Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County Super. Ct. No. RIF098463, Paul E. Zellerbach, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant Jaime Diaz Medina.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Marco Antonio Mora.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendants Jaime Diaz Medina and Marco Antonio Mora were members of a criminal street gang. While attempting to retaliate for a shooting of a fellow gang member by a rival gang, Juan Garcia (another member of defendants’ gang) shot two innocent bystanders, one of whom died. Defendants were convicted of murder and attempted murder as aiders and abettors. Defendants challenge their convictions and sentences.
Medina argues the case against him should have been dismissed, or the district attorney’s office recused from prosecuting the case, because an investigator for the district attorney’s office listened to telephone calls between Medina and his counsel, which had been recorded by the Riverside County jail in violation of Penal Code section 636, subdivision (a). (All further statutory references are to the Penal Code.) The prosecution established there was not a substantial threat of demonstrable prejudice to Medina. (People v. Zapien (1993) 4 Cal.4th 929, 964.) We conclude the trial court did not abuse its discretion by selecting a lesser sanction than dismissal or recusal for the violation of Medina’s attorney client privilege.
Both defendants argue the trial court erred by admitting evidence that one of their fellow gang members told police he had heard Mora was involved in the shooting. The testimony was offered for a non hearsay purpose—to show its effect on the police as they investigated the crime. The trial court did not err in admitting the evidence.
Both defendants argue the trial court erred in admitting the testimony of Jose Garcia, the father of the accused shooter, who testified his son left for Mexico either before or after the shooting. (We will refer to Juan and Jose Garcia by their first names to avoid confusion; we intend no disrespect.) Even if the trial court erred in admitting this testimony, any error was harmless.
Defendants next argue that the trial court should have suppressed testimony about their confessions during police interviews, or at least have instructed the jury it could draw adverse inferences against the prosecution, because law enforcement failed to preserve audiotapes of those interviews. Defendants contend the detectives who testified fabricated the confessions. Substantial evidence supported the trial court’s finding that the loss of the audiotapes was inadvertent. Because the tapes would not necessarily have exonerated defendants, due process was not violated. (Arizona v. Youngblood (1988) 488 U.S. 51, 58.) Therefore, the trial court had discretion to determine the appropriate sanction, and the court did not abuse that discretion in rejecting defendants’ motion to suppress or in rejecting defendants’ proposed jury instructions.
Medina argues the prosecutor improperly vouched for its witnesses by stating during closing argument that he would not suborn perjury. Although this was misconduct on the part of the prosecutor, it was not prejudicial, and could have been cured by a timely request for an admonition.
Both defendants argue there was insufficient evidence of their specific intent to support their convictions for attempted murder. We agree. The prosecutor relied on the kill zone theory regarding attempted murder. (People v. Bland (2002) 28 Cal.4th 313 (Bland).) The attempted murder victim—Jonathan Maneafaiga—was not an intended target of the shooter. The shooter did not use a means of killing rival gang members that would inevitably result in the death of others nearby. (People v. Stone (2009) 46 Cal.4th 131, 138 (Stone).) The convictions for attempted murder must be reversed; we modify the judgments to reflect convictions for the lesser included offense of assault with a firearm instead. We remand the matter to the trial court for resentencing.
We reject defendants’ contention that they were placed in double jeopardy when the trial court relied on the same fact to impose a 25 years to life firearm enhancement as was used to convict defendants for murder. (People v. Izaguirre (2007) 42 Cal.4th 126, 134.)
Finally, we strike Medina’s parole revocation fine and direct the trial court to make certain corrections to Mora’s abstract of judgment.
Statement of Facts and Procedural History
On July 16, 2001, Ricardo Ruiz, a member of the Clique Los Primos (CLPS) criminal street gang, was the victim of a drive by shooting at Lincoln Park in Riverside. The shots had been fired by one of two Black men in a car, who yelled “12th Street” or “1200 Blocc” before shooting. Witnesses believed the shooters were members of the 1200 Blocc Crips criminal street gang. There was a history of rivalry between 1200 Blocc Crips and the East Side Riva (ESR) criminal street gang, a Hispanic gang; CLPS is a subset or clique of ESR. In July 2001, Mora, Medina, Juan, Carlos Alvarado, and Christian Cerano were all active members of CLPS. Juan’s gang moniker was “Wicked” or “Big Wicked.”
On July 20, 2001, a group of Black men was standing in front of Western Liquor Store at the intersection of University and Ottawa in Riverside. Four or more Hispanic men with shaved heads got out of a car parked in an alley nearby and ran toward the intersection. Four shots were fired, and the Hispanic men ran back to their car and drove away. Paul Parker, a transient, was shot through his back while crossing the street; he died as a result of his wounds. Jonathan Maneafaiga was shot in the calf as he stood in front of a Kentucky Fried Chicken restaurant next to Western Liquor Store.
On July 27, 2001, Riverside police officers contacted several Hispanic males at Lincoln Park. Cerano told the police he had heard about the shooting that day, and implicated Mora, Alvarado, and Juan. Cerano told the police he had heard Juan was the shooter. Mora was interviewed by the police; as will be explained post, although Mora’s interview (and Medina’s later interview) was recorded, no audiotapes were available at trial. Mora told the detectives Juan was the shooter, as well as the following: He, Medina, Juan, and Alvarado were looking for members of the 1200 Blocc Crips gang, and intended to fight them as payback for Ruiz’s shooting. Mora knew Juan had a gun and that the group intended to use it. After parking in an alley, Mora and Juan walked toward the street ahead; Juan then fired a total of six shots. Mora and Juan ran back to the car and drove away.
Based on Mora’s interview, detectives questioned Medina two days later. Medina told detectives he, Mora, Alvarado, and Juan were driving around looking for 1200 Blocc Crips to avenge the shooting of a friend. They saw some Crips as they drove down University. Medina parked his car in an alley off of University and Ottawa. Mora and Juan got out of the car and walked to the intersection. Medina heard four shots, and then Mora and Juan ran back to the car. Juan later told Medina he was aiming at someone else, and shot the wrong guy.
Medina, Mora, and Alvarado were initially charged with premeditated murder, premeditated attempted murder, and assault with a firearm. Mora was also charged with carrying a loaded firearm in public while not the registered owner (§ 12031, subd. (a)(2)(F) [count 3]); this crime was alleged to have been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Medina’s case was severed. Mora and Alvarado were tried together. Alvarado was acquitted of all charges. Mora was convicted of the firearm charge, and the jury made true findings on the attendant gang enhancement, but the jury was unable to reach a verdict on any other charges.
In an amended information, Mora and Medina were charged with premeditated murder, with a gang special circumstance (§§ 187, subd. (a), 190.2, subd. (a)(22) [count 1]); premeditated attempted murder (§§ 187, subd. (a), 664 [count 2]); and assault with a firearm (§ 245, subd. (a)(2) [count 3].) The information alleged that in committing counts 1 and 2, defendants had personally and intentionally discharged a firearm, proximately causing great bodily injury or death to a non accomplice. (§ 12022.53, subds. (d) & (e)(1).) The information also alleged counts 2 and 3 were committed for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).) Finally, the information alleged that in committing count 3, defendants personally used a firearm. (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8).)
Medina and Mora were then tried together, before separate juries. Medina was convicted on counts 1 and 2, and all enhancements attendant to those charges were found true. The Medina jury did not render a verdict on count 3. Mora was convicted of first degree murder, attempted murder, and assault with a firearm. The Mora jury found all enhancement allegations true, except the section 12022.5 enhancement on count 3, for which there is no findings form in the appellate record.
The court instructed the Medina jury that it could only render a verdict on count 2 or count 3, not on both. No similar instruction was given to the Mora jury.
Both defendants were sentenced to life imprisonment without the possibility of parole on count 1, plus a consecutive term of 25 years to life for the gun use enhancement on count 1. Defendants were also sentenced to life imprisonment with the possibility of parole on count 2, to run consecutively with the count 1 sentence, and to a consecutive term of 25 years to life for the gun use enhancement on count 2. No additional sentence was imposed for the gang enhancement on count 2. Count 3 against Medina was dismissed by operation of law. The court sentenced Mora to the midterm of two years on count 3, plus the midterm of three years for the gang enhancement attendant to count 3; this sentence was stayed pursuant to section 654. On the charge of carrying a concealed firearm, of which Mora had been convicted in his first trial, the court sentenced him to the midterm of two years, which was to run concurrently with the sentence on count 1. Parole revocation fines and restitution fines, as discussed in detail, post, were imposed. Both defendants timely appealed.
Discussion
I. Violation of attorney client privilege
At the prosecutor’s request, Michael Petti, an investigator with the district attorney’s office, obtained compact disks containing recordings of 523 telephone calls made by Medina from jail. The prosecutor had a practice of telling his investigators not to listen to any attorney client calls, but simply to note that there was such a call. He did not, however, specifically remember giving such an instruction to Petti, and Petti did not recall receiving such an instruction. Petti listened to the disks, which contained 22 calls to Medina’s counsel’s telephone number. Petti made notes as he listened to the calls. Petti testified he had no independent recollection of what he heard, other than what was in his notes. Petti could not be sure he stopped listening to the recordings when he realized a call was made to an attorney.
The prosecutor never listened to any of the recordings of Medina’s telephone calls, and was not advised of the content of any calls between Medina and his counsel. The prosecutor did not read Petti’s summary of the calls, and did not discuss the calls with Petti.
After considering Medina’s motion to dismiss the case or recuse the district attorney’s office, the trial court made the following findings: (1) the Riverside County jail’s policy of recording all telephone calls by inmates, unless an inmate’s counsel has had recording of calls to their office blocked, violates section 636, subdivision (a); (2) Medina did not give permission for his telephone calls with his counsel to be recorded; (3) 22 telephone calls between Medina and his counsel were recorded in violation of section 636, subdivision (a); (4) district attorney investigators other than Petti did not listen to recordings of the calls; (5) Petti violated section 636, subdivision (b); (6) Petti should reasonably have known, at least by the time he listened to a two and one half minute telephone call recorded on October 21, 2003, that he was listening to conversations between Medina and his counsel; (7) it was unclear from Petti’s testimony “what portion or all of the conversations that he actually listened to”; (8) Petti’s summary of the telephone calls did not give any specifics of the conversations between Medina and his counsel; (9) Petti appeared truthful in testifying he did not presently recall the content of the recorded telephone calls, other than what was in his summary; and (10) the prosecutor did not listen to the recordings or review Petti’s summary.
“(a) Every person who, without permission from all parties to the conversation, eavesdrops on or records, by means of an electronic device, a conversation, or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and that person’s attorney, religious adviser, or licensed physician, is guilty of a felony. [¶] (b) Every person who, intentionally and without permission from all parties to the conversation, nonelectronically eavesdrops upon a conversation, or any portion thereof, that occurs between a person who is in the physical custody of a law enforcement officer or other public officer and that person’s attorney, religious adviser, or licensed physician, is guilty of a public offense. This subdivision applies to conversations that occur in a place, and under circumstances, where there exists a reasonable expectation of privacy, including a custody holding area, holding area, or anteroom. This subdivision does not apply to conversations that are inadvertently overheard or that take place in a courtroom or other room used for adjudicatory proceedings. A person who is convicted of violating this subdivision shall be punished by imprisonment in the state prison, or in the county jail for a term not to exceed one year, or by a fine not to exceed two thousand five hundred dollars ($2,500), or by both that fine and imprisonment.” (§ 636, subds. (a) & (b).)
The trial court denied the motion to dismiss, due to the lack of any actual prejudice. The court also denied the motion to recuse the district attorney’s office, but recused Petti from the case and ordered Petti to have no contact with anyone in the district attorney’s office or any third party regarding this case.
We review the denial of Medina’s motion to dismiss the case due to the prosecutor’s misconduct for abuse of discretion. (People v. Zapien, supra, 4 Cal.4th at pp. 963 966.)
Initially, we express our profound disappointment with the government’s violation of the attorney client privilege. “The attorney client privilege, which authorizes a client to refuse to disclose, and prevents others from disclosing, confidential communications between lawyer and client, is considered a hallmark of our jurisprudence. [Citations.] The privilege is fundamental to our legal system and furthers the public policy of ensuring every person’s right to freely and fully confer with and confide in his or her lawyer in order to receive adequate advice and a proper defense. [Citation.]” (People v. Navarro (2006) 138 Cal.App.4th 146, 156.) We agree with the trial court that by creating an “opt out” system by which all inmates’ calls with their counsel were recorded unless counsel had taken steps to block such recordings, the Riverside County jail violated section 636, subdivision (a). By listening to the recordings, Petti also appears to have violated section 636, subdivision (b). The trial court’s findings in this regard are amply supported by the record.
But dismissal of a case due to improper conduct by the prosecution is a drastic, disfavored remedy, reserved for the most egregious cases. (United States v. Haynes (9th Cir. 2000) 216 F.3d 789, 796 797.) “[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.... The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.” (United States v. Morrisson (1981) 449 U.S. 361, 365 366, fns. omitted; see Black v. United States (1966) 385 U.S. 26, 28 29 [conversations between the defendant and his counsel were surreptitiously recorded by Federal Bureau of Investigation agents; conviction reversed and new trial ordered “so as to afford the petitioner an opportunity to protect himself from the use of evidence that might be otherwise inadmissible”].)
“Where it appears that the state has engaged in misconduct, the burden falls upon the People to prove, by a preponderance of the evidence, that sanctions are not warranted because the defendant was not prejudiced by the misconduct. [Citations.]” (People v. Zapien, supra, 4 Cal.4th at p. 967.)
This case is distinguishable from those on which Medina relies. In Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1255, the prosecutor instructed her investigator to eavesdrop on a conversation between the defendant and his counsel in the courtroom holding area. At a hearing on the defendant’s motion to dismiss, the prosecutor and the investigator invoked their right to remain silent and refused to answer questions. (Id. at p. 1257.) “Where, as here, the prosecutor orchestrates an eavesdropping upon a privileged attorney client communication in the courtroom and acquires confidential information, the court’s conscience is shocked and dismissal is the appropriate remedy. Even when the issue is narrowed to a Sixth Amendment violation, dismissal is still appropriate because here there is a ‘substantial threat of demonstrable prejudice’ as a matter of law. [Citation.]” (Id. at p. 1261, fn. omitted.) “Here the trial court found that confidential matters were discussed and overheard. In this situation, the harm is apparent and the substantial threat of demonstrable prejudice is inherent. There must be an ‘... incentive for state agents to refrain from such violations.’ [Citation.] The instant violation is not a ‘no harm no foul’ situation.” (Id. at p. 1263.)
Similarly, in Barber v. Municipal Court (1979) 24 Cal.3d 742, 759 760, the Supreme Court ordered the dismissal of charges against the defendants due to the government’s intentional violation of their attorney client privilege. An undercover police officer had infiltrated a group of protesters and attended meetings between the protestors and their counsel, and then shared confidential, privileged communications with others. (Id. at pp. 746 749.)
Here, the prosecutor established there was not a substantial threat of demonstrable prejudice to Medina. The trial court found the prosecutor did not listen to the tapes, did not read Petti’s summary of the tapes, and did not discuss the content of the tapes with Petti. Neither the prosecutor nor the police initiated the eavesdropping. In essence, the prosecution denied itself the fruits of the transgressions of Petti and the Riverside County jail. We find no abuse of discretion in the trial court’s denial of Medina’s motion to dismiss.
We also review the denial of Medina’s motion to recuse the district attorney from prosecuting the case for abuse of discretion. (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 728.) A recusal motion under section 1424 requires the trial court to answer two questions: (1) whether there is a conflict of interest; and (2) whether the conflict is so severe that the district attorney must be disqualified. (Hollywood v. Superior Court, supra, 43 Cal.4th at pp. 727 728.) Here, no conflict of interest existed because the prosecutor never came into possession of defendant’s confidential information. (See People v. Lepe (1985) 164 Cal.App.3d 685, 687 688 [a conflict of interest existed when the district attorney had previously represented the defendant in another case, and was therefore presumed to be in possession of the defendant’s confidential information].) The trial court found that the prosecutor never listened to Medina’s conversations with his counsel, read a summary about them, or discussed them with Petti. The court’s order recusing Petti and ordering him not discuss the case with anyone was a sufficient remedy for the violation of Medina’s attorney client privilege. We conclude the trial court did not abuse its discretion in denying the motion to recuse the district attorney’s office.
II. The trial court did not abuse its discretion in admitting Cerano’s testimony.
Over the objections of Medina and Mora, Christian Cerano testified he was a member of the CLPS gang, and often hung out with Medina and Mora at Lincoln Park. On July 27, 2001, Cerano was contacted at Lincoln Park and then questioned at the police station about a shooting that had occurred a week earlier. Cerano testified he told the police that he had heard who had committed the shooting. The court then admonished the juries as follows: “I want to inform and admonish both juries that Mr. Cerano is going to be testifying to information that he heard from a third source, from someone else. And that information—he’s being allowed to testify to that information not for the truth of the matter but solely for the purpose of explaining subsequent or a future conduct by law enforcement with respect to this investigation. [¶] So you are admonished, then, not to accept Mr. Cerano’s testimony again for the truth of the matter but simply to explain the further—subsequent conduct by law enforcement after having received this information.”
Following that admonishment, Cerano testified he had heard on July 27 that Mora, Alvarado, and Juan were involved in the shooting. Cerano had obtained this information, while at Lincoln Park, from members of his gang. Cerano remembered that Mora was present, but could not remember whether Mora had provided any information about the shooting. Cerano testified he told the detectives that Mora, Alvarado, and Juan were involved in the shooting; he could not remember whether he told the detectives Medina was involved.
Officer Ryan Railsback testified he interviewed Cerano on July 27. Cerano stated he had heard Juan was the shooter, and Mora and Alvarado were involved in the shooting. Cerano did not tell Officer Railsback that Medina was involved in the shooting. Mora was interviewed by the police later that day; based on information obtained from Mora, Medina was brought to the police station for questioning two days later.
The trial court’s admission of Cerano’s testimony is reviewed for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 8 10.)
Medina and Mora argue Cerano’s testimony was hearsay, and irrelevant. We conclude the trial court did not abuse its discretion in determining Cerano’s testimony was not hearsay, because it was offered for a non hearsay purpose—its effect on the investigating officers. “An out of court statement offered to prove that the statement imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief, is not hearsay. The statement is not hearsay because it is the hearer’s reaction to the statement that is relevant, not the truth of the matter asserted by the declarant. [Citations.]” (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2009) Hearsay and Non hearsay Evidence, § 1.34, pp. 25 26.)
The question then becomes whether the non hearsay purpose for admitting Cerano’s testimony was relevant to an issue in dispute. (People v. Armendariz (1984) 37 Cal.3d 573, 585.) Medina and Mora both argued that the investigating officers destroyed the tapes of their police interviews, and then fabricated defendants’ confessions. The Attorney General contends the testimony was relevant to the credibility of the investigating officers. We conclude the trial court did not abuse its discretion in determining Cerano’s testimony was relevant to the issue of the detectives’ credibility.
III. The trial court’s error in admitting evidence that Juan fled to Mexico after the shooting was not prejudicial.
Over defendants’ objections, the prosecution offered the testimony of Jose, Juan’s father. Jose testified as follows:
“Q. [W]hen was the last time you saw Juan?
“A. I don’t recall, but when he was here like in June—June or July. Something like that.
“Q. June or July of what year?
“A. 2001.
“Q. Is that the last time you’ve seen him?
“A. Yes. Here, yes.
“Q. When you call him – or do you call your son?
“A. Yes.
“Q. Where do you call in order to talk to him? [¶]... [¶]
“The witness: Mexico.”
Defendants argue the evidence was speculative and irrelevant and should have been excluded.
The Attorney General argues the evidence was probative because it corroborated the detectives’ testimony that defendants had confessed to the crime, and implicated Juan as the shooter. The Attorney General also contends the probative value of the evidence was not substantially outweighed by the probability its admission would create a substantial danger of undue prejudice.
The trial court also permitted the evidence because it would tend to “substantiate or corroborate Mr. Cerano’s statements that he gave to law enforcement, but more importantly the statements each of the two defendants gave to law enforcement.” Because Cerano’s out of court statements were not admitted for their truth, Jose’s testimony could not have been admitted to corroborate those statements.
We conclude that even if the trial court abused its discretion in admitting Jose’s testimony, any error was harmless. In considering whether the trial court’s error was prejudicial, defendants argue the Chapman v. California (1967) 386 U.S. 18, 24, standard should apply because the error rendered the entire trial fundamentally unfair, citing Randolph v. California (9th Cir. 2004) 380 F.3d 1133, 1147. We disagree. “Denial of due process in a criminal trial ‘is the failure to observe that fundamental fairness essential to the very concept of justice.... [W]e must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.’ [Citation.]” (Kealohapauole v. Shimoda (9th Cir. 1986) 800 F.2d 1463, 1465.) Defendants have not established the trial court’s error in admitting Jose’s testimony fatally infected the trial, or necessarily prevented a fair trial. Instead, we consider whether, under People v. Watson (1956) 46 Cal.2d 818, 836, it is reasonably probable the jury’s verdict would have been different if Jose’s testimony had been excluded.
In the first trial, where this testimony was not offered, Alvarado was acquitted, and the jury could not reach a verdict as to Mora.
The prosecutor argued to the Medina jury that the connection between Medina’s alleged statement to the detectives that Juan was the shooter and Juan’s flight to Mexico was proof the detectives’ testimony regarding defendants’ confessions was accurate.
The prosecutor relied even more heavily on Jose’s testimony in his closing argument to the Mora jury. “July 16th is very important. So we know now that Wicked [Juan] is the shooter. And you know from his father, Jose Garcia, that Wicked, in July of 2001, left for Mexico and never came back. [¶]... I suppose the detectives knew about that, right, that he would flee to Mexico and we could use that here as evidence; that we would bring his father in to say, ‘My son, in July of 2001, when Paul Parker got shot, fled shortly thereafter to Mexico,’....” The prosecutor cited Jose’s testimony again in attempting to prove the accuracy of the detectives’ testimony about defendants’ confessions. The prosecutor argued that Cerano told detectives Mora, Alvarado, and Juan were involved in a shooting, “[a]nd that Wicked was the shooter. Funny thing, Wicked fled to Mexico.”
We conclude it is not reasonably probable the jury’s verdict would have been different if Jose’s testimony had not been admitted. Defendants had a motive to commit these crimes—payback for the shooting of Ruiz, a member of their gang. Defendants were implicated in the shooting by Cerano, and by their own statements to police. The shooters were seen driving a green Honda Civic, and when Medina was detained he was driving a green Chrysler Sebring, a similar looking car. Mora was in possession of a loaded firearm when he was detained; although no evidence tied this gun to the shooting on July 21, the Attorney General argues Mora’s gun possession “convey[ed] to the jury that Mora had no problem carrying a loaded gun.” Jose’s testimony was short and limited.
IV. The failure by law enforcement to preserve the audiotapes of defendants’ interviews did not amount to a due process violation, because bad faith on the part of law enforcement was not established, and the tapes would not necessarily have contained exculpatory evidence that could not otherwise have been obtained by defendants.
Police interviews of Medina, Mora, and Alvarado were conducted in interview rooms at the Police General Investigations Bureau. Although their interviews were taped, the tapes were either blank or inaudible. No other taped interview conducted by the police at that location during the time period from June 29 through August 17, 2001, had similar problems. Defendants moved to suppress testimony about defendants’ statements during the interviews as a sanction for the failure to preserve evidence. That motion was denied. During trial, defendants requested that the jury be instructed it could draw inferences against the prosecution if it found the police willfully failed to preserve the evidence. The trial court refused defendants’ proposed instructions.
The appropriate sanction for the failure to preserve or to destroy material evidence is a matter left to the sound discretion of the trial court. (People v. Memro (1995) 11 Cal.4th 786, 831.)
A. Motion to Dismiss
The trial court denied defendants’ motion to suppress testimony about defendants’ statements, finding the loss of the audiotapes was not a result of bad faith on the part of the police, and evidence of the interviews was available though other means.
Law enforcement has a duty to preserve “evidence that might be expected to play a significant role in the suspect’s defense.” (California v. Trombetta (1984) 467 U.S. 479, 488, fn. omitted.) If the exculpatory value of the evidence is “apparent,” and the defendant is “unable to obtain comparable evidence by other reasonably available means,” a due process violation may be shown. (Id. at p. 489.) By contrast, if evidence that “might have exonerated the defendant” is not preserved, a defendant may establish a violation of due process only if he or she proves bad faith on the part of law enforcement. (Arizona v. Youngblood, supra, 488 U.S. at pp. 57 58 [negligent failure to preserve semen samples and stained clothing which might have exonerated the defendant did not violate due process].)
Here, the trial court found that the failure to properly record or preserve the audiotapes of defendants’ interviews was inadvertent; this finding was supported by substantial evidence. Sergeant Steve Johnson testified the recording equipment that was used in attempting to tape defendants’ interviews “was a source of constant frustration” for the police detectives. At least five law enforcement officers had been present for defendants’ interviews, and their testimony about the content of those interviews was consistent. Sergeants Hardin and Showalter testified Mora and Medina separately admitted their involvement in the shootings of Parker and Maneafaiga, and provided specific details about the crimes. Defendants did not offer any evidence to contradict this testimony. Because the tapes might have exonerated defendants, but would not necessarily have exonerated them, and no bad faith was shown, no due process violation occurred.
B. Jury Instructions
With regard to the lost audiotapes of defendants’ interviews, the trial court instructed the Medina jury as follows: “You have heard evidence that the defendant made oral statements before the trial. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements. [¶] If you find that the police are at fault for the loss of recorded statements of the defendant, then you may consider that fact for the purpose of: One, evaluating the credibility of the person testifying about the statement; and two, in evaluating the accuracy of the testifying witness’s accounts of those statements. [¶] You must consider with caution evidence of a defendant’s oral statements unless it was written or otherwise recorded.” A virtually identical instruction was read to Mora’s jury.
Defendants asked that the jury be instructed regarding the potentially willful nature of the loss of the recorded statements. First, Mora offered the following instruction: “In determining what inferences to be drawn from the loss of recordings in the people’s case, you may consider, among other things, the people’s failure to explain such loss, or the willful suppression of evidence by the police, if you decide such is the case.” The second pinpoint instruction requested by Mora reads as follows: “In addition, one could reasonably expect the police would take precautions to prevent the destruction of important evidence against the accused, such as recordings of admission or confessions. Any willful failure to preserve that evidence may suggest it lacked importance to the police, and consequently did not contain admissions or confessions. It is a matter for you to decide whether the loss of evidence was willful, and what importance to attach to that fact.” The trial court refused to give these proposed instructions to either jury.
The instructions proposed by Mora contained additional language. On appeal, defendants have conceded that the trial court did not err in excluding some portions of the proposed instructions. We will address only those portions of the instructions that defendants contend were erroneously omitted.
Our Supreme Court has held that in the absence of bad faith on the part of law enforcement in failing to preserve evidence, a trial court need not instruct the jury regarding inferences that may be drawn in favor of defendants or against the prosecution. (People v. Cook (2007) 40 Cal.4th 1334, 1351; People v. Farnam (2002) 28 Cal.4th 107, 166 167.) As explained, ante, the trial court’s finding of lack of bad faith by law enforcement was supported by substantial evidence; we therefore conclude the trial court did not err in refusing the proposed instructions.
V. The prosecutor’s misconduct in vouching for his witnesses was not prejudicial; the objection was sustained; and the misconduct could have been cured by a timely request for an admonition.
Medina argues the prosecutor committed misconduct during his rebuttal closing argument to the Medina jury “by vouching for the credibility of the officers who testified [Medina] confessed” to his involvement in the shooting.
During rebuttal, the prosecutor made the following argument: “You will spend hours and hours trying to come up with a reason why [the police lied about and covered up the loss of the audiotapes]. This case has been litigated for years. Okay. They have looked at everything. We have looked at everything. Turned every stone. Wouldn’t you know the only thing that they can come up with is speculation on Detective Shumway being the person who started this whole ball of wax; that’s it. [¶] Because if you are to believe that—and we are involved, the district attorney’s office is involved in that litigation, and you buy off that Shumway is lying, and all these guys are lying, then we are suborning perjury.” Medina’s counsel’s objection on grounds of improper vouching was sustained. Counsel did not request that the jury be admonished.
A prosecutor may not vouch for the credibility of a witness by referring to evidence outside the record, or by invoking the prestige or reputation of the district attorney’s office. (People v. Bonilla (2007) 41 Cal.4th 313, 336 337.) A prosecutor may offer assurances based on the facts of the record and the inferences that may be reasonably drawn from those facts. (Ibid.)
The prosecutor’s rebuttal argument improperly invoked the reputation of the district attorney’s office by implying that the police witnesses could not be lying because the district attorney’s office would not call them as witnesses at the risk of committing the felony of suborning perjury. (§§ 126, 127.) It therefore constituted improper vouching, and prosecutorial misconduct. In People v. Alvarado (2006) 141 Cal.App.4th 1577, 1583, the defendant challenged the following portion of the prosecutor’s rebuttal closing argument: “‘I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it. To insinuate, suggest, or to say outright that I would risk my job, my profession, multiple police officers—I think one detective was on what, 33 years, another one was 27, another one just starting his career—to suggest that any of us would put our professional career on the line because this thug took some kid’s bike is offensive and it is preposterous.’” (Italics omitted.) The appellate court concluded the prosecutor’s comments were misconduct. “[T]he prosecutor impermissible invited the jury to convict Alvarado based on her opinion that he was guilty and on the prestige of her office.... The only reasonable inference from these comments is that (1) the prosecutor would not have charged Alvarado unless he was guilty, (2) the jury should rely on the prosecutor’s opinion and therefore convict him, and (3) the jurors should believe [the victim] for the same reason.” (Id. at pp. 1584 1585.) The court found the misconduct was prejudicial. (Id. at pp. 1585 1586.) However, because the prosecutor vouched for the credibility of the sole eyewitness, the evidence was not overwhelming, and the prosecutor’s argument contained other prejudicial comments that were not objected to, the vouching in that case was “so prejudicial that an admonition would not have dispelled the harm.” (Ibid.)
Similarly, where a plea agreement with a testifying witness is read to the jury, it has been found to be error not to have excised the portion stating that the agreement would not go forward if the witness did not submit to a preliminary interview to assess his or her credibility, or if district attorney’s office decided the witness was not telling the truth. (People v. Fauber (1992) 2 Cal.4th 792, 821 822.)
The key is whether the prosecutor’s misconduct was prejudicial, and whether an admonishment would have cured the harm. (People v. Alvarado, supra, 141 Cal.App.4th at p. 1585; see People v. Padilla (1995) 11 Cal.4th 891, 946 [in response to defense argument that ballistics expert made up his conclusion, prosecutor argued expert would have risked his lengthy career by lying; even if argument improper, it was not prejudicial].) A prosecutor’s statement that “‘I wouldn’t deceive you’” or that he would not lie to the jury is not prejudicial. (People v. Medina (1995) 11 Cal.4th 694, 757 758; People v. Sully (1991) 53 Cal.3d 1195, 1236.)
The error here was not prejudicial. True, almost the entire case against defendants was their alleged confessions, which rested entirely on the credibility of the detectives. However, an admonition could have cured the misconduct. (People v. Houghton (1963) 212 Cal.App.2d 864, 871 872 [prosecutor committed misconduct by stating, “‘I vouch for the credibility of Inspector Warner and Sergeant Radford 100 percent’”; misconduct was not prejudicial because it could have been cured by a prompt admonition, and because evidence against the defendant was strong].)
VI. The attempted murder convictions must be reversed because there is insufficient evidence that Maneafaiga was an intended victim or that defendants shared an intent to kill Maneafaiga.
Medina and Mora were convicted as aiders and abettors of the attempted murder of Maneafaiga. Both Medina and Mora argue there was insufficient evidence of the shooter’s intent to kill Maneafaiga, and therefore argue their convictions on count 2 must be reversed.
The prosecution relied on the kill zone theory. In Bland, supra, 28 Cal.4th at page 327, the California Supreme Court rejected the argument that transferred intent could apply in a case of attempted murder. The Court did, however, hold that a defendant may have a concurrent intent to kill more than one person, and may be found guilty of the attempted murder of those who are not the primary target of the attack. “The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. As to the non targeted members of the group, the defendant might be guilty of crimes such as assault with a deadly weapon or firing at an occupied vehicle. [Citation.] More importantly, the person might still be guilty of attempted murder of everyone in the group, although not on a transferred intent theory. The Ford [v. State (Md. 1993) 625 A.2d 984] court discussed this last point in explaining why one of its earlier cases [citation] correctly affirmed attempted murder convictions even though it erred in relying on transferred intent. ‘The result in [State v.] Wilson [(Md. 1988) 546 A.2d 1041] can best be explained and justified by distinguishing between transferred intent and what is essentially concurrent intent.’ [Citation.]” (Bland, supra, 28 Cal.4th at p. 329, italics added.) The court gave as examples the use of a bomb on an airplane, intended to kill one person, and the use of an automatic weapon on a group of people, one of whom the defendant has the intent to kill. (Id. at pp. 329 330.) In Bland itself, the defendant fired into a car driven by a rival gang member. (Id. at p. 318.) The defendant was convicted of the attempted murders of two passengers in the car, using a kill zone theory of concurrent intent. (Ibid.)
The Medina and Mora juries were instructed with CALCRIM No. 600, as follows: “The defendant is charged in Count 2 with having committed the crime of attempted murder. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: One, the defendant took at least one direct but ineffective step toward killing another person; and, two, the defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder, or obtaining or arranging for something needed to commit murder. [¶] A direct step is one that goes beyond planning or preparation and shows that a person is putting his plan into action. [¶] A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ [¶] In order to convict the defendant of the attempted murder of [Maneafaiga], who is the named victim in Counts 2 and 3, the People must prove that the defendant not only intended to kill 1200 Blocc Crip gang members, but also either intended to kill [Maneafaiga] or intended to kill anyone within that kill zone. If you have a reasonable doubt whether the defendant intended to kill [Maneafaiga], or intended to kill a 1200 Blocc Crip gang member by harming everyone in the kill zone, then you must find that the defendant is not guilty of the attempted murder of [Maneafaiga].”
California cases have applied the kill zone theory to support a conviction for attempted murder where the defendant fires a weapon into a car carrying multiple passengers (People v. Smith (2005) 37 Cal.4th 733, 746 747 [single shot at mother supports attempted murder conviction for baby in the direct line of fire in the car with mother]; People v. Campos (2007) 156 Cal.App.4th 1228, 1244 [one dozen shots fired into moving car at close range; driver and passenger killed; the defendant was convicted of attempted murder of second passenger]), or when the defendant fires shots into the intended victim’s apparently occupied bedroom (People v. Felix (2009) 172 Cal.App.4th 1618, 1625 1626), or when the defendant sets arson fires at both entrances to the victim’s house, not knowing others are present in the house (People v. Adams (2008) 169 Cal.App.4th 1009, 1023), or when the defendant fires shots at a group of people standing in front of a market doorway, intending to shoot one member of the group (People v. Bragg (2008) 161 Cal.App.4th 1385, 1390, 1393 1394).
In People v. Anzalone (2006) 141 Cal.App.4th 380, 395, the appellate court concluded the trial court had erred by permitting the prosecutor to argue defendant was guilty of attempted murder under a kill zone theory. “Contrary to the prosecutor’s argument, an attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them. The prosecutor’s argument incorrectly suggests that a defendant may be found guilty of the attempted murder of someone he does not intend to kill simply because the victim is in some undefined zone of danger. In fact, to be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person.” (Id. at pp. 392-393.) Because defense counsel had failed to object to the prosecutor’s argument, the appellate court concluded the defendant had received ineffective assistance of counsel, and reversed the attempted murder convictions. (Id. at pp. 395 396.)
The Supreme Court recently revisited the rule of Bland in Stone, supra, 46 Cal.4th at page 136, in which the defendant was convicted of one count of attempted murder for firing a single gunshot at a group of 10 people. The Supreme Court, after reviewing Bland, and while affirming the rule “that a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind” (Stone, supra, 46 Cal.4th at p. 140), concluded the facts of the case did not support the giving of an instruction on the kill zone theory of intent for attempted murder. “The kill zone theory simply does not fit the charge or facts of this case. That theory addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, non targeted, persons. Here, defendant was charged with but a single count of attempted murder. He was not charged with 10 attempted murders, one for each member of the group at which he shot. As the Court of Appeal explained, ‘There was no evidence here that [the defendant] used a means to kill the named victim... that inevitably would result in the death of other victims within a zone of danger. [The defendant] was charged only with the attempted murder of [the victim] and not with the attempted murder of others in the group on which [the defendant] fired his gun.’” (Stone, supra, 46 Cal.4th at p. 138.)
Was there sufficient evidence that Medina and Mora had the concurrent intent to kill Maneafaiga because he was within a kill zone? Viewed most favorably to the judgment, Juan, Mora, Medina, and Alvarado drove to an alley near the intersection of University and Ottawa. Juan and Mora got out of the car, and ran down the alley toward the intersection. A group of Black men were gathered in front of a liquor store near the intersection. Juan fired four shots at the group from across the intersection. Parker, who was crossing the street, died as a result of a gunshot wound to the back. Maneafaiga, who was standing in front of a fast food restaurant next door to the liquor store, was shot in his calf. Juan and Mora ran back to the car parked in the alley and drove away with the others.
We conclude the kill zone theory was not applicable in this case. Maneafaiga was not defendants’ intended target. There was no evidence presented that defendants used a means of killing rival gang members that would inevitably—or even likely—result in the deaths of others in the immediate area. (Stone, supra, 46 Cal.4th at p. 138; People v. Anzalone, supra, 141 Cal.App.4th at pp. 392 393.)
Although defendants’ convictions for attempted murder must be reversed, substantial evidence supports convictions for the lesser included offense of assault with a firearm. (See generally Bland, supra, 28 Cal.4th at p. 329 [“The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. As to the nontargeted members of the group, the defendant might be guilty of crimes such as assault with a deadly weapon or firing at an occupied vehicle”].) Under the authority of section 1260 and People v. Navarro (2007) 40 Cal.4th 668, 677, we modify the judgments to reflect convictions for assault with a firearm.
VII. The additional term of 25 years to life does not violate double jeopardy by relying on the same fact pertaining to the murder conviction and the attendant firearm enhancement.
In addition to their life sentences for murder, the trial court imposed 25 years to life sentence enhancements under section 12022.53, subdivision (d), which provides, in relevant part: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a)... personally and intentionally discharges a firearm and proximately causes... death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” Murder is one of the felonies specified in section 12022.53, subdivision (a).
Both Medina and Mora argue the additional term of 25 years to life under section 12022.53, subdivision (d), violates principles of double jeopardy, because the trial court relied on the same fact—proximately causing a death—for both the murder conviction and the enhancement. Medina and Mora concede, however, that their argument has been rejected by the California Supreme Court. (People v. Izaguirre, supra, 42 Cal.4th at p. 134.) We find no error.
Medina and Mora acknowledge that this court is bound to follow the Supreme Court’s decision in Izaguirre, and that they have raised the issue in this court to preserve it for later review.
VIII. Medina’s parole revocation fine must be stricken.
The trial court imposed a $1,000 parole revocation fine against Medina, pursuant to section 1202.45; the fine was suspended unless Medina’s parole was revoked.
Medina argues, and the Attorney General concedes, that a parole revocation fine cannot be imposed against a defendant who is sentenced to a term of life imprisonment without the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 1185.) We direct the trial court to strike Medina’s parole revocation fine.
IX. Mora’s abstract of judgment must be corrected.
Mora makes several claims regarding errors in the abstract of judgment. First, Mora argues the abstract of judgment does not accurately reflect the victim restitution fine imposed by the trial court. On September 7, 2007, the trial court imposed a restitution fine of $1,000, pursuant to section 1202.4, and imposed and suspended a parole revocation fine of $1,000, pursuant to section 1202.45. At a second sentencing hearing on September 21, the trial court granted Mora’s motion to reduce the fines to $200. The abstract of judgment, however, reflects the initial $1,000 fines. The Attorney General concedes that the abstract of judgment should be modified to reflect the correct amount of the statutory fines. We direct the trial court to correct the abstract of judgment to reflect that Mora’s restitution fine and parole revocation fine are in the amount of $200. The parole revocation fine remains suspended.
Mora next argues, and the Attorney General concedes, that the abstract of judgment must be modified to reflect that Mora’s sentence on count 3—assault with a firearm—was stayed, rather than imposed concurrently. Because we have held, ante, that the attempted murder conviction is reversed and the judgment must be modified to reflect a conviction for assault with a firearm, this argument is moot.
Mora’s abstract must be modified to list separately Mora’s concurrent sentence on count 4—carrying a loaded firearm.
The charge of carrying a loaded firearm was count 3 in the original information. For sentencing purposes, count 3 of the original information was amended as count 4.
Mora’s presentence custody credits are listed on the abstract of judgment for Mora’s determinate sentence, but not on the abstract for the indeterminate sentence. A defendant sentenced to life imprisonment without the possibility of parole is nevertheless entitled to presentence custody credits (People v. DeJesus (1995) 38 Cal.App.4th 1, 33), and the abstract must be modified to reflect those credits.
Finally, Mora argues his presentence custody credits must be increased from 2234 days to 2248 days, to reflect the fact that the sentencing process was not completed until September 21, 2007. The Attorney General contends that because the abstract reflects a sentencing hearing date of September 7, Mora is only entitled to custody credits through that date. It is undisputed on this record that Mora’s sentencing hearing was not completed on September 7, but was actually completed on September 21. We conclude Mora is entitled to 2248 days of custody credit, and the abstracts must be modified to reflect a sentencing date of September 21, 2007.
Disposition
Defendants’ convictions for attempted murder are reversed. The judgments are modified to reflect convictions for assault with a firearm. The matters are remanded for resentencing. We direct the trial court to correct Medina’s abstract of judgment to strike the parole revocation fine. We further direct the trial court to correct Mora’s abstract of judgment as follows: (1) reflect that the restitution and parole revocation fines are $200 each; (2) list Mora’s presentence custody credits on the abstract for his indeterminate sentence; and (3) reflect that Mora is credited with 2248 days of presentence custody credits. We further direct the trial court prepare amended abstracts of judgment, and forward certified copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgments are affirmed as modified.
WE CONCUR: BEDSWORTH, ACTING P. J. O’LEARY, J.