P. v. Casares

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Filed 2/18/05 P. v. Casares CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWARD CASARES,
Defendant and Appellant.
E034779
(Super.Ct.No. FVA018711)
OPINION
APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin,
Judge. Affirmed.
Neil F. Auwarter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor,
Supervising Deputy Attorney General, and Daniel Rogers, Deputy Attorney General, for
Plaintiff and Respondent.

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A jury convicted defendant and appellant Edward Casares, Jr. of first degree
murder. (Pen. Code § 187, subd. (a).)1 The jury also found true the allegations that
defendant committed the murder during the course of a carjacking (§ 190.2, subd.
(a)(17)) and that defendant personally and intentionally discharged a firearm proximately
causing great bodily injury and death to the victim, Michael Sirna (the victim).
(§ 12022.53, subd. (d).) (It was also alleged that defendant personally and intentionally
discharged a firearm (§ 12022.53, subd. (c) and personally used a firearm (§§ 12022.5,
subd. (a)(1) and 12022.53, subd. (b).) However, the court dismissed the section 12022.5,
subd. (a)(1) and section 12022.53, subd. (b) allegations, pursuant to the prosecution’s
motion, and struck the section 12022.53, subd. (c) allegation, pursuant to section 1385.)
The court sentenced defendant to a total term of 50 years to life in state prison.
On appeal, defendant contends that: 1) the trial court erred by failing to sua sponte
instruct the jury on accomplice testimony; and 2) there was insufficient evidence that
defendant intentionally fired the gun. We disagree and affirm the judgment.
FACTUAL BACKGROUND
“We adopt the version of the facts most favorable to the People as the prevailing
party. [Citation.]” (People v. Kilpatrick (1980) 105 Cal.App.3d 401, 406, disapproved
on other grounds as stated in People v. Bustamante (1981) 30 Cal.3d 88, 96.) Thus, this
statement of facts is based largely, but not solely, on Donte Lemon’s statements made to
1 All further statutory references will be to the Penal Code, unless otherwise
indicated.

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Detective Robert Ratcliffe during a police interview. Detective Ratcliffe testified at trial
concerning Lemon’s interview.
On October 7, 2002, between 8:00 p.m. and 9:00 p.m., the victim arrived at the
house of Fred Richard Casper. Donte Lemon was already there with Casper. Bruce
Cameron and Richard Rubin went to Casper’s house later that night. The victim asked
Casper if he could get him some drugs, so Casper left the house to talk to a drug supplier
across the street. Casper returned a few minutes later and told the victim he had to wait.
Shortly thereafter, defendant arrived at Casper’s house to tell him that the drugs were
ready to be picked up. As Casper was leaving, defendant informed Casper that he wanted
to take the victim’s car and that he was planning to use a gun to threaten the victim.
Casper said he did not care as long as defendant brought the car back. Casper then left to
get the drugs.
At some point that night, defendant told Lemon that he was going to “jack” the
victim for his car. Lemon went into the living room and lay down on the couch, adjacent
to the victim, so that he could see what was going to happen. The victim was seated in a
chair. Defendant walked up to the victim and pointed a revolver directly at him. Lemon
thought he heard a click from the gun as though the hammer had been drawn back.
Defendant demanded the victim’s car keys. The victim looked confused and did not say
anything. Defendant became angry and asked the victim if he thought he was kidding.
Defendant then struck the victim across the face with the gun and shot him in the face at
close range. Defendant started to walk out the front door, but then he returned to the

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victim, grabbed the victim’s keys, and left the house. Defendant drove the victim’s car
away.
Cameron and Rubin testified that they were in the kitchen when the victim was
shot. After hearing the gunshot, they fled out the front door. Casper testified that he
heard the gunshot as he was walking to the drug supplier’s house, but just kept walking.
Soon after the shooting, Lemon found Casper and told him what happened. Casper
testified that Lemon told him that he shot the victim, but Casper did not believe him.
Nikki de los Santos, Casper’s friend, testified that she arrived at Casper’s house
after the shooting. After a few minutes, she saw Lemon and Casper returning to the
house. Casper looked upset, so she asked him what was wrong. He told her there was a
dead body in his living room and that they needed to call 911. De los Santos told him
that they should first take all of the drug paraphernalia out of the house since the police
would be investigating. So, de los Santos, Casper, and Lemon went into the house and
“grabbed a bunch of stuff.” De los Santos then drove Casper and Lemon to a nearby
McDonald’s to use a pay phone to call 911.
Lemon took the victim’s wallet and threw it into some bushes. The police later
recovered the victim’s wallet from the bushes where Lemon disposed of it. The police
also recovered the victim’s car. The police found the car in an area of San Bernardino
that was surrounded on one side by a large vacant lot and on the other side by
uninhabited land. The location was about one block from a location where de los Santos
had picked defendant up a few days prior to the shooting.

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Lemon testified at trial for both the prosecution and the defense. We note that
Lemon was incarcerated for auto theft at the time he testified at defendant’s trial. Lemon
admitted that it was not good to be in custody and testify in court against somebody, or be
known as a “rat.” When Lemon testified, he essentially changed his story about what
occurred on the night of the incident. He testified that he was talking with defendant in
the kitchen when the victim got shot. Thus, he testified that he did not see defendant with
a gun, or see defendant shoot the victim in the living room. Lemon said that he had lied
to the police when he told them that defendant shot the victim. Lemon testified that he
wanted to put the blame on someone because Detective Ratcliffe, the officer who
interviewed him, threatened to blame him for the crime.
The jurors heard an audiotape and received a transcript of Detective Ratcliffe’s
interview with Lemon during which he told the police that defendant shot the victim.
Defendant now appeals.
ANALYSIS
I. The Trial Court Had No Sua Sponte Duty to Instruct the Jury on
Accomplice Testimony
Defendant contends that his conviction should be reversed because of the trial
court's failure to instruct the jury sua sponte on the definition of accomplice and the rules

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applying to accomplice testimony.2 “Where the evidence is sufficient to warrant the
conclusion by a jury that a witness implicating the defendant was an accomplice, it is the
duty of the trial court to give instructions regarding accomplices and their testimony,
whether or not the defendant has requested such instructions. [Citations.]” (People v.
Cooper (1970) 10 Cal.App.3d 96, 102.) Essentially, the trial court must instruct the jury
that “the testimony of an accomplice is to be viewed with distrust and that the defendant
may not be convicted on the basis of an accomplice's testimony unless it is corroborated.”
(People v. Hayes (1999) 21 Cal.4th 1211, 1271 (Hayes); People v. Zapien (1993) 4
Cal.4th 929, 982 (Zapien).) Defendant argues the evidence was sufficient to allow the
jury to conclude Lemon was an accomplice.
At trial, Detective Ratcliffe testified concerning his interview with Lemon, during
which Lemon told him that defendant shot the victim. (Lemon himself testified that
defendant was in the kitchen with him when the victim got shot.) Assuming that
Lemon’s out-of-court statements to Detective Ratcliffe constituted the “accomplice
testimony” to which accomplice testimony instructions could apply, we find that there
was insufficient evidence to show that Lemon was an accomplice.
2 The accomplice jury instructions are: CALJIC No. 3.10 (definition of
accomplice), CALJIC No. 3.11 (testimony of an accomplice must be corroborated),
CALJIC No. 3.12 (what evidence is sufficient to corroborate accomplice testimony), and
CALJIC No. 3.18 (accomplice testimony must be viewed with caution). (See People v.
Frye (1998) 18 Cal.4th 894, 965.)

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Pursuant to section 1111, an accomplice is “one who is liable to prosecution for
the identical offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.” “Criminal liability as a principal attaches to those
who aid in the commission of a crime only if they also share in the criminal intent
[Citations.]” (People v. Tewksbury (1976) 15 Cal.3d 953, 960 (Tewksbury).) Lemon was
thus an accomplice only if he acted with “‘guilty knowledge and intent with regard to the
commission of the crime.’ [Citation.]” (Ibid.) “The burden is on the defendant to prove
by a preponderance of the evidence that a witness is an accomplice. [Citation.]” (People
v. Fauber (1992) 2 Cal.4th 792, 834 (Fauber).)
Defendant first points out that Lemon admitted to Detective Ratcliffe that he
(Lemon) knew of defendant’s plan to “jack” the victim’s car, and he accompanied
defendant into the living room, where the confrontation occurred. “Mere presence at the
scene of a crime which does not itself assist its commission or mere knowledge that a
crime is being committed and the failure to prevent it does not amount to aiding and
abetting. [Citation.]” (In re Michael T. (1978) 84 Cal.App.3d 907, 911.) Thus, simply
because Lemon went into the living room knowing that defendant was going to “jack” the
victim’s car did not make Lemon an accomplice. Moreover, there was no indication that
Lemon acted with the “guilty knowledge” that defendant was going to murder the victim.
(Tewksbury, supra, 15 Cal.3d at p. 960.)
Next, defendant points to evidence that Lemon admitted that he took the victim’s
wallet after the shooting. An accomplice is defined as one who is liable to prosecution
for the identical offense charged against the defendant. (§ 1111.)

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Thus, evidence showing that Lemon took the victim’s wallet after he was shot by
defendant in no way demonstrates that Lemon was an accomplice to murder.
Defendant also cites evidence that the police found bullets in the car “in which
Lemon had been transported from the crime scene.” However, there is no evidence
which connects the bullets to the crime. Furthermore, Lemon was driven away from the
crime scene by de los Santos, and there is no evidence showing how the bullets got into
her car. Thus, evidence that bullets were found in de los Santos’s car does not indicate
that Lemon had the criminal intent to kill the victim or that he aided defendant in any
way.
The only evidence that defendant cites that could possibly support his contention
that Lemon was an accomplice is Casper’s testimony that Lemon told him that he
(Lemon) shot the victim. Assuming arguendo that this evidence was sufficient for the
jury to find that Lemon was an accomplice, and that accomplice instructions should have
been given, we nonetheless conclude that the trial court's omission was harmless error.
(Zapien, supra, 4 Cal.4th at p. 981.)
The “[f]ailure to instruct pursuant to section 1111 is harmless if there is sufficient
corroborating evidence. Corroborating evidence may be slight, may be entirely
circumstantial, and need not be sufficient to establish every element of the charged
offense. [Citations.]” (Hayes, supra, 21 Cal.4th at p. 1271, italics added.)
Here, there was ample corroborating evidence. Lemon’s account to the police was
corroborated by the coroner’s examination of the victim’s injuries. At trial, the chief
medical examiner from the coroner’s office testified that the victim was struck across the

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face with a blunt object two to three times. The coroner also testified that the gun was
shot about one foot away from the victim’s face. Furthermore, de los Santos testified that
both Lemon and Casper told her that defendant was going to use a gun to threaten the
victim to get his car. They also told her that defendant “pistol whipped” the victim with
the gun and shot him in the head. In sum, the evidence of defendant's guilt was sufficient
to corroborate Lemon’s statements that defendant killed the victim. Therefore, any error
committed by the trial court in failing to instruct the jury regarding accomplice testimony
was harmless. (Zapien, supra, 4 Cal.4th at pp. 982-983.)
We note defendant’s contention that, although corroborative evidence renders
harmless the omission of CALJIC No. 3.11 (the testimony of an accomplice must be
corroborated) and CALJIC No. 3.12 (what evidence is sufficient to corroborate
accomplice testimony), it does not render harmless the omission of CALJIC No. 3.18
(accomplice testimony must be viewed with caution). He claims that “instead,” this
particular error is subject to the People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)
test. Defendant fails to cite any valid authority. He cites People v. Williams (1988) 45
Cal.3d 1268, 1314, and People v. Gordon (1973) 10 Cal.3d 460, 470. These cases do not
support defendant’s proposition. On the contrary, it is settled that the omission of
instructions on the law of accomplices, including CALJIC No. 3.18, “even if erroneous,
is deemed harmless where there was ample evidence corroborating the witness's
testimony.” (People v. Arias (1996) 13 Cal.4th 92, 143; see also, People v. Sully (1991)
53 Cal.3d 1195, 1228.) The cases do not distinguish CALJIC No. 3.18 from the other

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standard instructions on accomplice testimony. (See People v. Frye, supra, 18 Cal.4th
894, 965-966; People v. Miranda (1987) 44 Cal.3d 57, 100.)
II. There Was Substantial Evidence To Support the Firearm Enhancement
Defendant contends that the evidence did not support the jury’s true finding,
pursuant to section 12022.53, subdivision (d), that defendant intentionally fired the fatal
shot. We disagree.
A. Standard of Review
When faced with a challenge to the sufficiency of the evidence, we “must review
the whole record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence . . . such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal. 3d 557,
578.)
B. Substantial Evidence Support’s the Jury’s Finding That Defendant
Intentionally Fired the Gun
Viewed in the light most favorable to the judgment, substantial evidence supports
the jury’s finding that defendant intentionally discharged the firearm. Lemon was
apparently the only witness to the shooting. Lemon told the police that when defendant
was standing next to the victim, he (Lemon) thought he heard a distinctive click coming
from the gun, as though defendant pulled the hammer back on the gun. Lemon also
stated that defendant pointed the gun directly at the victim when he demanded the
victim’s car keys from him. Lemon explained that when the victim failed to comply,
defendant angrily asked the victim if he thought he (defendant) was kidding. Defendant

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then hit the victim across the face with the gun. Although defendant claims that the gun
accidentally fired when he hit the victim across the face, the evidence showed otherwise.
The chief medical examiner from the coroner’s office testified that, judging from the
powder burn, or stippling, around the gunshot wound on the victim’s face, the gun was
shot about one foot away from the victim’s face. He further testified that if the gun had
accidentally discharged while defendant was striking the victim’s face, the bullet would
have traveled in a different direction altogether. Instead, the bullet went directly into the
victim’s right cheek.
In view of the evidence, the jury could reasonably conclude that defendant
intentionally fired the gun at the victim.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ Ward
J.
We concur:
/s/ Hollenhorst
Acting P. J.
/s/ McKinster
J.

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