughout trial that Martinelli’s testimony was the lynchpin of the prosecution’s case. In ruling on the motion to dismiss based upon the preaccusation delay, the trial court reiterated that Martinelli’s credibility was the central issue at trial. On this record, the loss of defense witnesses whose testimony would have undermined Martinelli’s credibility, the failure to investigate a weapon that could have been used in the shooting, and other threats against Morris, cannot be regarded as harmless, requiring reversal.” This hardly amounts to a demonstration that the court abused its discretion in determining that any prejudice was outweighed by legitimate justifications for the delay. Again, in light of this failure, defendant has forfeited any argument that the court abused its discretion.
Curiously, while defendant fails to detail evidence purportedly lost as a result of the delay, how he was prejudiced by that loss of evidence, and how the trial court abused its discretion in concluding any prejudice was outweighed by legitimate justification for the delay, defendant spends over two pages in his opening brief discussing a Tennessee Supreme Court case, State v. Gray (Tenn. 1996) 917 S.W.2d 668, that has no bearing on defendant’s claims. In Gray, the victim’s nearly 42-year delay in reporting a sexual assault to law enforcement resulted in a lengthy preaccusation delay. (Id. at p. 671.) According to defendant, the Gray court “held that due process barred a prosecution for a sex offense due to an excessive and prejudicial preaccusation delay, even thought ‘there [was] no evidence in the record that the State caused the delay.’ ” Defendant submits that in the absence of any California authorities similarly finding a due process violation where the delay was attributable to victim, this Court should follow Gray. We struggle to see why defendant perceives Gray to be helpful to his cause, as it contributes absolutely nothing to the issues presented by the instant claim, namely whether the trial court’s prejudice determination is supported by substantial evidence and whether the trial court abused its discretion in finding any prejudice outweighed by the prosecution’s justification for the delay. In fact, Gray’s holding that “[i]n determining whether pre-accusatorial delay violates due process, the trial court must consider the length of the delay, the reason for the delay, and the degree of prejudice, if any, to the accused” (id at p. 673) is contrary to California law, which requires defendant to first show prejudice caused by the delay. (Morris, supra, 46 Cal.3d at p. 37; Scherling, supra, 22 Cal.3d at p. 506.) And it goes without saying that the instant case does not involve a preaccusation delay caused by the victim’s failure to timely report the offense, as was the case in Gray.
On a final note, defendant’s argument that he was prejudiced by the preaccusation delay is inconsistent with his oft-asserted position that the prosecution’s “entire case rested upon the credibility of Sivas Martinelli” and that there was insufficient evidence to corroborate his testimony. Here, defendant suggests that the district attorney had evidence identifying defendant as a suspect as early as 1989 (the finger print evidence) and 1995 (when Farmer first told authorities about defendant’s admission), but nevertheless prejudicially delayed for another five years in charging him with the murder. In making this argument, defendant implicitly concedes that there was other evidence implicating him in Morris’s murder, which cuts against his position that there was no evidence corroborating Martinelli’s testimony.
G. There Was No Error And Thus No Cumulative Error
We have found no prejudicial error, and as such, there can be no cumulative error requiring reversal. (People v. Coryell (2003) 110 Cal.App.4th 1299, 1309.)
H. The Trial Court Improperly Imposed A Parole Revocation Fine
Defendant’s final argument concerns a sentencing issue, in which he contends that “[t]he trial court imposed an unauthorized sentence by ordering [him] to pay a $200 parole revocation fine” pursuant to section 1202.45. The People concede the imposition of the fine was improper. In light of the People’s concession, we need not address the issue further. We do note, however that the concession is warranted in light of People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185 [the trial court did not err by declining to impose a parole revocation fine “because the sentence does not presently allow for parole and there is no evidence it ever will.”]. Likewise here, because defendant was sentenced to life without possibility of parole, the parole revocation fine imposed pursuant to section 1202.45 was improper and must be stricken.
IV. Disposition
The abstract of judgment shall be modified to strike the $200 parole revocation fine imposed pursuant to section 1202.45. In all other regards, the judgment is affirmed.
We concur: Kline, P.J., Lambden, J.