Opinion
D075011
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHELLE MONIQUE MIRANDA, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald E. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB 1302333) APPEAL from a judgment of the Superior Court of San Bernardino County, Harold T. Wilson, Jr., Judge. Affirmed in part, reversed in part, and remanded with directions. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald E. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant William Jason Jones, the jealous boyfriend of defendant Emeshia Delayshon Montgomery, conducted a prolonged attack of the victim John Doe with the encouragement of defendant Michelle Monique Miranda. Under an aiding and abetting theory, a jury convicted Miranda of kidnapping (count 1, Pen. Code, § 207, subd. (a)), false imprisonment (count 2, § 236), assault by means likely to produce great bodily injury (count 3, § 245, subd. (a)(4)), second degree robbery (count 4, § 211), torture (count 5, § 206), and aggravated mayhem (count 6, § 205). The jury also convicted Miranda and Montgomery of being an accessory after the fact (count 11, § 32).
Undesignated statutory references are to the Penal Code.
The jury convicted Jones of counts 1 through 6, in addition to other crimes.
The court sentenced Miranda to indeterminate life terms for torture and aggravated mayhem, one of which is stayed, and to an aggregate determinate term of five years and eight months on the other convictions.
Miranda appeals, contending: (1) sufficient evidence does not support her convictions as an aider and abettor to torture, aggravated mayhem, and robbery; (2) her accessory after the fact conviction was impermissibly based on the same conduct underlying the predicate offenses of which she was also convicted for aiding and abetting Jones; (3) her false imprisonment conviction was a lesser included offense of her kidnapping conviction; (4) the trial court committed instructional error by (a) failing to include her in the instructions for the substantive offenses and indicate the specific intent necessary for her conviction on each charge, (b) failing to instruct on lesser included offenses, (c) improperly including language in the aiding and abetting instruction that implied she could be convicted of charges in addition to the offense for which the evidence shows she aided and abetted, and (d) improperly instructing that jurors could consider a statement by Jones as evidence of her consciousness of guilt; (5) the trial court violated her constitutional rights by admitting Jones's interview statements pertaining to her; and (6) cumulative errors warrant reversal. In a supplemental brief, Miranda argues, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that the trial court violated her due process rights by imposing various fees and fines without first making an ability to pay determination.
We conclude that Miranda's false imprisonment conviction was a lesser included offense of her kidnapping conviction and remand with directions to dismiss the false imprisonment conviction. We reject her remaining contentions and affirm the judgment as modified.
FACTUAL BACKGROUND
Doe testified that he met Miranda and then met Jones and Montgomery a few weeks later. He described Miranda as a friend who he met with about once a week to use methamphetamine. On the morning of June 3, 2013, Doe went to Montgomery's house to pay her and Jones money that he owed them. Doe met Montgomery and gave her some money and about $15 worth of methamphetamine.
Later that day, Miranda appeared at the apartment complex where Doe's mother lived. Miranda suggested that she and Doe go to Montgomery's house. Doe claimed that Miranda initially acted tired and sluggish, but that her behavior changed when they headed toward Montgomery's home, stating that Miranda got "all energized like if she knew something was planned or going to happen."
As the pair approached the gate to the complex where Montgomery lived, Miranda moved behind him. At the door to Montgomery's apartment, Jones told Doe to come inside, tried to grab him and pull him inside, but Doe resisted. As Jones grabbed for him again, Miranda "bumped" him from behind allowing Jones to yank him inside. Jones threw Doe on a sofa. Jones asked Doe if he was "messing around" with Montgomery and then "pulled out a knife, and [Jones] started cutting inside of [Doe's] ears, [his] nostrils, started jabbing [him] in the side of [his] legs, on the inside of [his] legs, and started punching [him]." Doe claimed that this went on for a half-hour while Miranda "cheered him on" and another man held him by the elbows.
After about a half-hour, Doe's hands were tied. Jones and the other man moved him into the bathroom because they did not want him bleeding in the living room. The men then "hog tied" Doe's hands and ankles together with another cord arching his head and legs back. They also put a rag in Doe's mouth and tied another rag around his head. The men slammed Doe head first into the corner of the bathroom.
Jones brought Montgomery into the bathroom, and had intercourse, asking Doe "This is what you want?" Jones put lit cigarettes on Doe's chest and stomach and told him to not knock them off until he and Montgomery finished having intercourse. Jones and Montgomery then moved to the living room and closed the bathroom door. When Doe made noise, Jones opened the door and beat him. Jones pulled Doe's pants down and repeatedly tried to sodomize him with a broomstick. While in the bathroom, Jones also tried to extract one of Doe's teeth with a pair of pliers. Although Jones was not successful at the time, Doe later lost the tooth.
Jones stole items from Doe included his house keys, photographs of Doe's children, money, and about $30 worth of methamphetamine. Jones, Montgomery, Miranda, and the other man then smoked Doe's methamphetamine. Doe overheard Jones, Miranda, and Montgomery formulate a plan to call the police and report that Doe had broken into Montgomery's apartment. He heard them "feuding" about exactly how to phrase their report. The apartment suddenly became quiet, leading Doe to believe that everyone except for Montgomery had left. Doe tried to free himself, but Montgomery appeared and threatened to tell Jones that he was trying to escape.
At 11:43 the following morning, Montgomery called 911 and reported that Doe had broken into her apartment and that Jones had tied him up with a cord before going out to "tell his people." By then, Doe estimated that he had been left tied in the bathroom for at least seven hours. The responding officer found Doe lying facedown on the bathroom floor, hog-tied. Doe's hands were blistered and swollen, indicating he had been tied up for some time, and Doe had dried blood on his face.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
A. General Legal Principles
To determine the sufficiency of the evidence, "we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) Cal.App.4th 951, 955.) We must "view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Lewis (1990) 50 Cal.3d 262, 277.) Reversal based on insufficient evidence is warranted only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
" 'Where, as here, the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, "but our opinion that the circumstances also might reasonably be reconciled with a contrary finding" does not render the evidence insubstantial.' " (People v. Tafoya (2007) 42 Cal.4th 147, 170 (Tafoya).) As a result, we "must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
All persons involved in committing a crime are principals whether they commit the act constituting the offense, or merely aid and abet in its commission. (§ 31.) "[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561.) "Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225 (Perez).)
"When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person 'must share the specific intent of the [direct] perpetrator,' that is to say, the person must 'know[ ] the full extent of the [direct] perpetrator's criminal purpose and [must] give[ ] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator's commission of the crime.' " (People v. Lee (2003) 31 Cal.4th 613, 624.) "A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.] Aiding and abetting may be committed 'on the spur of the moment,' that is, as instantaneously as the criminal act itself." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.)
Mental state and intent are often proven circumstantially and "a defendant's actions leading up to the crime may be relevant to prove his or her mental state and intentions at the time of the crime." (People v. Thomas (2011) 52 Cal.4th 336, 355.) "[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, '[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' " (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) " 'Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.' " (Id. at p. 409.)
B. Torture
" 'Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain.' " (§ 206.) "Torture has two elements: (1) the infliction of great bodily injury; and (2) the specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (People v. Massie (2006) 142 Cal.App.4th 365, 370-371 (Massie).) "[R]evenge, extortion, and persuasion are self-explanatory. Sadistic purpose encompasses the common meaning, ' "the infliction of pain on another person for the purpose of experiencing pleasure." ' " (Id. at p. 371.) The length of time over which the offense occurred and the severity of any wounds are relevant, but not necessarily determinative. (Ibid.) Great bodily injury does not require permanent, disabling, or disfiguring injuries; abrasions, lacerations, and bruising may suffice. (People v. Odom (2016) 244 Cal.App.4th 237, 247 (Odom).) " '[C]ruel pain' is the equivalent to 'extreme' or 'severe' pain." (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202.)
Miranda argues that the evidence does not support her torture conviction because her aiding and abetting (i.e., her cheerleading) came during the first minutes of Jones's actions while Doe was still in the living room—whereas all the great bodily injury occurred while Doe was being assaulted in the bathroom after her cheerleading had ended. Miranda asserts that the evidence shows she encouraged an assault on Doe, not torture.
Here, while in the living room, Jones used a knife to cut the inside of Doe's ears and nostrils, jabbed the side and inside of his legs, cut into Doe's scalp, punched Doe, and choked him. While in the bathroom, Doe was hog tied and slammed head first into a corner. Jones burned Doe's chest and stomach with cigarettes. Jones stabbed Doe in the lower back with a knife, whipped him with a wire, and tried to pull out a tooth with a pair of pliers. Jones also tried to sodomize Doe with a broomstick. The jury could reasonably infer that Jones brutalized Doe to exact revenge against Doe for his alleged interest in Montgomery. Doe suffered burns, stab wounds, and blisters and indentations on his ankles from being bound. Notably, Miranda does not dispute that Jones committed torture based on the injuries he inflicted on Doe inside Montgomery's apartment. (Perez, supra, 35 Cal.4th at p. 1225 [aider and abettor liability requires proof of a crime committed by the direct perpetrator].) Miranda cited no authority suggesting the People needed to show that Doe suffered his injuries while she encouraged the crime.
To be guilty of torture as an aider and abettor, a person must have the intent or purpose of committing, encouraging, or facilitating the commission of torture. (People v. Hardy (2018) 5 Cal.5th 56, 96.) Stated differently, to convict Miranda of torture as an aider and abettor, the prosecution had to prove she knew Jones's unlawful intent to torture Doe and that she intended to assist in achieving those unlawful ends. (Perez, supra, 35 Cal.4th at p. 1225.) Miranda's knowledge of Jones's unlawful intent to torture Doe can be inferred from the fact that she watched Jones's actions in the living room for about a half-hour. Jones then moved Doe to a small bathroom with a toilet and a sink. Doe stated that he could see Miranda while inside the bathroom and that she was there during the entire incident. Based on this testimony, the jury could reasonably infer that Miranda directly witnessed most, if not all, of Jones's actions inside the bathroom.
Jurors could also reasonably infer Miranda's intent to encourage and assist in achieving Jones's unlawful ends from Miranda's conduct. Miranda suggested to Doe that they go to Montgomery's house and Doe observed Miranda's behavior change from sluggish to energized as if "she knew something was planned or going to happen." As Jones grabbed for Doe, Miranda "bumped" him from behind allowing Jones to pull Doe inside. As Jones cut, beat and choked Doe for almost a half-hour in the living room, Miranda did not express surprise or make even the slightest attempt to stop him. Rather, Doe described Miranda as "cheering like a cheerleader" and "taunting [Jones] on" saying " 'Beat his ass. Kick his ass. He deserves it. Fucking faggot. Kick his ass.' That's [sic] kind of cheering. 'He gets what he gets.' " When Doe screamed as Jones stuck a knife into Doe's ear, Miranda stated, "You deserve what you're getting."
Although Miranda's "cheerleading" ended once Doe was inside the bathroom, Doe could see Miranda from the bathroom and stated that she was there during entire incident. The jurors could reasonably infer that Miranda's continued presence in the apartment encouraged Jones's abuse of Doe inside the bathroom. (See, e.g., People v. Lopez (1981) 116 Cal.App.3d 882, 884-885 [defendant was liable for aiding and abetting rape, even though he was not personally present when companion actually raped victim, when defendant had a gun, was present when companion undressed and bit victim, and tied and gagged victim's husband].)
In summary, a rational trier of fact could have reasonably found beyond a reasonable doubt that Miranda acted with the intent to aid and abet Jones's torture of Doe.
C. Aggravated Mayhem
"A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body." (§ 205.) Aggravated mayhem requires proof of a specific intent to cause the maiming injury, that is, the permanent disability or disfigurement. (People v. Ferrell (1990) 218 Cal.App.3d 828, 833.) " 'A jury may infer a defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.' [Citation.] '[E]vidence of a "controlled and directed" attack or an attack of "focused or limited scope" may provide substantial evidence of' a specific intent to maim." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831, disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.)
Miranda does not dispute that Jones committed aggravated mayhem. Jones's actions in Montgomery's apartment displayed extreme indifference to Doe's physical well-being. (Ante, pt. I.B.) The jury could reasonably infer from the evidence that Jones intended to permanently disfigure Doe and succeeded in doing so. Putting a burning cigarette on a person will almost inevitably create a scar. Cutting a person numerous times with a knife is also likely to lead to scars and disfigurement. The jury saw photographs of Doe showing cigarette burns, burns from a metal coat hanger, stab wounds, and marks from being whipped with a wire. While testifying, Doe showed the jury indentations on his ankles from being tightly bound and scars from two stab wounds.
To be guilty of aggravated mayhem as an aider and abettor, a person must have the intent or purpose of committing, encouraging, or facilitating the commission of aggravated mayhem. The jury could reasonably conclude that Miranda knew of Jones's unlawful intent to permanently disfigure Doe and that she intended to assist in achieving those unlawful ends. While Doe sat in the living room, Miranda watched and encouraged Jones as he cut and jabbed Doe with a knife and punched him. The jury could reasonably infer that Miranda observed Jones slam Doe head first into the corner of the bathroom, hog-tie Doe, put lit cigarettes on Doe's body, and beat Doe when Doe made noise. Moreover, it takes no special expertise to know that permanent disfigurement is a foreseeable consequence of burning, hog-tying, cutting and stabbing a person. A rational trier of fact could have reasonably found beyond a reasonable doubt that Miranda acted with the intent to aid and abet Jones's aggravated mayhem of Doe.
D. Robbery
"Robbery is 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' (§ 211.) If the other elements are satisfied, the crime of robbery is complete without regard to the value of the property taken." (Tafoya, supra, 42 Cal.4th at p. 170.) Robbery is a continuing offense that begins at the time of the original taking and ends when the robber reaches a place of relative safety. (People v. Anderson (2011) 51 Cal.4th 989, 994.) To be guilty of robbery as an aider or abettor, a defendant must know of the perpetrator's intent to permanently deprive the victim of their property, intend that the perpetrator do so, and promote or encourage the crime in some way. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054; People v. Mora and Rangel (2018) 5 Cal.5th 442, 489 [defining intent required for robbery].)
Miranda contends Doe's testimony that she participated in smoking his methamphetamine is the only evidence showing she had anything to do with the robbery. She claims this evidence is insufficient to show that she was aware of the robbery, or that the methamphetamine belonged to Doe. We disagree.
Miranda did not unwittingly happen to be at the scene of the crime, nor was she a passive and innocent bystander. Rather, the jury could reasonably infer that Miranda participated in the robbery by luring Doe to Montgomery's apartment. Doe testified that Miranda was part of the "drug scene" and they had smoked methamphetamine together. Additionally, Doe testified that he had given Montgomery some methamphetamine the morning before the crimes. Miranda observed Jones torturing Doe and encouraged Jones. (Ante, pt. I.B.) At some point, Jones stopped the torture to rifle through Doe's pockets, taking photographs of Doe's children, house keys, some money, and methamphetamine. Although Doe's testimony is unclear whether the robbery occurred in the living room or the bathroom, the jury could reasonably infer that Miranda observed the taking.
While still tied and gagged in the bathroom, Doe saw Jones, Montgomery, Miranda, and the other man smoking his methamphetamine. He heard them talking as they smoked, saying " 'Damn, that's some good shit. Man, pass that pipe. Bitch, you're burning it. Man, pass that shit, man.' " A trier of fact may infer knowledge and intent where the defendant continues to participate in the robbery after the property is taken. (See Rosemond v. United States (2014) 572 U.S. 65, 78, fn 9.) After discussing a cover story with Montgomery, Jones and Miranda then fled the apartment. Based on all the evidence, the jury could reasonably infer that Miranda knew the methamphetamine belonged to Doe and that she shared Jones's intent to permanently deprive Doe of this property by smoking the methamphetamine. (See In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095 [juvenile aided and abetted robbery where she was present at the scene of the crime, fled with perpetrators, and was still with them later].) Accordingly, sufficient evidence supported the jury's verdict.
E. Accessory After the Fact
"Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony . . . is an accessory to such felony." (§ 32.) The essential elements to the crime of being an accessory after the fact are: "(1) someone other than the person charged as an accessory, that is to say, a principal, must have committed a specific completed felony; (2) the accused must have harbored, concealed or aided the principal; (3) with knowledge that the principal committed a felony; and (4) further, the hiding, concealing or harboring must be with the specific intent that the principal may escape from arrest and trial [citations]." (People v. Prado (1977) 67 Cal. App. 3d 267, 271 (Prado).)
Here, Miranda and Montgomery were both charged with being accessories after the fact to Jones's crimes. The court instructed the jurors that they could find Miranda and Montgomery guilty of being accessories after the fact to Jones's crimes under an uncharged conspiracy theory, namely that one of the defendants "committed at least one of the following overt acts to accomplish the crime of accessory after the fact: attempted to mislead the 911 dispatcher and/or attempted to mislead police officers." To find Miranda guilty of this crime, the court instructed the jury that Jones must have committed the crimes and that Miranda "either harbored, concealed, or aided" him with the intent that Jones "avoid or escape arrest, trial, conviction, or punishment."
Miranda claims no reasonable juror could have concluded that she acted as an accessory after the fact because there is no evidence showing her contribution to the scheme.
Here, the jury's guilty verdicts show it concluded that Jones committed the substantive crimes. Additionally, Doe's testimony supported the jury's implied conclusion that Miranda participated in the discussion and planning that culminated in Montgomery's false reports to the 911 operator and police. Namely, Doe testified that he heard Jones, Miranda, and Montgomery discuss what to do with him and that they decided to call the police and claim he committed burglary. He testified:
"I heard them say they were going to call the cops, and they were trying to figure out which one was going to call nine-one-one. So they started telling [sic], 'You go ahead and say what you're going to say if you're going to call the cops.' And then one started saying something, and then [Jones] was like, 'Stop. Stop. No. No. You tell me what you do if you call the cops. So if you dial nine-one-one, how would you say it?' And, like, they were going back and forth feuding like how they would phrase how I got there."
Thereafter, the apartment became quiet, leading Doe to believe that everyone except Montgomery had left. The following morning, Montgomery called 911 and reported that Doe had broken into her apartment. When police arrived, they treated Doe as a burglary suspect.
This evidence amply supported the jury's implied conclusion that Miranda participated in an uncharged conspiracy to falsely claim that Doe committed burglary to aid Jones and that she acted with the intent that Jones avoid or escape arrest, trial, conviction, or punishment.
As a secondary argument, Miranda notes that to find someone an accessory after the fact to a felony in the commission of which the person is also a principal by virtue of having aided and abetted its commission, the acts constituting the felony must have ceased at the time of the conduct that is alleged to violate section 32. (In re Malcolm M. (2007) 147 Cal.App.4th 157, 171 (Malcolm M.).) Accordingly, she claims that her conviction for being an accessory after the fact must be reversed because the substantive crimes (counts 1 through 6) were ongoing when she allegedly acted as an accessory. The People disagree, arguing that section 954 expressly permits the multiple convictions. Even if not foreclosed by section 954, the People contend that Miranda's claim fails because her accessory after the fact conviction was based on acts separate and distinct from those underlying her other convictions. As we shall explain, we agree with the People that Miranda's accessory after the fact conviction was factually separate from her other convictions. Based on this conclusion, we need not address the People's alternative argument that section 954 forecloses Miranda's claim.
In Prado, supra, 67 Cal.App.3d 267, the defendant was convicted of armed robbery and being an accessory after the fact to the same robbery, by aiding his codefendant in escaping arrest. (Id. at p. 270.) The court reversed the defendant's conviction of accessory after the fact because the same acts were relied upon to prove he committed both the offenses of robbery and accessory after the fact. (Id. at p. 274.) The Prado court stated that "when an accused is convicted of violation of . . . section 32, which necessarily requires that a principal have committed a specific completed felony and that he knowingly aided that principal with intent that the principal escape arrest, he cannot be convicted as a principal in that completed felony. His state of mind—the intent required to be an accessory after the fact—excludes that intent and state of mind required to be a principal. The requisite intent to be a principal in a robbery is to permanently deprive the owner of his property. Thus, this is a totally different and distinct state of mind from that of the accused whose intent is to aid the robber to escape. These are mutually exclusive states of mind and give rise to mutually exclusive offenses." (Id. at p. 273.)
Subsequent cases, however, have not followed Prado, supra, 67 Cal.App.3d 267 where the defendant's convictions as principal and accessory were based on two different and distinct acts. The court in People v. Riley (1993) 20 Cal.App.4th 1808 (Riley) limited Prado it its facts: "We agree with the Mouton [People v. Mouton (1993) 15 Cal.App.4th 1313 (Mouton)] court, that Prado should be limited to its facts (i.e., to cases in which the two convictions rest on the same acts), and that '[n]othing in section 32, defining accessories, suggests the Legislature intended as a matter of law to exclude those who, having perpetrated or intentionally assisted in the commission of a felony, then act further to harbor, conceal or aid the escape of another of the principals.' " (Riley, at p. 1816.) " '[T]here is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime. When a felony has been completed and a person knowingly and intentionally harbors, conceals or aids the escape of one of the felons, that person is guilty as an accessory to a felony under section 32, whatever his or her prior participation in the predicate felony. (See People v. Wallin (1948) 32 Cal.2d 803, 806-807 [actual killer could also be liable as accessory on theory that, after completion of the murder, she encouraged another to help her avoid arrest].)' " (Riley, at p. 1816, citing Mouton, at p. 1324.)
Here, the factual bases for the jury's verdicts on counts 1 through 6 (kidnapping, false imprisonment, assault by means likely to produce great bodily injury, torture, aggravated mayhem) were "distinct and independent" from the facts underlying count 11 (accessory after the fact). Counts 1 through 6 also involved distinct criminal intents from that required in count 11. The independent and additional act of conspiring with Jones and Montgomery to conceal Jones's crimes constituted the crime of accessory after the fact. (See Riley, supra, 20 Cal.App.4th at pp. 1814-1815.)
Moreover, we reject Miranda's argument that all of her crimes were continuing when count 11 took place. Miranda's actions as an accessory did not begin until after Jones completed three of the six charged offenses. Specifically, Doe testified that after Jones had committed assault by means likely to produce great bodily injury, torture, and aggravated mayhem—Jones, Miranda, Montgomery, and another man smoking his methamphetamine planned making a false police report to hide Jones's crimes. Everyone then left the apartment except for Montgomery, who later made her false police report. Thus, unlike Malcolm M., supra, 147 Cal.App.4th 157, in which the underlying crime was still in progress when the defendant attempted to help the perpetrator avoid arrest, Jones's conduct as the direct perpetrator and Miranda's conduct as an aider and abettor were largely completed when they and Montgomery planned to hide Jones's crimes.
We note that kidnapping is a crime that continues " 'until such time as the kidnapper releases or otherwise disposes of the victim and [the defendant] has reached a place of temporary safety . . . .' " (People v. Palacios (2007) 41 Cal.4th 720, 726.) Because false imprisonment is a necessarily included lesser offense of kidnapping (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121 (Magana)), it shares this characteristic. The crime of robbery also continues until all the acts constituting the offense have ceased, which occurs when the stolen property is carried away to a place of temporary safety. (People v. Flynn (2000) 77 Cal.App.4th 766, 772.) "A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property." (CALCRIM No. 1603.) We do not consider the continuing nature of these crimes as precluding Miranda's conviction for accessory after the fact because Jones had completed three of the charged crimes.
II. FALSE IMPRISONMENT CONVICTION
The jury convicted Miranda of false imprisonment and kidnapping. Miranda argues, the People concede, and we agree, that her conviction for false imprisonment must be reversed because false imprisonment is a necessarily included offense of kidnapping. (Magana, supra, 230 Cal.App.3d at pp. 1120-1121.) Where, as here, both the false imprisonment count and the kidnapping count are based on the same act or course of conduct, the defendant cannot be convicted of both offenses, and the conviction for the lesser offense must be reversed. (See People v. Sanders (2012) 55 Cal.4th 731, 736; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1416.) Accordingly, upon issuance of the remittitur, a judgment of dismissal is to be entered as to the lesser included offense of false imprisonment.
III. ADMISSION OF JONES'S INTERVIEW STATEMENTS
A. Additional Background
In a postarrest interview, Jones stated that Doe arrived at the apartment with Miranda and that he pulled Doe into the living room. Jones admitted slapping and punching Doe. He also cut Doe's back, scalp, and ears with a knife. He then forced Doe into the bathroom because Doe was bleeding in the living room.
In the bathroom, Jones kicked Doe several times and threatened to kill him. He tied Doe's hands and feet, burned him with cigarettes, whipped him with a phone cord, and had sex with Montgomery in front of Doe. Jones denied electrocuting Doe with a coat hanger, but admitted that he heated a hanger and hit Doe with it. He admitted asking for pliers, but denied trying to extract Doe's tooth with them.
Regarding Miranda's involvement in his offenses, Jones claimed that Miranda stood to Doe's side at the apartment door and that she did not bump or push Doe toward him. He stated that Miranda sat down on a couch in the living room and said nothing except that Doe "deserve[d] what he's getting" because of an "issue" Doe had with a minor in Fresno.
Miranda moved to admit the recording of Jones's entire police interview as exculpatory evidence. At a hearing on the motion, Miranda withdrew it because the parties stipulated to the admission of Jones's statements regarding her. The record reflects "this [was] a strategic decision by the defense." At trial, the court admitted all of Jones's interview except those portions relating to Montgomery. The court instructed the jury that it could consider Jones's statements only against him and Miranda, but not against Montgomery. The court also instructed with CALCRIM No. 362 regarding consciousness of guilt from false or misleading statements as follows:
"If defendant William Jones made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding defendant Emeshia Montgomery's guilt but you may consider that statement in deciding defendant Michelle Monique Miranda's guilt. [¶] If you conclude that defendant William Jones made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
During closing argument, Miranda's attorney relied on Jones's statements in asserting that Miranda was not involved in Jones's crimes.
B. Analysis
Miranda asserts that the admission of Jones's interview statements pertaining to her violated her constitutional rights to confrontation and due process. She also claims that defense counsel's decision to fully waive her confrontation right was inexcusable, not supported by any legitimate tactical purpose and plainly ineffective because it opened the door to argument and instructions that encouraged the jury to convict her based upon the testimonial out-of-court statements by her codefendant. The People argue (1) Miranda invited any error by stipulating to the admission of Jones's statements, (2) there was a reasonable tactical basis for defense counsel's action, and (3) if error occurred, it was harmless.
" 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.' " (People v. Bailey (2012) 54 Cal.4th 740, 753 [ostensible failure to request instruction on lesser included offense].) For the invited error doctrine to apply, "the record must show only that counsel made a conscious, deliberate tactical choice. . . . If . . . the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel." (People v. Cooper (1991) 53 Cal.3d 771, 831 (Cooper); People v. Harrison (2005) 35 Cal.4th 208, 237 [defense invited error in admitting hearsay evidence].)
Assuming, without deciding, that admission of Jones's statements regarding Miranda constituted error, the assumed error was invited. Defense counsel made a conscious and deliberate tactical choice to seek admission of Jones's statements regarding Miranda as exculpatory and later stipulated to their admission. Accordingly, Miranda's remedy is limited to a claim of ineffective assistance of counsel.
To support an ineffective assistance of counsel claim, a defendant "bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' " (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
Here, defense counsel explained her tactical decision to seek admission of Jones's interview statements as exculpatory, arguing that Jones "admit[ted] to being the sole perpetrator of the crimes," and claimed that Miranda had "nothing to do with his actions against the alleged victim" and "had no idea what he was doing" to the victim. Miranda has not demonstrated this was an unreasonable tactic because Jones's statements furthered her defense that Doe's statements regarding her involvement were not credible. The "risks and disadvantages of defense counsel's strategy do not establish that counsel was incompetent for adopting it. Rather, the risks and disadvantages must be considered in light of the available alternatives." (People v. Hayes (1990) 52 Cal.3d 577, 624.) Defense counsel presumably recognized that not admitting Jones's interview statements would have been detrimental to Miranda's defense because it would have left the jury with only Doe's version of the incident. Based on Jones's statements defense counsel was able to argue that Miranda was not involved in Jones's crimes. Miranda has failed to demonstrate ineffective assistance of counsel.
IV. ALLEGED INSTRUCTIONAL ERRORS
A. General Legal Principles
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood the jury understood the instruction in a manner that violated the defendant's rights" (People v. Andrade (2000) 85 Cal.App.4th 579, 585), "in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) The absence of an essential element in one instruction may be supplied by another or cured in the light of the instructions as a whole; we must look to the entire charge, rather than merely one part, to determine whether error occurred. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Accordingly, to prevail on a claim that the jury instructions were misleading, the defendant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) We interpret the given instructions " 'so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Additionally, we assume jurors are intelligent persons capable of understanding and correlating all jury instructions given. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
Generally, a defendant who believes that an instruction is erroneous or requires clarification must request correction or clarification of the instruction to avoid waiving the issue on appeal. (People v. Coddington (2000) 23 Cal.4th 529, 584, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Nonetheless, we will reach the issue if the defendant's substantial rights were affected by the error. (§ 1259; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34.) Substantial rights are equated with a miscarriage of justice, which results if it is reasonably probable the defendant would have obtained a more favorable result had the jury been properly instructed. (Cal. Const., art. VI, § 13; People v. Christopher (2006) 137 Cal.App.4th 418, 426-427; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
The People argue that Miranda forfeited each alleged instructional error by failing to object to the instructions in the trial court. Miranda responds that, assuming she forfeited the issues, we may nonetheless reach them because her substantial rights were affected by the alleged errors (§ 1259), or she received ineffective assistance of counsel. We consider all of Miranda's arguments on their merits because "[a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Additionally, to resolve she claim that trial counsel rendered ineffective assistance by failing to object or request modification of the instructions, we must address the merits of the issue.
B. Instructions on Substantive Crimes and Lesser Included Offenses
1. Additional Background
The People charged Jones and Miranda with kidnapping (count 1), false imprisonment (count 2), assault by means likely to produce great bodily injury (count 3), second degree robbery (count 4), torture (count 5), and aggravated mayhem (count 6). At the end of trial, the court informed the jury of the six charges alleged as to each defendant. (CALCRIM No. 203.) This instruction stated that jurors "must separately consider the evidence as it applies to each defendant" and "must decide each charge for each defendant separately." The court instructed on the elements of each substantive offense, with Jones named as the individual charged with each offense. The court also instructed on lesser included offenses for the six substantive offenses, with Jones named as the charged individual.
The court also informed the jury that if "you find that a defendant is not guilty of a greater charged crime, you may find a defendant guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct." (CALRCRIM No. 3517.) This instruction listed the lesser included offenses for the six substantive crimes and told the jury:
"It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime.
"For any count in which a greater and lesser crime is charged, you will receive verdict forms of guilty and not guilty for the greater crime and also verdict forms of guilty and not guilty for the lesser crime. Follow these directions before you give me any completed and signed, final verdict form. Return any unused verdict forms to me, unsigned.
"1. If all of you agree the People have proved that the defendant is guilty of the greater crime, complete and sign the verdict form for guilty of that crime. Do not complete or sign any other verdict form for that count.
[¶] . . . [¶]
"3. If all of you agree that the People have not proved that the defendant is guilty of the greater crime and you also agree that the People have proved that a defendant is guilty of the lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for guilty of the lesser crime.
[¶] . . . [¶]
"Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise." (Italics added.)
The jury received verdict forms for both Jones and Miranda for counts 1 through 6 and all lesser included offenses. The jury convicted Jones and Miranda as charged in counts 1 through 6, with no convictions on any of the lesser included offenses.
2. Analysis
Miranda argues that the trial court erred by failing to include her in the instructions for the substantive offenses. She notes that the instructions for the substantive offenses stated only that Jones was charged and no instruction directed jurors to look at the instruction for the substantive offenses to determine if she had the specific intent to aid and abet in the commission of each offense. She asserts that the misleading or confusing instructions violated her right to due process. The People claim that the instructions, viewed as a whole, negate any reasonable probability that the jury was misled to Miranda's prejudice by the trial court's failure to separately instruct the jury on the elements of the charged offenses.
It was undisputed that Miranda did not inflict any injuries on Doe. Accordingly, the People prosecuted Miranda on a theory that she aided and abetted Jones and not on an alternative theory that she was a direct perpetrator of the crimes. During closing argument, the prosecutor explained:
"Well, Ms. Miranda is also charged with many of those same crimes; but the People don't have to prove she actually did those things. We have to prove the principal did those things; and then Ms. Miranda is added as a Defendant on an aiding and abetting theory. That's why when you read those instructions or when they are being read to you, Mr. Jones is charged with this. If you find Mr. Jones guilty, then you need to decide if Ms. Miranda aided and abetted; and I'm going to be talking about that, obviously."
Miranda directed us to no authority stating that, under these circumstances, she was required to be named as a defendant for each of the six crimes. (People v. Camel (2017) 8 Cal.App.5th 989, 999 [failure to cite authority for proposition forfeits appellate review of issue].) Citing People v. Prettyman (1996) 14 Cal.4th 248, 268 (Prettyman), People v. Hickles (1997) 56 Cal.App.4th 1183, 1194-1195 (Hickles) and Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262, 1276 (Juan H.), Miranda contends that she was required to be named in the instructions for the substantive offense because the prosecution had to prove not simply that she "intended to assist or encourage unspecified 'nefarious conduct,' but that she had the specific intent to encourage or assist the specific offenses she was alleged to have aided and abetted." Miranda's reliance on these cases for this proposition is misplaced.
The defendant in Prettyman, supra, 14 Cal.4th 248 was charged with murder. The court instructed the jury that it could find her "guilty of murder if it determined either that she had aided and abetted the murder or that the murder was a 'natural and probable consequence' of any uncharged offense(s) that [she] had aided and abetted. The court did not, however, identify or describe any such uncharged target offense. At issue [was] whether, absent a request by counsel, the court should have so instructed the jury. (Id. at p. 254.) The court concluded that "when the prosecutor relies on the 'natural and probable consequences' doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. An instruction identifying target crimes will assist the jury in determining whether the crime charged was a natural and probable consequence of some other criminal act. And an instruction describing the target crimes will eliminate the risk that the jury will engage in uninformed speculation with regard to what types of conduct are criminal." (Ibid.) In this context, the Prettyman court concluded that "a conviction may not be based on the jury's generalized belief that the defendant intended to assist and/or encourage unspecified 'nefarious' conduct. (Id. at p. 268; Hickles, supra, 56 Cal.App.4th at pp. 1194-1195 [same]; Juan H., supra, 408 F.3d at p. 1276 [citing Prettyman and Hickles].)
Here, the prosecutor did not rely on the natural and probable consequences doctrine, rendering these cases inapposite. In any event, when viewed as a whole, the instructions informed the jury that Miranda was charged with the substantive crimes and that it was these substantive crimes that she allegedly aided and abetted. Before instructing on the substantive crimes, the court reminded jurors of the charged crimes as to each defendant, including that both Jones and Miranda were charged with counts 1 through 6, and instructed that they "must separately consider the evidence as it applies to each defendant" and "must decide each charge for each defendant separately." (CALCRIM No. 203.) The court instructed on the elements of each substantive offense and which crimes required specific intent. (CALCRIM No. 252.) The reasonable doubt instruction, together with the instructions for each crime informed jurors that they could not find any defendant guilty of any offense unless the prosecution proved each offense element beyond a reasonable doubt.
Additionally, the reasonable doubt instruction, together with the instructions on the substantive crimes and aiding and abetting, instructed the jury that it could find Miranda guilty of each offense as an aider and abettor only if it found beyond a reasonable doubt that Jones—the perpetrator—committed that offense. Taken as a whole, those instructions informed the jury that it could not convict Miranda of any offense unless the evidence showed beyond a reasonable doubt that (1) Jones had committed the particular offense, (2) Miranda specifically intended to aid and abet the commission of that offense, and (3) she aided and abetted its commission. (Perez, supra, 35 Cal.4th at p. 1225 ["[F]or a defendant to be found guilty under an aiding and abetting theory, someone other than the defendant must be proven to have . . . committed a crime; i.e., absent proof of a predicate offense, conviction on an aiding and abetting theory cannot be sustained."].)
Next, Miranda notes that, like the instructions on the substantive crimes, the instructions on the lesser included offenses only named Jones. She argues the trial court erred in failing to sua sponte instruct on lesser included offenses as to her. Thus, she claims that jurors were never informed they could find her guilty of a lesser offense even if it convicted Jones of the greater offense. The People assert that there are no reported cases holding that an aider and abettor is entitled to lesser included offense consideration separate from that afforded the perpetrator where, as here, the prosecution does not employ a natural and probable consequences theory of aider and abettor liability.
Miranda relies on People v. Campbell (2015) 233 Cal.App.4th 148 (Campbell) for the proposition that she was required to be named in the instructions on the lesser included offenses. In Campbell, Campbell and defendant went to the victim's home to purchase marijuana. (Id. at pp. 150-151.) After Campbell took the marijuana, he pulled a gun and began to back away toward to waiting vehicles. (Id. at p. 151.) Defendant, who was standing next to one of the vehicles, fired his gun, killing the victim. (Id. at pp. 151, 172 ["the evidence was clear . . . that [defendant] was the shooter."].) A jury convicted Campbell and defendant of first degree felony murder, the sole theory pursued by the prosecution, based on defendant's act of aiding and abetting Campbell's robbery. (Id. at pp. 151, 157, 163.)
On these facts, the appellate court agreed with defendant's contention that the trial court had a sua sponte duty to instruct on the lesser included offenses of second degree murder and voluntary manslaughter. (Campbell, supra, 233 Cal.App.4th at pp. 151, 165.) Specifically, the court noted that if defendant's "testimony about his knowledge and intent and his corroborating comments to Bowen are believed, a jury could have concluded that [defendant] did not know that Campbell was going to commit a robbery or that [defendant] did not intend to aid and abet a robbery and, therefore, that [defendant] was not guilty of first degree felony murder." (Id. at p. 164.)
Campbell, supra, 233 Cal.App.4th 148 is inapposite because Miranda did not directly commit any of the offenses for which she claims she was entitled to lesser included offense instructions. Our independent research has not disclosed any authority that, under these circumstances, she was entitled to be named in the lesser included offense instructions.
The Attorney General contends that "there does not appear to be any reported case in California holding that an aider and abettor is entitled to lesser included offense consideration separate from that afforded the direct perpetrator where, as here, the prosecution does not employ a natural and probable consequences theory of aider and abettor liability, but advances exclusively a theory of direct aiding and abetting." After our own independent research, we agree with this observation.
An "actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' (Citation.) The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense. . . .' " (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) Miranda's argument that the jury could have found her mental state to have been lesser than Jones's does not advance her contention that the trial court erred in failing to name her in the instructions for the lesser included offenses where undisputed evidence showed she was not a direct perpetrator.
We disagree that with Miranda's contention that the jury was likely confused about its ability to convict her of a lesser included offense. This argument ignores the balance of the jury instructions. (See ante, pt. IV.B.1.) Moreover, the jury was instructed specifically on the required proof for aiding and abetting: "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." Finally, Miranda's argument that she did not strike, beat, kick or burn Doe shows she was not a perpetrator of the substantive crimes she aided and abetted. This fact, however, does not support her contention that she did not share Jones's mental state regarding the substantive crimes of which she was convicted.
Accordingly, we reject Miranda's contentions that the trial court erred in failing to include her name in the instructions on the substantive crimes and their lesser included offenses.
C. Aiding and Abetting Instruction
The jury instructions on aider and abettor liability included an optional sentence that pertains only where the prosecution relies on the natural and probable consequences doctrine. (Judicial Council of Cal. Crim. Jury Instns. (2019), Bench Notes to CALCRIM No. 400, p. 155; People v. Rivas (2013) 214 Cal.App.4th 1410, 1432 (Rivas).) Immediately after giving this instruction, the court instructed with CALCRIM No. 401 on direct aider and abettor liability. The prosecution in this case did not rely on the natural and probable consequences doctrine, and the jury was not given an accompanying natural and probable consequences instruction pursuant to either CALCRIM Nos. 402 or 403. (See CALCRIM Nos. 402 [natural and probable consequences doctrine; target and non-target offenses charged]; 403 [natural and probable consequences doctrine; only non-target offenses charged].)
The instruction provided: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." (CALCRIM No. 400, italics added.)
Miranda contends that the trial court improperly included the language in the aiding and abetting instruction related to natural and probable consequences, a theory not relied on by the prosecution. She claims this language and the prosecutor's argument suggested that if she could be found guilty of one crime, she may be found guilty of the others. Miranda asserts the error was prejudicial because jurors likely relied upon the erroneous sentence to help with their confusion over the fact that her name was excluded from the jury instructions for the charged offenses and lesser included offenses, and to "make up the difference between the required mental state and the less culpable mens rea which [she] actually possessed." The People concede that the aiding and abetting instruction contained erroneous language related to the natural and probable consequences doctrine, but argue that the error was harmless. We agree with the People.
Giving the bracketed portion of CALCRIM No. 400 without also giving CALCRIM Nos. 402 and 403 is error. (Rivas, supra, 214 Cal.App.4th at p. 1433.) Here, as in Rivas, the trial court mistakenly gave the bracketed sentence without including CALCRIM Nos. 402 or 403. Thus, the jury was told that there are "some specific circumstances" in which a particular type of vicarious criminal liability arises but were not told what those "specific circumstances" are. Without additional instruction identifying the "specific circumstances" in which to rule, the bracketed sentence in CALCRIM No. 400 is superfluous and "meaningless." (Rivas, at p. 1433.) Thus, it is "highly unlikely that the jury [will have] relied on that rule. . . ." (Id. at p. 1432; People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247 [same].)
Miranda contends that the error was prejudicial because it likely confused and misled the jury as to the required mental state for the crimes. However, she cites no evidence to support these assertions, which we therefore reject as speculative. Rather, giving an irrelevant or inapplicable instruction is generally " ' "only a technical error which does not constitute ground for reversal." ' " (People v. Cross (2008) 45 Cal.4th 58, 67.) Moreover, the court instructed the jury, "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give you a particular instruction, that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." (CALCRIM No. 200.) We presume that the jury disregarded the instruction if it found that the evidence did not support its application. (People v. Frandsen (2011) 196 Cal.App.4th 266, 278.) Miranda has not rebutted this presumption or otherwise established it is reasonably probable the trial result would have been more favorable to her if the court had not given the erroneous instruction. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.)
D. Instruction on Jones's Statement
1. Additional Background
In his postarrest interview, Jones admitted several acts he had committed against Doe. He also made potentially exculpatory statements regarding Miranda's involvement in his actions. The court admitted Jones's interview statements, including those relating to Miranda, at trial. The trial court also instructed the jury with a modified version of CALCRIM No. 362 as follows:
Jones stated that Miranda: (1) stood to Doe's side and did not push Doe inside the apartment; (2) sat on the couch, did not yell or scream and said nothing other than "he deserves what he's getting" based on an incident in Fresno with a minor; (3) could not see inside the bathroom because the door was closed; and (4) had left before he threw a cigarette at Doe.
"If defendant William Jones made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding defendant Emeshia Montgomery's guilt but you may consider that statement in deciding defendant Michelle Monique Miranda's guilt.[]
"If you conclude that defendant William Jones made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." (Italics added.)
The trial court modified the pattern jury instruction by including the italicized language in place of bracketed language that provided: "You may not consider the statement in deciding any other defendant's guilt."
2. Analysis
Miranda argues that the trial court improperly instructed jurors that they could consider a statement by Jones as evidence of her consciousness of guilt. Assuming this was error, the People contend it should be deemed invited error not cognizable on appeal because Miranda specifically moved to permit jury consideration of Jones's statements in determining her role in the offenses.
The invited error doctrine bars appellate review of any error which trial counsel deliberately and consciously, as a matter of trial tactics, induced the trial court to make. (Cooper, supra, 53 Cal.3d at pp. 830-831.) The record does not support application of the invited error doctrine on this issue because the court's discussions with counsel regarding the jury instructions were conducted off the record. Because the record does not show that Miranda made a conscious, deliberate tactical choice in requesting or acquiescing to the modified instruction, we deny the People's request to ascribe the alleged error to Miranda. Accordingly, we conclude that the invited error doctrine does not bar Miranda's claim of error.
Nonetheless, we agree with the Attorney General that Miranda was required to object to the court's modified version of CALCRIM No. 362 because the instruction could have been modified to alleviate the concerns she now expresses. However, given Miranda's argument that the trial court erred in modifying the instruction and that the error affected her substantial rights, we consider whether there was error and if so, whether a miscarriage of justice resulted. (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304; People v. Hudson (2009) 175 Cal.App.4th 1025, 1028.)
The Attorney General does not argue that the modified instruction correctly states the law. Indeed, the trial court's modification of CALCRIM No. 362 allowed the jury to consider any false or misleading statement Jones made in deciding Miranda's guilt, something the bracketed sentence in the pattern instruction expressly forbids. (Ante, fn. 11.) We found no authority showing that the modified instruction correctly stated the law. Hence, we conclude that the modified instruction did not correctly state the law and consider whether the instructional error resulted in a miscarriage of justice.
Instructional error cannot be the basis for reversing a conviction unless an examination of the entire cause indicates the error resulted in a miscarriage of justice. (People v. Larsen (2012) 205 Cal.App.4th 810, 829.) To determine whether the error was prejudicial under state law, we examine the entire record to assess whether it is reasonably probable a result more favorable to defendant would have been reached had the jury been correctly instructed. (People v. Nunez and Satele (2013) 57 Cal.4th 1, 39.)
The erroneous modification of CALCRIM No. 362 is not prejudicial. First, Miranda failed to identify a false or misleading statement by Jones that allegedly prejudiced her. During opening statements, the prosecutor referenced Jones's statements that Miranda went to Montgomery's apartment with Doe, watched him torture Doe and stated that Doe deserved what he got—arguing those statements were true. Nor did the prosecutor reference any false or misleading statements by Jones's during closing argument. Although the prosecutor argued that Jones minimized Doe's injuries and lied about the identity of the other man in the apartment, these arguments did not relate to Miranda's role in the crimes.
Additionally, CALCRIM No. 362 uses permissive, rather than mandatory language, instructing that even if the jury finds a statement to have been false, it is "up to" the jury to decide on its meaning and importance. Moreover, the instruction explicitly states that Jones's false or misleading statements could not, alone, prove guilt. (CALCRIM No. 362.) The trial court also instructed the jury that it could not convict Miranda based on Jones's statements alone, that to consider those statements it had to find them supported by independent evidence tending to connect her to the crimes, and that statements by Jones tending to incriminate Miranda "should be viewed with caution" and given "the weight you think it deserves after examining it with care and caution and in the light of all the other evidence." (CALCRIM No. 335.) Accordingly, there is no "serious doubt as to whether the error has affected the result" (Watson, supra, 46 Cal.2d at p. 837), and we conclude that the instructional error did not result in a miscarriage of justice.
V. CUMULATIVE ERROR
Miranda contends that the cumulative impact of the above errors warrants reversal of the judgment. A "series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) However, "[l]engthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (Ibid.) As we have " 'either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial,' " we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1188, 1235-1236.)
VI. ABILITY TO PAY FINES AND FEE
In Dueñas, supra, 30 Cal.App.5th 1157, our colleagues in Division 7 of the Second District held that imposing assessments pursuant to Penal Code section 1465.8 and Government Code section 70373, as well as restitution fines under Penal Code section 1202.4 without first conducting a hearing to determine a defendant's ability to pay, violates due process. (Id. at p. 1164.) Two recently published opinions have disagreed with the conclusion reached in Dueñas. (See People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles).) We need not weigh in on this split in authority because Miranda has not established prejudice warranting remand. (People v. Jones (2019) 36 Cal.App.5th 1028, 1034 (Jones) [Dueñas error is subject to a harmless error analysis].)
Here, the trial court imposed a $70 court operations assessment fee (§ 1465.8), a $5,000 restitution fund fine (§ 1202.4, subd. (b), suspended a matching parole revocation fine (§ 1202.45), and ordered $2,104.78 in victim restitution to be paid jointly and severally with the codefendants. The court was prepared to order that Miranda pay $500 for appointed counsel fees and $505 for presentencing investigation, but reduced the total to $250 upon defense counsel's request that the fees be stricken due to inability to pay. The trial court also noted that probation requested that the restitution fund fine and parole revocation fine be set at $10,000, but the court reduced these fines to $5,000.
Miranda argues that the trial court violated her due process rights by imposing the fee and fines without first making an ability to pay determination. To the extent defense counsel did not specifically object to the imposition of the $5,000 restitution fine and ask for an ability to pay finding, Miranda claims that any further objection would have been futile. She requests that we remand the matter for consideration of whether she has the ability to pay the fines and fees imposed.
The mandatory minimum fine under section 1202.4, subdivision (b)(1) for a felony conviction is $300, which the Legislature intended to be punitive in nature and is imposed on all convicted defendants. (Id., subd. (a)(2).) The fine is mandatory unless the court finds compelling and extraordinary reasons which it must state on the record. (Id., subd. (c).) A defendant's inability to pay cannot be considered a compelling and extraordinary reason to not impose the fine. (Ibid.) A defendant's ability to pay may be considered only for the fine imposed in excess of the minimum fine. (Id., subd. (b)(1).) The court must consider any relevant factors, including ability to pay, for the amount of restitution fine in excess of the mandatory minimum. (Id., subd. (d).) While a defendant shall bear the burden of demonstrating his or her ability to pay, a separate hearing for the fine shall not be required. (Ibid.) Because defendants are in the best position to adjudge whether they have the ability to pay, it is incumbent upon them to object to the fine and to show why it should not be imposed. (People v. Avila (2009) 46 Cal.4th 680, 729; People v. McMahan (1992) 3 Cal.App.4th 740, 749 ["[T]he most knowledgeable person regarding the defendant's ability to pay would be the defendant himself."].)
The trial court reduced the fees for appointed counsel and presentencing investigation based on defense counsel's claim that Miranda lacked the ability to pay these fees. Thereafter, the trial court sua sponte reduced the restitution fund fine and parole revocation fine, slicing these fines by one-half. Accordingly, the record suggests that the trial court considered Miranda's ability to pay the restitution fines and does not support Miranda's claim that it would have been futile to object to the restitution fines. Significantly, defense counsel did not challenge the trial court's implied ability to pay finding. Nor did defense counsel object to the amount of the reduction or assert that Miranda lacked the ability to pay even the reduced fines. (§ 1202.4, subd. (d).) A separate ability to pay hearing was not required. (Ibid.)
Although Miranda did not forfeit her challenge to the imposition of the $70 court operations assessment fee, any error in denying her a hearing on her ability to pay this fee was harmless beyond a reasonable doubt. Miranda received indeterminate life terms for torture and aggravated mayhem, one of which it stayed, and an aggregate determinate term of five years and eight months on the other convictions. A court may consider the ability to earn prison wages in determining the ability to pay. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) "Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [the inmate's] trust account) are deducted to pay any outstanding restitution fine." (Jones, supra, 36 Cal.App.5th at p. 1035.) Nothing in the record suggests that Miranda suffers from any physical or mental limitations, or that she might be ineligible for prison work assignments. Accordingly, we can infer that Miranda will have the opportunity to earn prison wages and can start paying this financial obligation. (Aviles, supra, 39 Cal.App.5th at p. 1076.) With a minimum of $6 a month going to pay the restitution fine and the other half of monthly prison wages available to pay the remaining $70, Miranda would theoretically be able to pay the $70 fee in one year. (People v. Johnson (2019) 35 Cal.App.5th 134, 139 ["The idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable."].) Thus, even assuming the fee was wrongfully imposed under Dueñas, supra, 30 Cal.App.5th 1157, the error was harmless beyond a reasonable doubt given her sentence. (Jones, at p. 1035.)
The California Supreme Court is currently considering whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments, and if so, which party bears the burden of proof regarding inability to pay. (See People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
DISPOSITION
The judgment of conviction for count 2, false imprisonment, is reversed. Upon issuance of the remittitur, a judgment of dismissal is to be entered on count two and the sentence on this count is to be vacated. Thereafter, the trial court is directed to prepare an amended abstract of judgment and to send a certified copy of the same to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.