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The People v. Donald Hugh Sherman et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


November 9, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DONALD HUGH SHERMAN ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. Nos. 62-064573A and 62-064573D)

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Sherman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants Donald Hugh Sherman and Peter Daniel Schoemig killed Guy Farmer. Separate juries convicted them of first degree murder. (Pen. Code, § 187, subd. (a).)*fn1

Schoemig's jury acquitted him of torture (§ 206) and found not true the special circumstances of murder by torture (§ 190.2, subd. (a)(18)) and murder by poison (§ 190.2, subd. (a)(19)).

Sherman's jury, in addition to convicting him of first degree murder, convicted him of torture (§ 206), a drug offense (Health & Saf. Code, § 11378), and nine counts of possession of a firearm by a felon. (Former § 12021, subd. (a)(1).) His jury found true the special circumstances of murder by torture (§ 190.2, subd. (a)(18)) and murder by poison (§ 190.2, subd. (a)(19)), an allegation that he was personally armed (§ 12022, subd. (c)), and allegations of prior drug convictions. (§ 1203.07, subd. (a)(11); Health & Saf. Code, § 11370.2, subd. (a).)

The trial court sentenced Schoemig to state prison for a term of 25 years to life.

The court sentenced Sherman to state prison for "25 to life without the possibility of parole" for the special circumstances first degree murder conviction, a consecutive indeterminate term of life for the torture conviction, and an additional 17 years eight months for the remaining offenses and enhancements.

In his appeal, Schoemig contends:

(1) insufficient evidence supports his first degree murder conviction;

(2) the court erred by denying his request for a pinpoint instruction that duress could negate the element of premeditation;

(3) the court abused its discretion by excluding hearsay evidence he claims qualified as a statement against penal interest;

(4) insufficient evidence supported the trial court instructing his jury on the prosecution's theory of murder as a natural and probable consequence of aiding and abetting felony false imprisonment by violence or menace;

(5) the court erred by instructing his jury on duress as a defense against the natural and probable consequences theory of murder by using a confusing and contradictory instruction; and

(6) the court erred by not expressly linking its instructions on the lesser included offenses of second degree murder and involuntary manslaughter to the natural and probable consequences theory of murder.

In his appeal, Sherman contends:

(1) the trial court improperly instructed his jury on consciousness of guilt based on the destruction of evidence by third parties (CALCRIM No. 371);

(2) the court wrongly denied his request for a pinpoint instruction on third party culpability; and

(3) by instructing the jury on consciousness of guilt based on false or misleading statements (CALCRIM No. 362) and a third person's acts to suppress evidence (CALCRIM No. 371), and by denying his request for a pinpoint instruction on third party culpability, the court used impermissible pinpoint instructions and denied him the benefit of impartial instructions.

None of the defendants' contentions has merit. However, we must modify Sherman's sentence on the special circumstances first degree murder count to reflect the term prescribed by law, which is life without possibility of parole, not "25 to life without the possibility of parole." With that lone modification, we affirm the judgments.

FACTS

On Labor Day weekend 2006, a group of friends and acquaintances, associated through their usage and dealing of drugs, converged on defendant Sherman's residence in Penryn. The residence included a house and a detached garage that contained a separate room that served as an office. Sherman was a drug dealer, and the victim, Guy Farmer, was a drug user and a participant in Sherman's drug business. He was also Sherman's cousin. In the group was defendant Schoemig, who had met Sherman through a mutual drug connection.

During the weekend, Sherman became angry when he discovered that chemicals used for making illegal drugs, purportedly worth hundreds of thousands of dollars, were missing. He suspected Farmer and Schoemig and accused them, but both denied taking them. Several of the group searched unsuccessfully for the chemicals.

Sherman threatened Farmer that, if he did not tell where the chemicals were, Sherman would call someone to interrogate him. Acting on the threat, Sherman called Lawrence Macken of Stockton in the early morning hours of Tuesday, September 5. One day later, at approximately 12:30 a.m. on Wednesday, September 6, three men arrived at Sherman's residence: a tall man named Lawrence, a short man, and a heavy-set man (the interrogators). Sherman told some of those remaining at the residence that he had called these men to interrogate Farmer.

Sherman spoke with the three men and pointed out Farmer, who was intoxicated, and Schoemig as the ones to be interrogated, although it does not appear that Schoemig ever became the subject of interrogation. The men in the group went into the garage, and the women were told stay in the house with the children.

The interrogators questioned Farmer. He denied knowing where the chemicals were, so they hit him in the face and head with their fists. Farmer was afraid and urinated on himself. When Farmer swore that he did not know where the chemicals were, the men kicked and stomped on him, including kicking him in the chin.

The men hit Farmer in the knees and chest with hammers and threatened to cut off his fingers. Sherman and Schoemig demanded that Farmer reveal the whereabouts of the chemicals, while Farmer screamed and vomited.

Farmer threatened to call the police and tell what the men had done to him. He tried to use a phone, but the interrogators stopped him. Sherman was concerned that Farmer had called the police. The interrogators gagged Farmer, and tied him up with ropes provided by Schoemig. As Farmer lay on the ground in the fetal position, the interrogators tied his hands in front of his crotch.

Sherman gave the interrogators some crystal methamphetamine to give to Farmer to wake him up. Schoemig administered the injections, three in all.

Sherman lit a blow torch and gave it to the interrogators. They burned the ropes around Farmer's wrists and, in the process, burned Farmer's crotch. They also burned Farmer's steel-toed boots. Farmer yelled for Sherman, but Sherman continued to demand to be told where the chemicals were. Farmer's feet caught fire, and he vomited profusely. Finally, Farmer said that he took the chemicals.

Sherman and Schoemig went into the office and prepared another injection of methamphetamine. Back in the garage, Farmer was unconscious, so the men covered Farmer with a tarp and returned to the office to use methamphetamine.

Later Wednesday morning, Sherman spoke to one of the women about what had happened to Farmer in the garage and said that Farmer had to be revived three times. Sherman also said that Farmer deserved what happened and that Farmer had threatened to call the police.

Mid-morning on Wednesday, Sherman paid the interrogators, and, before they left, one of the interrogators told some of the people at the residence, including Schoemig, to make Farmer disappear within 48 hours. The interrogators threatened the group that the same thing would happen to them.

Wednesday night, someone did Internet searches on Sherman's home computer concerning pharmaceuticals.

In the early morning hours of Thursday, September 7, one of the men heard noises coming from the garage. Sherman grabbed a handgun; Schoemig picked up a shotgun; they went to the garage, along with some of the other men who were at the residence. One of the men in the group entered through a window in the office area, and then let some of the men in through the office door that had been locked by Farmer. At the same time, Sherman entered the garage after he opened the garage door by using a keypad on the exterior of the garage. Farmer, who was not armed, ran to a truck inside the garage and locked himself in the cab.

Sherman pointed the handgun at Farmer and told him to get out of the truck. Farmer complied and lay down on the floor, pleading with Sherman not to kill him. The men retied Farmer and gagged him.

Sherman and Schoemig went into the house, where they retrieved duct tape, a bandana, and handcuffs. Sherman also went into his master bathroom where he stored his own prescribed pain medications. They took the items back to the garage.

Schoemig crushed more methamphetamine and told Sherman that he needed to decide what to do with Farmer. Sherman replied: "Well, you know what's got to be done." Schoemig injected something into Farmer, after which Farmer snored loudly, a sign of opiate overdose.

The men again left Farmer in the garage, and Schoemig told at least one of the other men that they had given Farmer more drugs. Schoemig checked on Farmer twice during the next couple of hours. After checking on Farmer the second time, Schoemig returned to the residence to report that Farmer was dead.

The group had already decided to take Farmer's body to an abandoned mine in Nevada. Early Thursday morning, Schoemig and one of the other men took Farmer's body in Sherman's truck to the mine, placed the body in the mine, and detonated some explosives. They washed and waxed the truck in Reno.

Schoemig headed back to Penryn, but was pulled over for speeding. The truck was impounded because Schoemig did not have a valid license, so Sherman and Michael Dockins drove to the Donner Summit area to retrieve Schoemig and the other man. On the ride back to Penryn, Schoemig told Sherman that everything had gone fine.

On Friday, and on Sherman's orders, Schoemig and another man thoroughly cleaned Sherman's garage, including tools and equipment, using water and bleach. Sherman specifically ordered Schoemig to wipe down the blood splatter. Several days later, some of the other men disposed of rags with vomit and blood. Sherman and Dockins disposed of a tarp from the garage in a dumpster in Sacramento. In October, Sherman had Schoemig remove tiles from the garage floor. Despite the thorough cleaning of the garage, a search revealed a blood stain containing Farmer's DNA.

Farmer's body was found in the abandoned mine near Reno on October 3, 2006, about a month after the murder. An autopsy revealed that Farmer died of homicidal violence. He may have died of either (1) strangulation or asphyxiation or (2) lethal injection. Traces of methamphetamine, diazepam (Valium), hydromorphone (Dilaudid), tramadol (Ultram), and amphetamine were found in his blood. Sherman had been prescribed diazepam, hydromorphone, and amphetamine.

DISCUSSION

SCHOEMIG'S APPEAL

Several of Schoemig's contentions on appeal arise from the prosecution's argument at trial that Schoemig was guilty of first degree murder based on a natural and probable consequences theory. That theory was that first degree murder was the natural and probable consequence of Schoemig's aiding and abetting the crime of false imprisonment by violence or menace. Schoemig contends the court erred by instructing on the theory, instructing on how the defense of duress could apply to the theory, and not instructing on lesser-included murder offenses which the jury could reach by applying the theory.

Before addressing these contentions, however, we analyze the trial court's instructions and conclude that the natural and probable consequences theory as stated in the instructions, which we presume the jury followed, applied only to second degree murder. Because the jury convicted Schoemig of first degree murder, not second degree murder, it could not have relied on the natural and probable consequences theory. Hence, any instructional error concerning the unutilized natural and probable consequences theory was harmless beyond a reasonable doubt.

Therefore, to provide a basis for our discussion of Schoemig's contentions on appeal, some of which assume that the jury convicted Schoemig of first degree murder based on the natural and probable consequences theory, we first explain why the jury did not rely on the natural and probable consequences theory to convict Schoemig of first degree murder.

The prosecution argued at least four different theories of first degree murder against Schoemig: (1) murder by poison; (2) willful, deliberate, and premeditated murder; (3) felony murder (torture); and (4) the above-mentioned theory of aiding and abetting false imprisonment by violence or menace, the natural and probable consequence of which was murder.

The jury did not specify the theory on which it based Schoemig's first degree murder conviction. However, the jury acquitted Schoemig of torture and found not true the special circumstance allegations of murder by torture and murder by poison. Schoemig argues that, as a result of the jury's findings as to torture and poisoning, the jury could not have convicted him of first degree murder under any theory other than the natural and probable consequences theory. The argument is unconvincing. As we explain, the jury could not have followed the trial court's instructions and found Schoemig guilty of first degree murder based on the natural and probable consequences theory. Later, in connection with Schoemig's sufficiency-of-evidence argument in part I, we conclude the jury validly based its conviction for first degree murder on either murder by poison; willful, deliberate, and premeditated murder; or both.

The court's instructions did not allow the jury to convict Schoemig of first degree murder under the natural and probable consequences theory, the prosecutor's misguided efforts notwithstanding.

The court's instruction concerning the natural and probable consequences theory (CALCRIM No. 403) included three elements: (1) Schoemig was guilty of false imprisonment by violence or menace, (2) during the commission of false imprisonment a coparticipant committed murder, and (3) a reasonable person would have known the murder was a natural and reasonable consequence of the false imprisonment. The instruction, however, did not give direction concerning the degree of murder.

The court further instructed the jury concerning the degree of murder as follows:

"If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree.

"The defendant has been prosecuted for first degree murder under four theories: (1) willful, deliberate, premeditated murder, (2) murder by poison, (3) felony-murder rule and (4) aiding and abetting.

"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. . . . [¶] . . . [¶]

"The defendant is guilty of first degree murder if the People have proved that the defendant murdered by using poison. [¶] . . . [¶]

"All other murders are of the second degree.

"The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder." (Italics added.) (See CALCRIM No. 521.)

Elsewhere, the court instructed that the jury could also find Schoemig guilty of first degree murder based on the felony-murder rule (torture), but it never instructed that the jury could find first degree murder on any other theory, including the natural and probable consequences theory.

We presume the jury followed the instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390.) Since the jury found Schoemig committed first degree murder, it could not have based its conviction on the natural and probable consequences theory. The instructions prevented it from doing so.

We recognize that the trial court identified aiding and abetting as one of the prosecution's theories; however, the court also instructed the jury that it must follow the law as given by the court and not conflicting comments from the attorneys and, as noted, the court's instructions, considered as a whole, did not allow a first degree murder conviction based on the natural and probable consequences theory.

Recognizing the jury therefore did not base its verdict of first degree murder on the natural and probable consequences theory, we consider Schoemig's contentions on appeal.

I

Sufficiency of Evidence of First Degree Murder

Schoemig assumes that the jury could not have based its first degree murder conviction on (1) felony murder (torture), (2) murder by poison, or (3) willful, deliberate, and premeditated murder. Based on that assumption, he contends that the evidence was insufficient to support the verdict because it cannot be sustained on the natural and probable consequences theory. We conclude that the jury based its first degree murder conviction on either (1) murder by poison or (2) willful, deliberate, and premeditated murder and, as noted, the jury could not have based its verdict on the natural and probable consequences theory. Because Schoemig does not challenge the sufficiency of the evidence as to (1) murder by poison or (2) willful, deliberate, and premeditated murder (which evidence was overwhelming), his contention that the evidence was insufficient to support the first degree murder conviction is without merit.

Other than the natural and probable consequences theory, the prosecutor argued three possible first degree murder theories: (1) felony murder (torture); (2) murder by poison; and (3) willful, deliberate, and premeditated murder. Schoemig correctly argues the acquittal on the torture count foreclosed the jury from convicting him of first degree murder under the felony-murder theory. The court instructed the jury it had to find Schoemig guilty of torture before it could conclude he was guilty of first degree murder under the theory of felony murder (torture). By finding him not guilty of torture, the jury was foreclosed from finding him guilty of first degree murder under the felony-murder (torture) theory.

Having eliminated two theories of first degree murder, only two theories remain on which the jury could have relied: (1) murder by poison and (2) willful, deliberate, and premeditated murder.

Schoemig claims the jury's not true finding on the special circumstance allegations of murder by poison and murder by torture, both of which required a showing of intent to kill, precluded the jury from finding him guilty of first degree murder under the theories of murder by poison or willful, deliberate, and premeditated murder. He is incorrect.

Apparent inconsistencies between verdicts, or between a verdict and a finding on an enhancement or special circumstance allegation do not impeach the validity of the verdict. (People v. Miranda (2011) 192 Cal.App.4th 398, 405-406 (Miranda); see also People v. Avila (2006) 38 Cal.4th 491, 600-601.)

"In part, section 954 provides: 'An acquittal of one or more counts shall not be deemed an acquittal of any other count.' It is well established that, under section 954, inconsistent verdicts are allowed to stand if the verdicts are otherwise supported by substantial evidence. (People v. Lewis (2001) 25 Cal.4th 610, 656 [(Lewis)].) '[A]ny verdict of guilty that is sufficiently certain is a valid verdict even though the jury's action in returning it was, in a legal sense, inconsistent with its action in returning another verdict of acquittal or guilt of a different offense.' (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 75, p. 110.) The rule applies equally to inconsistent enhancement findings (Lewis, supra, at p. 656), and to an enhancement finding that is inconsistent with the verdict on a substantive offense (People v. York (1992) 11 Cal.App.4th 1506, 1510). In Lewis, the court explained, '"Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. [Citations.] This review should be independent of the jury's determination that evidence on another count was insufficient." [Citation.]' (Lewis, supra, at p. 656.) 'An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict. [Citations.]' (Ibid.)" (Miranda, supra, 192 Cal.App.4th at pp. 405-406.)

Inconsistent verdicts between a criminal charge and a special allegation "may be caused not by the confusion but the mercy of the jury, of which appellant can neither complain nor gain further advantage." (People v. Federico (1981) 127 Cal.App.3d 20, 33.)

Thus, we do not concern ourselves with whether an inconsistency may exist between the findings on the special circumstance allegations and the verdict of first degree murder. If substantial evidence supports a first degree murder conviction on the two theories the jury could have utilized to convict (murder by poison and willful, deliberate, and premeditated murder), then we must affirm the conviction, regardless of whether the jury found the special circumstances of murder by poison and murder by torture not true.

Regarding murder by poison, the Supreme Court has expressly rejected Schoemig's argument that a jury's rejection of a special circumstance allegation of murder by poison precludes the jury from convicting a defendant of first degree murder by poison. Said the high court: " '[I]t is not the case that the elements of the murder-by-poison special circumstance merely repeat the elements that render a homicide a first degree murder when committed by means of poison.' (People v. Catlin (2001) 26 Cal.4th 81, 158 (Catlin); see § 189 ['All murder which is perpetrated by means of . . . poison . . . is murder of the first degree.']; § 190.2, subd. (a)(19) [defining the poison-murder special circumstance as a first degree murder in which '[t]he defendant intentionally killed the victim by the administration of poison'].) 'The special circumstance allegation, unlike the definition of first degree murder by poison, requires proof that the defendant intentionally killed the victim. For the purpose of a first degree murder conviction based upon an unlawful killing by means of poison, proof of implied malice would suffice . . . .' (Catlin, supra, 26 Cal.4th at p. 158.) Therefore, even if we were to assume the jury rejected the murder-by-poison special circumstance because it was not persuaded beyond a reasonable doubt that . . . defendant . . . intended to kill . . . by means of the drugs, the jury still could have reasonably found defendant guilty of first degree murder by poison if it found that [he] acted with implied malice. (People v. Diaz (1992) 3 Cal.4th 495, 568 ['A defendant acting with implied malice who kills his or her victim with poison is guilty of first degree murder even if the defendant lacks the intent to kill.'].)" (People v. Jennings (2010) 50 Cal.4th 616, 639-640.)

Because (1) the jury could have based its first degree murder verdict on the theories of murder by poison and willful, deliberate, and premeditated murder and (2) Schoemig does not argue on appeal that the evidence was insufficient to sustain a conviction on those theories, his sufficiency-of-evidence argument is without merit.

In any event, substantial evidence supports the first degree murder conviction under the theories of murder by poison and willful, deliberate, and premeditated murder. Schoemig told Sherman a decision had to be made about Farmer, and then he administered the fatal injection.

Furthermore, since (1) Schoemig's sole argument concerning sufficiency of the evidence is that the evidence was insufficient to sustain a first degree murder conviction based on the natural and probable consequences theory and (2) the jury did not base its verdict on that theory, his contention is not only without merit but misses the mark.

II

Denial of Instruction on Duress as Negating Premeditation

Schoemig's defense was duress. As part of that defense, he sought a pinpoint instruction on the effect duress could have on the required mental state for convicting him of first degree murder. His proposed instruction read: "Evidence of duress may be relevant to determining whether defendant Peter Schoemig acted with the required mental state necessary for proof beyond a reasonable doubt of first degree murder." The trial court denied the request, relying on the long-standing rule that duress is not a defense to murder.

Schoemig contends the court erred in denying his request. He relies on People v. Burney (2009) 47 Cal.4th 203 (Burney), a case decided after trial in this matter had started but before the court instructed the jury. In Burney, the Supreme Court indicated duress may negate the elements of deliberation or premeditation under some circumstances. (Id. at p. 249.)

Schoemig argues the jurors, to the extent they found him guilty on a premeditation theory, were, by the trial court's denial of his pinpoint instruction, improperly precluded from considering duress. We disagree.

In Burney, a murder defendant requested the following pinpoint instruction: " 'You may consider evidence showing the existence of threats, menaces or compulsion that played a part in inducing the unlawful killing of a human being for such bearing as it may have on the question of whether the murder was of the first or second degree.' " (Burney, supra, 47 Cal.4th at p. 249.) The trial court denied the request. The defendant contended that without the instruction, he was precluded from arguing that duress negated an intent to kill. (Ibid.)

The high court found no error: "It is well established that duress does not constitute a defense to murder, and does not reduce murder to manslaughter. (People v. Anderson (2002) 28 Cal.4th 767, 781-783 [(Anderson)].) Nonetheless, duress may negate the deliberation or premeditation required for first degree murder, and an instruction such as the one requested by defendant may be appropriate if warranted by the circumstances of the case. (Id. at p. 784.)" (Burney, supra, 47 Cal.4th at p. 249.) The court went on to find that no evidence in the record supported giving the defendant's proposed instruction.

The Supreme Court's reference to Anderson helps explain what it meant when it said duress may negate deliberation or premeditation. Essentially, duress may negate deliberation or premeditation only when, as a matter of fact, the duress results in a killing performed without any reflection. However, duress does not negate deliberation or premeditation if the defendant still had an opportunity to deliberate on whether he should follow the order to kill or be killed himself.

The Burney court relied on the following language in Anderson: "Defendant also argues that, at least, duress can negate premeditation and deliberation, thus resulting in second degree and not first degree murder. We agree that a killing under duress, like any killing, may or may not be premeditated, depending on the circumstances. If a person obeys an order to kill without reflection, the jury might find no premeditation and thus convict of second degree murder. As with implied malice murder, this circumstance is not due to a special doctrine of duress but to the legal requirements of first degree murder. The trial court instructed the jury on the requirements for first degree murder. It specifically instructed that a killing 'upon a sudden heat of passion or other condition precluding the idea of deliberation' would not be premeditated first degree murder. (Italics [in original].) Here, the jury found premeditation. In some other case, it might not. It is for the jury to decide. But, unless and until the Legislature decides otherwise, a malicious, premeditated killing, even under duress, is first degree murder." (Anderson, supra, 28 Cal.4th at p. 784.)

Contrary to Schoemig's arguments, the Burney court did not authorize an instruction on duress merely because the defense of duress is raised against a charge of first degree murder. Rather, such an instruction may be justified only if the alleged duress is such as to eliminate the opportunity for the defendant to premeditate or deliberate before committing the murder.

Here, Schoemig has not argued that the duress he alleged occurred prevented him from deliberating whether to kill or be killed. Indeed, he cannot make that argument. The evidence is overwhelming that he did not act under duress with respect to killing Farmer. Farmer's death might be called a slow murder. It consumed the better part of a day and consisted of staggering atrocities. No matter what pressure may have been applied to him, Schoemig had numerous opportunities to deliberate on the question of "who best to be killed, Farmer or me." He consistently decided in favor of Farmer's death. In fact, it was Schoemig, not Sherman, who in the end pressed the question of what to do about Farmer, and it was Schoemig who administered the lethal injection. Accordingly, the trial court did not err when it denied Schoemig's proposed instruction.

III

Hearsay Evidence of Admission Against Penal Interest

Schoemig claims the trial court erred when, following an Evidence Code section 402 hearing, it refused to allow a defense witness, Michael Davis, a cousin of Sherman's friend Michael Dockins, to testify that a third party confessed to Dockins, and then Dockins told him, that the third party administered the lethal injection to Farmer. Schoemig contends this double hearsay was admissible under Evidence Code section 1230 as statements against penal interest. He asserts the court's decision denying admission of the evidence was an abuse of discretion and violated his constitutional rights to compulsory process and to present a defense.*fn2

We disagree. Simply put, such hearsay may be excluded at the discretion of the trial court if it is unreliable, and this hearsay was unreliable. Furthermore, exclusion of the evidence did not violate Schoemig's constitutional rights.

A. Additional background information

Prior to trial, both defendants filed in limine motions seeking to introduce evidence of third party culpability through witnesses, including Dockins and Davis. At an Evidence Code section 402 hearing on Dockins's testimony, Dockins, who had been charged as an accessory (§ 32), invoked his Fifth Amendment right against self-incrimination. He thus was unavailable as a witness.

The court conducted an Evidence Code section 402 hearing regarding the admissibility of Davis's testimony about conversations he had with Dockins concerning Dockins's role in Farmer's murder. At that hearing, Davis testified that, in 2007, Dockins was living with Davis and his mother. Davis claimed that one evening, while the two men were drinking beers, smoking methamphetamine, and taking pills, Dockins began discussing his involvement in the crimes against Farmer. Dockins said he, and not Sherman, was the one who arranged for the men from Stockton to go to Sherman's home and interrogate Sherman's cousin (Farmer) about the missing chemicals. Dockins said he and the three men arrived at Sherman's home together. Dockins told the men to use whatever method was necessary to locate the chemicals. Then Dockins took Sherman's oldest son to Southern California so that the son would not be at the house during the interrogation.

Dockins told Davis that, after he had left for Southern California, he received a call. The caller said the interrogation had turned into "a really bad situation." The three men had severely tortured Sherman's cousin without learning the chemicals' location, and the caller asked what they should do. Dockins told the caller that "hypothetically" if he administered a large dose of Dilaudid and OxyContin to Sherman's cousin intravenously, the cousin would die of an overdose.

Davis testified that Dockins also told him the person with whom he spoke on this phone call was the person who performed the torture and, more significantly, was also the person who actually administered the fatal injection. Davis, however, refused to disclose the caller's identity. He said he feared for his life if he disclosed the caller's identity because the caller was not in custody.

Davis admitted he had previously told a detective that the person who called Dockins was Sherman. He said he falsely identified Sherman out of fear of disclosing the caller's true identity. Davis also stated Dockins told him a gun was used to persuade two people to dispose of the body.

The trial court asked Davis if the person who called Dockins was Lawrence Macken. Davis refused to answer, claiming that answering would put his life in jeopardy. Even when the court threatened to hold him in contempt, Davis said he could neither confirm nor deny the caller was Macken.

The defense attorneys argued Davis's testimony of his conversation with Dockins was admissible under Evidence Code section 1230 as a statement against penal interests. The prosecutor claimed the testimony did not qualify as a statement against interest because it lacked credibility and because he would not be able to impeach either Davis or Schoemig with a prior admission by Schoemig to police that he was the person who injected Farmer intentionally to kill him. The prosecutor argued all of the testimony should be excluded.

The trial court ruled that most of Davis's testimony would be admitted. The court permitted Davis to testify of Dockins's statements concerning what Dockins did or said, finding those statements to be independent admissions against penal interest. However, the court prohibited Davis from testifying as to Dockins's statements about what others told Dockins, including the statement that the caller was the person who administered the fatal injection and that two people had to be coerced at gunpoint to dispose of the body. The court excluded the latter type of testimony because the prosecution could not exercise its right of cross-examination against those statements on account of Davis's refusal to identify the caller. In support of its ruling, the court relied on People v. Seminoff (2008) 159 Cal.App.4th 518, a case affirming a trial court's striking of a co-defendant's entire testimony when, after testifying, she claimed Fifth Amendment protection and refused to be cross-examined.

Schoemig contends the court erred in not admitting as a statement against penal interest, Dockins's statement to Davis that the caller confessed to administering the lethal injection.

B. Analysis

Davis's testimony as to what the caller told Dockins involves multiple hearsay. "As with all multiple hearsay, the question is whether each hearsay statement fell within an exception to the hearsay rule. [Citation.]" (People v. Reed (1996) 13 Cal.4th 217, 224-225; Evid. Code, § 1201.) Since defendants sought to introduce Davis's testimony only on the basis of an admission against penal interest, we focus our discussion on that argument.

"In California, '[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.' ([Evid. Code,] § 1230.) The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 610-611, italics added.)

The trial court acted well within its discretion to determine the caller's confession of administering the lethal injection was not admissible because the statement was unreliable.

"The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant. [Citation.]" (People v. Frierson (1991) 53 Cal.3d 730, 745.) "[E]ven when a hearsay statement runs generally against the declarant's penal interest and redaction has excised exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission. [Citations.] [¶] . . . We have recognized that, in this context, assessing trustworthiness '"requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception." ' [Citation.]" (People v. Duarte, supra, 24 Cal.4th at p. 614.)

Here, without knowing the purported caller's identity, the trial court could not assess the trustworthiness of the caller's statement to Dockins. It could not determine the caller's possible motivation. It also could not determine his relationship to Dockins, Sherman, or Schoemig. At one point, Davis had said Sherman was the caller, and his proposed testimony contradicted his earlier statement. Because Davis did not provide any information as to when the call was allegedly made, the court could not credibly determine whether the caller was even someone who was at the torture scene when it happened.

The purported caller's statement to Dockins was not the only statement the court could find lacked trustworthiness. The court could also reasonably conclude that Dockins's purported statement to Davis informing him of the call was not reliable. Dockins made the statement to Davis some 10 to 13 months after the crime. Both he and Davis were drinking, smoking methamphetamine, and using pills at the time he made the statement. According to the prosecutor, the statement contradicted a recorded statement Dockins gave to a detective when he said Schoemig admitted injecting Farmer, specifically and intentionally to kill him. These circumstances presented a reasonable basis for the court to determine that Dockins's statement concerning the caller being the person who administered the lethal injection was not trustworthy.

Schoemig's claims of constitutional error are also without merit. Schoemig never objected to the court's ruling on constitutional grounds and thus forfeited this argument here. (See People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) The argument also fails on its merits. In general, application of the ordinary rules of evidence do not impermissibly infringe on a defendant's right to present a defense. (People v. Robinson (2005) 37 Cal.4th 592, 626-627.) Here, because the hearsay, even if subject to an exception, was inherently unreliable, excluding it did not violate Schoemig's right to present a defense.

Schoemig also suffered no denial of due process. His citation to Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297] is not persuasive. There, the high court overturned a state court's application of its hearsay rule because it excluded evidence made under circumstances that provided considerable assurance of the evidence's reliability. (Id. at p. 298-302.) Here, Schoemig cannot complain of a denial of due process because the hearsay evidence he seeks to introduce was unreliable.

IV

Sufficiency of Evidence Supporting Instruction on Murder as Natural and Probable Consequence of Aiding and Abetting False Imprisonment by Violence or Menace

Schoemig contends the trial court erred by instructing the jury on murder as a natural and probable consequence of aiding and abetting false imprisonment by violence or menace. He claims there was insufficient evidence that Farmer's murder was a natural and probable consequence of Farmer's false imprisonment.

"The trial court should grant a prosecutor's request that the jury be instructed on the 'natural and probable consequences' rule only when (1) the record contains substantial evidence that the defendant intended to encourage or assist a confederate in committing a target offense [in this case, false imprisonment by violence or menace], and (2) the jury could reasonably find that the crime actually committed by the defendant's confederate [murder] was a 'natural and probable consequence' of the specifically contemplated target offense." (People v. Prettyman (1996) 14 Cal.4th 248, 269.)

Schoemig claims proof of the second predicate is lacking here. He asserts there was insufficient evidence on which the jury could find Farmer's murder was the natural and probable consequence of the false imprisonment.

We need not address Schoemig's assertion that there was insufficient evidence to support a natural and probable consequences instruction because, even assuming the trial court erred, instructing on the theory was harmless. As explained above, the jury did not rely on the natural and probable consequences theory to convict Schoemig. If it had, it would have necessarily convicted him of second degree murder. Instead, it convicted him of first degree murder under the theories of murder by poison and willful, deliberate, and premeditated murder. Thus, even if the court had not instructed on the natural and probable consequences theory, the verdict would have been the same. Under any standard of harmless error, it was harmless. (See Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] [federal standard of harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [state standard of whether reasonably probable a more favorable result would have been obtained].)

V

Instruction on Duress as Defense Against

Natural and Probable Consequences Theory

Schoemig contends that the way the trial court instructed the jury concerning duress may have confused the jury and prevented it from applying the defense of duress to the first degree murder conviction under the natural and probable consequences theory. We need not consider the merits of this contention because, even assuming the instructions on duress were confusing, they could not have been prejudicial under any standard of review because the jury did not base its first degree murder conviction on the natural and probable consequences theory. (See Chapman v. California, supra, 386 U.S. 18; People v. Watson, supra, 46 Cal.2d at p. 836.)

VI

Instructions on Lesser Included Offenses

Schoemig acknowledges the court instructed the jury on the lesser included offenses of second degree murder and involuntary manslaughter. However, he contends the court erred by not specifically linking its instructions on second degree murder and involuntary manslaughter to the theory of murder as a natural and probable consequence of aiding and abetting false imprisonment by violence or menace. He claims that as a result, the jury was precluded from considering these lesser included offenses if they applied the natural and probable consequences theory. Again, because the jury did not base its verdict of first degree murder (or any other verdict, for that matter) on the natural and probable consequences theory, even assuming the error Schoemig complains of, it could not have prejudiced him under any harmless error standard.

Schoemig states: "None of [the] instructions made clear that jurors could return a verdict of second-degree murder or manslaughter under the natural and probable consequences theory." This, of course, assumes that the instructions allowed the jury to return a verdict of first degree murder based on the natural and probable consequences theory. As noted, that was not the case. Accordingly, there was no need for instructions informing the jury that second degree murder and manslaughter could be lesser-included offenses of such a crime.

In any event, the jury convicted Schoemig of first degree murder based on murder by poison or willful, deliberate, and premeditated murder. Therefore, his argument that he was prejudiced by the failure to give a lesser-included crimes instruction as to the natural and probable consequences theory cannot help him now.

SHERMAN'S APPEAL

Sherman's appeal alleges instructional error. He claims the court erred by (1) instructing the jury with CALCRIM No. 371 regarding evidence of a third person's attempt to suppress evidence; (2) denying Sherman's request for a pinpoint instruction on third-person culpability; and (3) after denying the request for the pinpoint instruction, instructing the jury on consciousness of guilt using CALCRIM Nos. 362 and 371 which, Sherman contends, are impermissible pinpoint instructions and not impartial. We disagree with each contention.

VII

CALCRIM No. 371

Using CALCRIM No. 371, the trial court instructed Sherman's jury that conduct by someone other than Sherman to conceal or destroy evidence could show Sherman was aware of his guilt, but only if he was present and knew about the conduct or, if not present, authorized the third person's activities. Sherman claims CALCRIM No. 371 is not consistent with California law and violates his federal due process rights to the extent the instruction allowed the jury to infer consciousness of guilt from conduct not authorized by him even though it occurred in his presence. Schoemig joins in the contention. Both defendants are incorrect.

"California law prohibits proving consciousness of guilt by establishing attempts to suppress evidence unless those attempts can be connected to a defendant. [Citations.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) The "necessary nexus between [a] defendant and the alleged suppression of evidence" (People v. Hannon (1977) 19 Cal.3d 588, 599) is shown when the suppression or attempt to suppress "was made by the defendant or by another with the defendant's knowledge or authorization." (People v. Nelson (2011) 51 Cal.4th 198, 214 (Nelson), italics added, fn. omitted.)

" ' "Generally, evidence of the attempt of third persons to suppress testimony is inadmissible against a defendant where the effort did not occur in his presence. [Citation.] However, if the defendant has authorized the attempt of the third person to suppress testimony, evidence of such conduct is admissible against the defendant." ' [Citations.]" (People v. Hannon, supra, 19 Cal.3d at p. 599; see also People v. Gray (2005) 37 Cal.4th 168, 220; People v. Williams (1997) 16 Cal.4th 153, 200; People v. Weiss (1958) 50 Cal.2d 585, 554.)

CALCRIM No. 371 accurately reflects California law. Indeed, the Supreme Court in Nelson quoted the instruction with approval: "Consciousness of guilt may be shown by (1) a defendant's own efforts to create false evidence or obtain false testimony, or (2) the efforts of someone else to do so, 'but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions.' (CALCRIM No. 371.)" (Nelson, supra, 51 Cal.4th at p. 214, fn. 9.)

Accordingly, Sherman's claim that the instruction is inconsistent with California law is incorrect. The Supreme Court has instructed that the prosecution need not prove a defendant authorized a third person's suppressive conduct before admitting evidence of it to establish defendant's consciousness of guilt if the defendant was present and knew of the third party's conduct.

Sherman's reliance on People v. Cabral (2004) 121 Cal.App.4th 748 (Cabral) and People v. Bell (2004) 118 Cal.App.4th 249 (Bell) to argue otherwise is without merit. In both of those cases, the Court of Appeal struck down CALJIC No. 2.28, an instruction regarding how a jury should treat the late disclosure of evidence, because the instruction did not require a nexus be shown between the defendant and the conduct of his attorney, and because the instruction did not inform the jury how it could use the evidence.

Unlike CALJIC No. 2.28, CALCRIM No. 371 does not contain these flaws. The instruction requires a nexus between the defendant and the suppression of evidence. That nexus is shown by the defendant's knowledge and presence, or his authorization of the conduct. Nothing in Cabral or Bell implies a defendant's witnessing the destruction of inculpatory evidence is insufficient, without express authorization, to establish the required nexus.

In addition, the instruction informs the jury how it may use this evidence. CALCRIM No. 371 instructs the jury the evidence of defendant's knowledge of third party conduct is not sufficient by itself to prove guilt, and its weight and significance are left to the jury to decide. Thus, the instruction ensures that only evidence from which the trier of fact could rationally infer consciousness of guilt will be admitted but a conviction must rest on additional proof. Cabral and Bell do not apply here.

Sherman's claim that CALCRIM No. 371 violates constitutional due process protections fares no better. Sherman asserts the instruction violates due process because a trier of fact allegedly cannot rationally determine that a defendant has a consciousness of guilt simply from his being present when third parties destroy incriminating evidence. (See Ulster County Court v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 777, 792.)

We disagree. The same reasons why CALCRIM No. 371 is consistent with California law are the very reasons why the instruction does not offend due process guarantees. Due process protections require the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime with which a defendant is charged. (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375].) CALCRIM No. 371 does not reduce this burden, nor does it, as Sherman argues, create an unacceptable risk that a jury may make an erroneous factual determination.

CALCRIM No. 371 ensures the inference of consciousness of guilt will be based on evidence, and only relevant evidence, from which the trier of fact can rationally infer consciousness of guilt.*fn3 The required nexus contained in CALCRIM No. 371 guarantees the inference will not be irrational or arbitrary. It is not irrational for a jury to conclude that defendant's observance of others destroying incriminating evidence in his own garage demonstrates his consciousness of guilt. And, particularly in this case, it was not irrational for the jury to reach that conclusion where Sherman was the person who ordered the evidence be destroyed. Sherman ordered Schoemig to clean the garage, wipe down the blood splatter, and remove the tiles from the floor. This is a case where the nexus requirement was satisfied.

By requiring the third party conduct to have occurred in defendant's presence or with his authorization, the instruction guarantees the presumed fact, consciousness of guilt, is more likely than not to flow from the proven fact on which the presumption is made to depend, and as such satisfies the demands of due process. (See Ulster County Court v. Allen, supra, 442 U.S. at p. 157.)

CALCRIM No. 371 also satisfies due process because it does not reduce the prosecutor's burden of proof. It instructs the jury that evidence of the defendant's knowledge of third party conduct is not sufficient by itself to prove guilt, and its weight and significance are left to the jury to decide. An instruction that permits, but does not mandate, the jury to make an inference and limits the use to which the inference can be put does not relieve the state of its burden to prove beyond a reasonable doubt every fact necessary to convict the defendant of the charged crime, and thus does not violate due process. (See Francis v. Franklin (1985) 471 U.S. 307, 314 [85 L.Ed.2d 344, 353-354].)

VIII

Proposed Pinpoint Instruction on Third Party Culpability

Sherman claims the trial court erred when it denied his request to give the jury a proposed pinpoint instruction on third party culpability, his theory of defense. The proposed instruction read: "Evidence has been presented that a third party was the perpetrator of some of the charged offenses. If this evidence raises a reasonable doubt in your minds of Donald Sherman's guilt, he is entitled to a verdict of not guilty on those offenses." The court rejected Sherman's request because the proposed instruction was "vague and inappropriate here."

Instead of giving Sherman's proposed instruction, the court instructed the jury with CALCRIM No. 373 with the addition of another sentence, italicized here: "The evidence shows that other persons may have been involved in the commission of the crimes charged against the Defendant. There may be many reasons why someone who appears to have been involved might not be a co-defendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the Defendant on trial here committed the crimes charged. However, you may consider the actions of everyone involved in this case in determining whether the People have proved the charges beyond a reasonable doubt."

Sherman contends the court erred because the instruction he offered correctly stated the law, sufficient evidence in the record supported his proposed instruction, and the court's instruction did not inform the jury that evidence of a third party perpetrator by itself could raise a reasonable doubt. Assuming only for the sake of argument the trial court erred in not giving Sherman's proposed instruction, we conclude any such error was harmless.*fn4

Our Supreme Court has " 'suggested that "in appropriate circumstances" a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged.' (People v. Bolden (2002) 29 Cal.4th 515, 558.)" (People v. Moon (2005) 37 Cal.4th 1, 30.) When examining whether a court erred in not giving a pinpoint instruction, we are "mindful of the general rule that a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation] . . . ." (Ibid.)

Assuming for purposes of argument the trial court's determination that Sherman's proposed instruction was vague and inappropriate was error, we must determine whether the error was prejudicial. " ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" ' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)

Evidence of third party culpability simply supports a theory that defendant did not commit the criminal act as charged -- in other words, the prosecution did not prove its case beyond a reasonable doubt. Thus, when the Supreme Court encountered in another case the argument raised here by Sherman, it concluded any error from not giving a pinpoint instruction on third party culpability was harmless because the trial court had adequately instructed the jury on reasonable doubt, and the jury understood from defense counsel's argument defendant's theory that someone else committed the crime. (People v. Earp (1999) 20 Cal.4th 826, 886-887.)

So it is here as well. The trial court instructed Sherman's jury with CALCRIM No. 220 on the prosecution's burden of proof beyond a reasonable doubt and the presumption of innocence. It also instructed the jury with CALCRIM No. 301 that the testimony of a single witness was sufficient to prove any fact. In addition, it instructed the jury with the modified version of CALCRIM No. 373 that the actions of everyone involved in this set of crimes could be considered in determining whether the prosecution had met its burden of proof beyond a reasonable doubt.

Moreover, the jury knew from Sherman's testimony, Davis's testimony, and defense counsel's closing argument that Sherman contended third persons and not he committed the crimes. Sherman testified, and Sherman's counsel argued, that Dockins instigated the torture and took matters beyond their intended consequences. Sherman and his attorney also asserted Macken and Dockins, and not Sherman, performed the torture. Sherman and his attorney stated Sherman told Macken and Dockins to stop the violence and he tried to withdraw, but he was then threatened himself.

Under these circumstances, we conclude the instructions as a whole and within the context of the entire record fully and fairly instructed the jury on the applicable law. Any error by the court's omitting the proposed instruction on third party culpability was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836-837.)

Sherman contends the trial court's failure to instruct on third party culpability denied him his constitutional right to an instruction on a recognized defense. However, third party culpability evidence is not a true affirmative defense. It does not constitute a justification, mitigation, or excuse for a criminal act. Instead, such evidence simply supports a theory that defendant did not commit the charged acts. As already stated, that theory is in essence a failure by the prosecution to prove its case beyond a reasonable doubt. We have concluded the jury was more than adequately instructed on that theory.

Sherman also claims the court's rejection of his instruction led the jury to conclude the third party's culpability had to be proved by defendant beyond a reasonable doubt. We disagree. Initially, we note Sherman's proposed instruction said nothing about a defendant not needing to prove third party culpability beyond a reasonable doubt. To the extent such instruction may have been required, Sherman invited that error by not seeking the language in his own proposed instruction.

More significantly, the jury was sufficiently instructed it was solely the prosecution's burden to prove all elements of the crimes beyond a reasonable doubt. The trial court gave no instructions from which a juror reasonably could have inferred Sherman had any burden of proof whatsoever. We presume the jury followed the instructions on the prosecution's burden of proof and the presumption of innocence (People v. Lewis, supra, 26 Cal.4th at p. 390), and we conclude Sherman suffered no violation of his constitutional rights.

IX

CALCRIM Nos. 362 and 371

Sherman claims the trial court erred by instructing the jury on consciousness of guilt based on false or misleading statements (CALCRIM No. 362) and based on his or a third person's acts to suppress evidence (CALCRIM No. 371). He claims the court erred giving these instructions because they are impermissible pinpoint instructions, and, in light of the court's refusal to give the jury his proposed instruction on third party culpability, the instructions violated his constitutional right to impartiality between the prosecution and a defendant in the matter of jury instructions. Schoemig joins in these arguments. We disagree with both arguments.

First, CALCRIM Nos. 362 and 371 do not operate as impermissible pinpoint instructions. The Supreme Court held in People v. Kelly (1992) 1 Cal.4th 495, 531-532 (Kelly) that the predecessor to CALCRIM No. 362, CALJIC No. 2.03, was not an impermissible pinpoint instruction because it told the jury the evidence of consciousness of guilt was not sufficient by itself to prove guilt. "If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence." (Kelly, supra, at pp. 531-532.)

We concluded in People v McGowan (2008) 160 Cal.App.4th 1099, 1103-1104 (McGowan), that the reasoning of Kelly applied equally to CALCRIM No. 362: "Although there are minor differences between CALJIC No. 2.03 and CALCRIM No. 362 . . . , none is sufficient to undermine our Supreme Court's approval of the language of these instructions. Crucially, CALCRIM No. 362 contains nearly identical language to that relied on in Kelly: '[E]vidence that the defendant made such a statement cannot prove guilt by itself.' . . . Thus, like CALJIC No. 2.03, CALCRIM No. 362 is not an unlawful 'pinpoint' instruction. (Kelly, supra, 1 Cal.4th at pp. 531-532.)" (McGowan, supra, 160 Cal.App.4th at p. 1104.)

As Sherman acknowledges, stare decisis requires us to follow Kelly (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455), and we see no reason to revisit our holding in McGowan.

Similarly, the Supreme Court held the predecessor to CALCRIM No. 371, CALJIC No. 2.06, was not an impermissible pinpoint instruction. (See People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224.) Its reasoning applies equally here: "[The instruction] made clear to the jury that certain types of deceptive or evasive behavior on a defendant's part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant's guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.] We therefore conclude that these consciousness-of-guilt instructions did not improperly endorse the prosecution's theory or lessen its burden of proof." (Id. at p. 1224.)

Second, the court's giving of the instructions without also giving Sherman's proposed instruction on third party culpability did not violate any constitutionally imposed burden of judicial impartiality between the prosecution and the defendants regarding jury instructions. The instructions themselves favored Sherman by informing the jurors it was up to them to decide the meaning and importance of any evidence of false statements or suppression, and no matter what the weight given to that evidence, the evidence could not be used by itself to prove guilt. In addition, the instructions' impartiality was strengthened when considered in light of other instructions requiring the prosecution to prove each element of the crimes beyond a reasonable doubt, no matter what actions Sherman took.

The court did not err in giving CALCRIM Nos. 362 and 371.

X

Sentence for Murder

The trial court sentenced Sherman to "25 years to life without the possibility of parole" for the special circumstances first degree murder conviction, as alleged in count one of the information. That sentence, however, is unauthorized. The authorized punishment for first degree murder when a special circumstance under section 190.2 has been found true, as is the case with Sherman, is either death or imprisonment in the state prison for life without possibility of parole. (§ 190.2, subd. (a).) Because the prosecutor chose not to seek the death penalty, the trial court was required to sentence Sherman to a state prison term of life without possibility of parole. Because that was the only sentence the law authorized the court to impose on Sherman, we, on our own motion, modify the judgment to reflect the proper sentence on count one. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [allowing appellate court to correct unauthorized sentence].)

DISPOSITION

The judgment as to Schoemig is affirmed. The judgment as to Sherman is modified by changing the sentence for count one (first degree murder with special circumstances) to life without possibility of parole. As modified, the judgment as to Sherman is affirmed. The clerk of the trial court is ordered to prepare and file an amended abstract of judgment as to Sherman stating that he was sentenced to state prison for an indeterminate term of life without possibility of parole on count one and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: ROBIE , J. HOCH , J.


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