The opinion of the court was delivered by: Pollak, Acting P.J.
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Defendant Robert Anthony Thomas appeals his conviction for murder, attempted murder, and two counts of robbery stemming from his participation in a scheme to steal marijuana from sellers of the drug who were shot in the course of the transaction.
Daniel Reyes and Tomas Gonzalez agreed to sell defendant and two other men, Richard Miller and Michael Mackey, approximately 12 ounces of marijuana for $3,000. Defendant, who knew Reyes and Gonzalez from previous transactions, arranged this transaction. Defendant did not plan to be present, but knew that Mackey was armed and planned to use the gun to obtain the drug without paying for it. When Miller, Mackey, Reyes, and Gonzalez were in Reyes's car, Mackey pulled out the gun but held it in such a way that Reyes and Gonzalez could not see it. Miller then grabbed the bag containing the marijuana and ran while Mackey shot the other two men, killing Reyes and partially paralyzing Gonzalez. Defendant appeals his jury conviction, challenging many of the trial court's discretionary rulings, certain jury instructions, and the sufficiency of the evidence to support the robbery convictions. We find no error and shall affirm.
Gonzalez testified that he knew Reyes and was present when Reyes agreed to sell defendant 12 ounces of marijuana for $3,000. On October 17, 2006, Gonzalez spoke with defendant on the phone and accompanied Reyes to the location in Vallejo specified by defendant where they met defendant and two other people. Detective Matthew Mustard interviewed Gonzalez on October 27 and when Gonzalez was unable to recall matters during his trial testimony, a recording of the interview was played for the jury. Gonzalez told Mustard that he and Reyes picked up defendant, Mackey and Miller for the drug sale. Reyes was driving and Gonzalez sat in the passenger seat with defendant behind Reyes, Miller in the middle, and Mackey behind Gonzalez. They drove to someone's house where defendant got out of the car. When Gonzalez and Reyes asked for the money, Mackey handed Gonzalez $10 in one dollar bills. Gonzalez threw the money back at him and said, "You guys are kidding me." Mackey phoned defendant purportedly to ask for the rest of the money, and then shot Reyes and Gonzalez.
Reyes' girlfriend, Angela Gutierrez, testified that a day or two before the 17th, she heard Reyes discussing the sale of the marijuana with Gonzalez on the phone. She heard them say that they would travel to Vallejo and sell the drugs for approximately $4,000. Reyes told Gonzalez that he would give him a couple hundred dollars to accompany him, and Gonzalez agreed.
Lakeisha Buffin testified that on October 17, she was dating Mackey and that defendant was dating Jessica Clough. Buffin and Mackey were staying at the Vallejo Inn. Defendant and Clough came to the motel and brought Miller with them. Buffin did not hear the others discuss a robbery or obtaining marijuana. At some point the three men left, with defendant driving. When the men later returned, Buffin did not recall if they had marijuana or if any of the men said anything. When asked if she had told the police detective who interviewed her that Miller and Thomas were yelling, "Mike shot them," Buffin testified that she did not remember. A recording of the detective's interview with Buffin was played for the jury and is discussed in greater detail infra.
Clough testified that on October 17, while she and defendant were with Buffin and Mackey at the Vallejo Inn, she heard defendant, Mackey, and Miller discuss committing a robbery. Two days before the 17th, Clough overheard defendant telling someone on the telephone that he planned to commit a robbery. In the motel room on the day of the robbery, defendant told the others that he would drop them off at the Wind Rush apartments. Miller said that he was "going to take a car." Mackey said that he was going to take the marijuana. Clough saw Miller give Mackey a gun. The men left and after approximately two hours returned with the marijuana. Miller said, "Mike shot them." The prosecutor asked Clough if Miller "talk[ed] about who was in the car with the two people they took [the marijuana] from?" She responded, "I don't remember exactly where they were. It was Mike and Richard in the car, and Richard got out of the car, and he grabbed the bag and ran, and Mike was in the car, then he heard gunshots."
Clough testified that after the men returned with the marijuana, she and Buffin went to a smoke shop where Buffin purchased small baggies, then returned to the motel. Miller took the duffel bag containing the marijuana and gun and defendant and Clough drove Miller to Richmond, where Miller took the duffel bag. Defendant sold his share of the marijuana.
Detective Meredith interviewed defendant and a tape of the interview was played for the jury. Defendant told Meredith that he asked to leave the group before the drug deal occurred, "because I'm not tryin' to get caught up with nothin' like that. I'm on parole, so I don't supposed to be around nothin' like that." Defendant told Meredith that he received a call from Gonzalez, who had the marijuana and was looking for a buyer. Defendant contacted Miller and Mackey and told them, " 'Man, my partner comin' out here with 12 ounces . . . If y'all want, y'all . . . can rob 'em, but I'm not gonna be there. . . .' That's the exact words I said. I said, 'I'm not gonna be there if y'all rob 'em,' and I told Mike the same thing, 'If y'all want, y'all can rob 'em, but I'm not gonna be there. I can you know, let y'all meet up or something.' " Defendant continued, "When they came out here, I gave 'em directions to the Wind Rush apartments. When they came to the Wind Rush apartments, they was about to rob 'em right there." The location of the transaction changed because several police cars were near the apartment complex where the men met.
Defendant described sitting in front of the apartment complex with Miller and Mackey and discussing how they planned to rob the victims. Defendant told Meredith, "They was talkin' about like, man, we're gonna . . . all three of us gonna walk up to the car and then once we all walk up to the car, . . . Richard and Mike was gonna get in the back seat while I'm standing on the outside of the car and then . . . Mike said, 'Once I pull out the pistol, you just run.' And . . . once Mike pulled out the pistol and I just run like I didn't . . . know they was gonna get robbed or somethin' . . . ." Defendant added that during this discussion he said, " 'Man, if you do it, if you do it up in here man, when you pull out the pistol, I'm just gonna break. I'm gonna run.' "
Defendant told Meredith that at an earlier time defendant had been sitting with Miller and Mackey when Mackey said, " 'Man, I'm gonna shoot 'em. I'm gonna shoot 'em.' " Defendant said, " 'Man, you don't have to shoot nobody but if you do shoot somebody, then you got to look at it a different way if you do shoot 'em. . . . if you do shoot 'em man, you gonna have to you know what I'm saying, kill 'em or something because if you don't, then it's gonna be over for you.' " Mackey promised that he would not shoot anyone but that " 'we're just gonna rob 'em,' " but also said, " 'No, I'm gonna shoot 'em man, if they try to make a wrong move or somethin' or don't want to give up nothin' I'm just gonna shoot.' "
Defendant told Meredith that after defendant picked them up, both Miller and Mackey narrated the events of the robbery. They told him that when all four men were in the car, Reyes and Gonzalez directed Miller to get the duffel bag with the marijuana from the back of the car, which Miller did. Defendant said that Mackey offered $30 or $35 to Gonzales, which Gonzalez rejected. Mackey was holding the gun so that Miller could see it but the victims could not. Mackey grabbed the rejected money and Miller opened the car door and grabbed the marijuana. Defendant told Meredith that Mackey "tried to shoot my partner, Tomas, without even saying, 'Give me everything' or nothin' like that, he just start to shoot him." Miller told defendant that once Mackey took the safety off the gun, Miller "grabbed the bag and ran, the only thing he heard was like three . . . shots."
After leaving Mackey and Miller, defendant met Clough, then received a call from Miller who told him, " 'I need you to come and pick me and Mike up, man. Man, Mike they shot these dudes. . . . Mike robbed 'em.' " He and Clough met Mackey and Miller at the motel. Mackey and Miller were "breathing all hard, takin' off their shirts and stuff, [and] had a . . . duffel bag . . . and threw it on the bed and . . . [Mackey] took a . . . gun out of a pocket and . . . was wiping it down." Defendant told Meredith that after the robbery he told Mackey, "You didn't' have to shoot 'em at all man." Mackey replied, "Man, I know."
Miller was called to testify but, outside the presence of the jury, invoked his Fifth Amendment right not to do so. At defendant's request, Miller's statement to the police was played to the jury. Miller initially denied having been present when the murder and robbery occurred. He later admitted that he was in the car with Mackey. Miller stated that Mackey "told me to grab the weed in the back seat. I grabbed it, put it on the side of me and [Mackey] and then [Mackey] had the pistol in his hand and . . . he had $30 in his hand. He gave it to 'em and they counted it and then they said, 'That's not all the money,' and he was right there like this tryin' to shoot 'em but the gun is on safety. So when I heard that cock and he took it off safety I'm like, 'All right, now I know what he's tryin' to do,' so I asked dude for a cigarette and he was like, 'All right, here.' He gave me a cigarette, I tried to light it. He said, 'No, don't light it in the car, this is my mom's car, you gotta step outside.' So . . . as soon as I start to step outside, I lit the cigarette and then I mean I just grabbed the bag and ran. . . . and the next thing you know, I hear 'pop, pop, pop.' Then [Mackey] come out and run and . . . we just runnin' through the park and then he tossed the gun . . . ." Miller told Mackey, "that wasn't called for. You did not have to shoot. I hope none of them are dead." Miller told the detective that "the whole plan was that he wasn't--I don't know, he wanted to shoot the dudes. I don't know, they was two white boys. . . . I mean the plan was just for us to get the weed and then run, but then something was up on his head. . . . Something happened on Mike's head. . . . I don't know why he shot, 'cause I wasn't in the car when he shot. I grabbed the weed and ran and . . . then I hear a 'pop, pop, pop, pop,' and I mean then he got out the car and ran." Miller told the detective that defendant had described Reyes and Gonzalez as "suckers," and said that "if we just take the weed and go, they ain't gonna do nothin'." He also told the detective that he and Mackey had the gun because defendant told them they "needed a gun to do it."
Defendant, Mackey, and Miller were jointly charged by information with murder (Pen. Code, § 187(a)*fn1 ), two counts of second degree robbery (§ 211), and one count of attempted murder. Each count alleged enhancements for personal use of a firearm under sections 12022.5, subdivision (a) and 12022.53, subdivisions (b), (c), and (d).
On the murder count, the jury was instructed that defendant was charged "under a theory of felony murder." Defendant's attorney recognized in his closing argument that "there isn't a lot of different facts in controversy, but what it really comes down to is, what was in Michael Mackey's mind when he decided to shoot Daniel Reyes and Tomas Gonzalez? That is the main issue in this case. . . . Did he shoot and kill Mr. Reyes, and did he shoot Mr. Gonzalez, as part of his intent to stop them from reclaiming the marijuana that Richard Miller stole?" He argued that Mackey shot Reyes and Gonzalez for a reason independent of the robbery and that Miller took the marijuana and got out of the car before Mackey shot the victims and therefore that "[t]he property was taken without force." The jury was instructed on robbery and also on the lesser offense of theft by larceny.
The jury found defendant guilty on all four counts.*fn2 The court sentenced him to 25 years to life for the murder plus a consecutive term of nine years for the attempted murder. Imposition of sentence for the robbery counts was stayed pursuant to section 654.
Defendant filed a motion to sever his trial from the trial of Mackey. The prosecutor opposed this motion and requested a joint trial with separate juries for the three defendants. The court denied the prosecutor's motion and granted defendant's motion to sever his trial from that of Mackey, but reserved ruling on the severance of the trial of defendant and Miller. At a subsequent hearing on the prosecutor's motion to sever the trials of defendant and Miller, defendant argued against severance on the ground of judicial economy and offered to waive his rights under People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123.*fn3 The court severed the trials of defendant and Miller, reasoning that "a joint trial in this matter [is] not only [i]nadvisable, but I think it's fraught with the potential for reversible error. None of us know what is going to happen as the trial goes on, and while we can all sit here today and try to think of all the alternatives or . . . the defendant may be willing to waive or take a certain tactic, I think foreclosing a defendant from taking advantage of all tactics available during a trial is something that no reasonable, experienced defense attorney would want to do . . . . So as we sit here today, it may seem like a good idea to waive whatever Aranda problems you may envision at this point, but I'm unwilling to get in a position where not only is the court bound, but I think you are going to be bound by perhaps things that we don't know what's coming up in the future."
Defendant then moved to compel the prosecutor to grant Miller immunity for his testimony or alternately to admit into evidence Miller's statement to police. The court denied the motion to compel the prosecutor to immunize Miller but his statement to the police was played for the jury. On appeal, defendant argues that Miller's testimony was necessary to bolster his defense that he was guilty only of theft and not of murder because Mackey acted independently and without the knowledge of defendant or Miller. Therefore, he argues, the trial court erred by ordering separate trials because, he posits, Miller would have testified had they been tried jointly.
"The California Penal Code provides for joint trials of defendants jointly charged with criminal offenses. 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials. . . .' (§ 1098.) The Legislature has in this manner expressed a preference for joint trials. [Citations.] The statute nevertheless permits the trial court to order separate trials, and the decision to do so is one 'largely within the discretion of the trial court.' [Citations.] Whether denial of a motion to sever constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion to sever." (People v. Boyde (1988) 46 Cal.3d 212, 231-232.) Factors that the trial court may consider in deciding whether to order separate trials include: "(1) Where there is an extra-judicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter; (2) where there may be prejudicial association with co-defendants; (3) where there may be likely confusion from evidence on multiple counts; (4) where there may be conflicting defenses; and (5) where there is a possibility that in a separate trial the co-defendant may give exonerating testimony." (Id. at p. 232.)
Defendant argues that the court abused its discretion in ordering separate trials for Miller and him. He argues that none of the Boyde factors applied at the time of the hearing on the severance motion. Particularly as to the fifth factor, defendant argues that "there was no realistic likelihood that Miller would testify before his own trial and especially not when Miller was not a party with the right to have his own attorney examining him to protect and clarify his testimony and had no beneficial stake in [defendant's] trial." Defendant relies on Boyde, supra, 46 Cal.3d 212, in which the Supreme Court found no abuse of discretion in the denial of a severance motion. The decision does not imply, however, that severance must always be denied. Defendant points to no case, and we are aware of none, in which a criminal defendant was found to have been unfairly prejudiced by a separate trial.
The trial court's concern with the potential for prejudice to defendant or Miller from a joint trial despite counsel's offer to prospectively waive Aranda/Bruton issues, or a later claim of ineffective assistance of counsel, was well grounded. Besides corroborating defendant's assertion that Mackey shot the victims after Miller was out of the car, Miller also told the police that before the drug deal took place he knew Mackey was armed and intended to use the gun. The statement could reasonably be viewed as supporting the prosecutor's theory that Mackey shot the victims to prevent them from regaining the marijuana.*fn4 In any event, defendant has not demonstrated that there was a reasonable probability of a more favorable result if he had been tried jointly with Miller. (People v. Watson (1956) 46 Cal.2d 818, 836.) At defendant's request, Miller's statement to the police was played to the jury in its entirety. Defendant argues that Miller's testimony at trial would have allowed him to clarify certain statements that Miller made, but it is entirely speculative what clarification he would have provided, much less what the significance of the clarification would have been. Moreover, there is no reason to believe that Miller would not have invoked his right against self-incrimination at his own trial as he did when called as a witness at this trial. The trial court did not abuse its discretion in ordering separate trials for defendant and Miller.
Defendant argues that the trial court erred in admitting several statements that he contends were hearsay and thereby violated his right to confront witnesses against him. The testimony to which he refers is Clough's statement to police, which included her recollection of what Miller and Mackey said on returning to the motel, including statements purportedly uttered by Mackey during the robbery as related to Clough by Miller; Buffin's statement to police; Gutierrez's testimony that Reyes told Gonzalez he would be paid to accompany Reyes; and Gonzalez's statement to police that Mackey called defendant immediately before the shooting.
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "A trial court's decision to admit or exclude evidence is a matter committed to its discretion ' "and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Geier (2007) 41 Cal.4th 555, 585.) Moreover, this court must affirm if the trial court's decision was correct, even if its reasons were erroneous. " 'If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion. Two theories seem to be involved here: First, that the appellate court reviews the action of the lower court and not the reasons for its action; second, that there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct." (People v. Gibson (1987) 195 Cal.App.3d 841, 853, italics omitted.)
Clough testified to the events in the motel room immediately following the robbery. She said that Miller had talked about "how they got the marijuana." She said, "It was [Mackey] and [Miller] in the car, and [Miller] got out of the car and he grabbed the bag and ran, and [Mackey] was in the car, then he heard gunshots." The prosecutor asked, "did they also say that [Mackey] had said, 'Give me your weed,' or whatever?" Clough said she did not remember. The prosecutor asked "When they were in there [presumably the motel room] talking, did [Mackey] talk about saying he demanded the weed or whatever, and then [Miller] got out of the car?" Defendant objected and the court overruled the objection. Clough said she did not remember.
The prosecutor then sought to introduce a recording and transcript of Clough's interview with police the morning after the robbery. The prosecutor had Clough review portions of the interview, then asked, "After reading this, you told the police that [Miller] had said that [Mackey] had already pulled the gun on them and said, 'Give me your weed.' That is what you read here, correct?" Clough answered, "Yeah." The trial court prompted the prosecutor to read more of the transcript for clarity. The prosecutor read, "So first, the detective asks you, 'So in this discussion, you hear [Miller] say what?' And he says that they had a truck, right?" Clough answered affirmatively. The prosecutor continued, "And then after that you then say, 'And he said that they were in the truck, and that's when he took the weed, and he opened the door and ran out, but [Mackey] had already pulled the gun on them, and said, 'Give me your weed or whatever.' Is that what you said?" Clough answered "Yes," and defendant objected to the statement "as hearsay and confrontation." The trial court overruled the objection.
Later, the prosecutor sought to play the tape of Clough's interview for the jury. Defendant again objected, this time on the grounds that it would be cumulative and unduly prejudicial. He also argued that the statement regarding Mackey should not have been admitted. The trial court stated, "all of these statements by not only your client, but the other two defendants are clearly, at least as to what was going on in the car and leading up to the shooting itself, are statements by co-conspirators in the commission of an underlying felony robbery, and they are admissible as to each."
Defendant argues that Clough's testimony and statements to the police were hearsay and therefore inadmissible and also that admitting her statements violated his rights under the confrontation clause to cross-examine witnesses against him. Miller's statements in the motel room were hearsay; that is, the prosecutor sought to establish the truth of Miller's description of the operative facts of the crime and was using Miller's out-of-court statement to Clough to do so.*fn5 The trial court admitted Miller's statements as those of a coconspirator. "Hearsay evidence is of course generally inadmissible. [Citation.] Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents 'independent evidence to establish prima facie the existence of . . . [a] conspiracy.' [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: '(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in ...