P. v. Bucio CA2/6

Filed 4/25/13 P. v. Bucio CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

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publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Criminal No. B232504

(Case No. 2008046598)

Plaintiff and Respondent, (Ventura County)

v.

MARIA LISSETTE URENA BUCIO,

Defendant and Appellant.

Maria Lissette Urena Bucio (Bucio) appeals her convictions for second

degree robbery and murder and the resulting 25 year-to-life prison sentence. She

argues that the trial court erred in allowing the prosecutor to excuse an African-

American juror, in several of its evidentiary rulings, and in instructing the jury

regarding accomplices. Because Bucio's challenges do not individually or collectively

constitute reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

I. The Crimes

On a Saturday morning in mid-August 2008, Gurmohinder Singh

(Singh) walked out of the U.S. Bank in Oxnard, California. He was carrying a black

bag containing $100,000 cash that he had just withdrawn for his check-cashing

business. Jeffrey Aguilar (Aguilar) approached Singh, shot him several times, grabbed

the black bag, and fled on foot with a stream of cash trailing behind him. Singh died

minutes later on the floor of the bank's lobby.

A few days earlier, Aguilar had met with Bucio, his aunt. Bucio knew

Singh. She knew that Singh and his partners owned several check-cashing businesses.

She knew that owners of such businesses needed to withdraw large amounts of cash

(because she owned one herself). She knew that Singh banked at the U.S. Bank in

Oxnard. She knew that Aguilar was a member of the Colonia street gang. In the

garage of her home, Bucio discussed with Aguilar how to "get[] money" from an

"Arabian guy" who "owned a couple of stores."

A day or two later, Aguilar enlisted his friend and fellow Colonia gang

member, Mario Cervantes (Cervantes), to drive him to the U.S. Bank in Oxnard. They

parked facing the bank's entrance. Aguilar called Bucio, and then waited inside the

car. A half hour later, Singh's business partner arrived. Singh drove up minutes later.

Both are Indian. Uncertain which of the two Indian men was his intended victim,

Aguilar called Bucio. Bucio arrived at the bank minutes later. Bucio entered the bank

and soon thereafter walked out of the bank with Singh and his partner. As they exited,

Bucio signaled to Aguilar—through a flip of her hair and an exaggerated smile—

which man was Singh. Aguilar called Bucio three times immediately thereafter.

Bucio then informed Aguilar that the robbery would occur the next

morning—not a week later, as they had originally discussed. Aguilar arranged for

Cervantes to help him get a gun and for Aguilar's girlfriend, Christina DeLeon

(DeLeon), to be his getaway driver.

On the morning of the robbery, Bucio stayed away from the U.S. Bank

in Oxnard. But she was close by, and called both Aguilar and the bank just minutes

after the robbery.

II. The Prosecution

The grand jury indicted Bucio, Aguilar, Cervantes, DeLeon and others.

The indictment charged Bucio with second-degree robbery (Pen. Code, § 211) and

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murder (§ 187).1 It also alleged that the murder occurred in the course of a robbery

(§ 190.2, subd. (a)(17)), and that Bucio aided and abetted a felony with reckless

indifference to human life (id., at subd. (d)).

Following severance, Bucio proceeded to trial in February 2011. At the

conclusion of the seven-week trial, the jury found Bucio guilty of robbery and murder.

The jury also found that the murder occurred in the course of the robbery, but did not

find true the reckless indifference allegation.

The trial court sentenced Bucio to 25 years to life on the murder

conviction, and stayed the five-year sentence on the robbery count pursuant to section

654.

DISCUSSION

I. Jury Selection

Bucio argues that the prosecutor unconstitutionally exercised a

peremptory challenge against Juror 11, an African-American woman. (See Batson v.

Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258

(Wheeler), overruled on other grounds in Johnson v. California (2005) 545 U.S. 162,

164.) Because the trial court invited the prosecutor to justify the strike, our review is

confined to evaluating the prosecutor's reasons for dismissing that juror. (People v.

Mills (2010) 48 Cal.4th 158, 174 (Mills).) Bucio argues that the trial court's evaluation

of the prosecutor's reasons was too general to deserve deference. (People v. Silva

(2001) 25 Cal.4th 345, 385-386; People v. Lenix (2008) 44 Cal.4th 602, 627 (Lenix).)

We need not resolve this issue because Bucio's claim lacks merit even if we accord the

trial court no deference.

A. Pertinent Facts

Juror 11 is an African-American woman. In her questionnaire and

during voir dire, Juror 11 indicated that she had been racially profiled, mistreated, and

accused of transporting drugs in a "really recent" encounter with a police officer.

1

All statutory references are to the Penal Code unless otherwise stated.

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Although she stated she could be fair, she said she felt "violated" by the encounter,

which made her cry at the time and which "still bothers" her and "brings up emotion."

She never filed a complaint against the officer.

When the prosecutor sought to exercise her ninth peremptory challenge

against Juror 11, Bucio objected. The trial court found no prima facie evidence of

discrimination, but invited the prosecutor to explain her reasons for the strike. The

prosecutor offered two. First, she noted that Juror 11 was the victim of a "very recent"

incident involving a police officer who was "threatening," "aggressive" and "rude,"

and which "visibly upset" her. Second, the prosecutor stated she wanted a juror who

would "hold the People's witnesses to high standards," and did not want a juror "who

is going to give anybody a pass for misconduct, whether that be an officer, a civilian or

another individual"; the prosecutor feared Juror 11 fell into the latter camp because she

never filed a complaint against the officer. The trial court evaluated "the subjective

genuineness of the prosecutor's reasons" and found them to be "neutral, genuine and

not pretextual."

B. Analysis

Bucio challenges the trial court's finding that the prosecutor acted for

group-neutral reasons. Bucio claims the prosecutor's stated reasons are belied by: (1)

the prosecutor's decision not to strike Juror 4 who, but for race, was "almost the mirror

image" of Juror 11; (2) the prosecutor's decision not to strike Jurors 5 and 10 who, but

for race, had similar negative prior encounters with law enforcement; and (3) the

"ludicrous and pretextual" nature of the prosecutor's stated reason because no

prosecutor would want "every juror . . . to hold the People's witnesses to high

standards."

Our task is to determine whether the trial court abused its discretion in

concluding that the prosecutor did not act with "purposeful racial discrimination."

(Mills, supra, 48 Cal.4th, at pp. 173, 175.) A prosecutor's reasons need not support a

challenge for cause, and they may be trivial, arbitrary or idiosyncratic; however, they

must be race-neutral. (Id., at p. 176.) We ask whether this prosecutor actually relied

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upon discriminatory or non-discriminatory reasons. (People v. Thomas (2011) 51

Cal.4th 449, 474; Miller-El v. Dretke (2005) 545 U.S. 241, 252.)

Our inquiry into the prosecutor's subjective reasons looks to the

prosecutor's actual statements and to circumstantial evidence of her motivations.

(Lenix, supra, 44 Cal.4th, at pp. 625-627.) We can examine the facial plausibility of

any proffered reasons to see whether they "give[] rise to an inference of discriminatory

intent. [Citations.]" (Snyder v. Louisiana (2008) 552 U.S. 472, 482, 485.) We can

also test the veracity of a prosecutor's reliance on her proffered reasons by examining

whether she left on the jury other jurors who, but for race, gender or other protected

attribute, were indistinguishable from the excused juror. But we must tread carefully

with such "comparative juror analysis" because it gives little weight to "the legitimate

subjective concerns 'that go into a lawyer's decision to select certain jurors while

challenging others that appear to be similar [on the cold record].' [Citation.]" (People

v. Arias (1996) 13 Cal.4th 92 136, fn. 16, quoting People v. Johnson (1989) 47 Cal.3d

1194, 1120; Mills, supra, 48 Cal.4th at p. 177.)

Bucio's proffered comparative juror analyses do not support an inference

that the prosecutor acted with discriminatory intent. Although Juror 4 was similar in

age, marital status and educational achievement to Juror 11, only Juror 11 had a

negative prior experience with law enforcement. This is a legitimate distinction, and a

viable basis for exercising a peremptory challenge. (People v. Turner (1994) 8 Cal.4th

137, 171 (Turner).) Jurors 5 and 10 had negative past experiences with law

enforcement, but their experiences were markedly different than Juror 11's. Juror 5's

experience was far less severe than Juror 11's; he was upset with an officer who,

following a "recent" traffic accident, was more "chummy" with the other involved

driver and was uninterested in completing an accident report. The severity of Juror

10's experience was on par with Juror 11's, but significantly more remote in time; he

was arrested for refusing to leave the lobby of a police station 20 years earlier.

Because these two jurors' experiences with law enforcement did not share the same

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recency and severity as Juror 11's, the prosecutor's decision not to excuse these other

jurors does not give rise to an inference of discriminatory animus.

Bucio's challenge to the prosecutor's stated reasons is also without merit

for two reasons. First, the prosecutor's second reason—which Bucio asserts was the

only reason—is not so implausible on its face as to be pretextual. Bucio asserts that no

lawyer would rationally want jurors to hold its witnesses to high standards. But

Bucio's assertion fails to place the prosecutor's comment in the broader context of her

concern that Juror 11's willingness not to file a complaint against the officer who

mistreated her might translate into a willingness to give "anyone" (including,

ostensibly, the defendant) a similar "pass for misconduct."

Second, Bucio's argument completely ignores that the prosecutor gave

another reason for the strike—namely, Juror 11's "recent" and "traumatic" interaction

with law enforcement. Even if we were to assume that the prosecutor's concern about

Juror 11's possible willingness to overlook misconduct by others was pretextual, the

prosecutor's concern about Juror 11's negative feelings about law enforcement is

sufficient by itself to uphold the challenge. Batson and Wheeler prohibit a strike made

"solely" for discriminatory reasons. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra,

22 Cal.3d at pp. 276-277.) The courts are divided over the appropriate test to apply in

cases where a prosecutor's motives are a mix of legitimate and discriminatory reasons.

Some uphold a strike as constitutionally valid as long as the prosecutor would have

exercised the strike for the legitimate reason alone. (E.g., Wallace v. Morrison (11th

Cir. 1996) 87 F.3d 1271, 1274-1275). Others will uphold the strike only if the

prosecutor was not "motivated in substantial part by discriminatory intent . . . ." (E.g.,

Cook v. Lamarque (9th Cir. 2010) 593 F.3d 810, 814-815.) We need not decide

between the standards because the prosecutor's actions in this case are valid under

either test.

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II. Evidentiary Challenges

A. "Other Acts" Evidence

Bucio assigns error to the trial court's admission of three categories of

evidence of her "other acts": (1) Bucio's financial distress; (2) her banking practices;

and (3) her involvement in an illegal enterprise to purchase and resell stolen goods.

We review for an abuse of discretion the admission of "other acts" evidence under

Evidence Code sections 1101, subdivision (b), and 352. (People v. Foster (2010) 50

Cal.4th 1301, 1328-1329 (Foster).)

1. Pertinent Facts

In a pretrial motion, the People sought to admit evidence that (1) the

financial health of Bucio's personal accounts and her check-cashing business had

declined precipitously in the year before the robbery; (2) Bucio had started trafficking

in stolen goods with Javier Chavez (Chavez) just months immediately prior to the

robbery; and (3) Bucio had solicited Edgar Vasquez (Vasquez), Aguilar's friend and

fellow gang member, to rob Chavez soon after the robbery charge in this case.

The trial court ruled this evidence admissible as "other acts" evidence

under Evidence Code section 1101, subdivision (b). The court concluded that Bucio's

dire financial condition was "inextricably connected" with her involvement in the

stolen goods ring, and that together they were relevant or establish her motive to

commit robbery. The court also ruled that Bucio's solicitation of a second robbery was

relevant to prove her intent in the charged case and as proof of a common scheme or

plan. The court found all of this evidence to have a "substantial relevant value" and to

lack any "serious danger of undue prejudice, of confusing the issues, or of misleading

the jury." The court reserved judgment on the precise purposes for which the jury

would be able to consider the evidence.

At trial, the court admitted four categories of "other acts" evidence.

First, the court received evidence that, as of August 2008, Bucio had outstanding

personal debts of $1 million from mortgages, auto loans and credit cards; that she was

indebted to her friend George Manwani for $25,000; and that she was with increasing

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frequency cashing checks at her check-cashing business that later bounced (financial

difficulty evidence). Second, a U.S. Bank employee testified that Bucio regularly

moved money between her four accounts and her MoneyGram wire transfer account;

that she "kited" checks by depositing checks and withdrawing money against those

checks before they cleared; that she would ask for and often receive special favors and

treatment; and that she was financially "savvy" (banking practices evidence). Third,

Chavez testified that Bucio in April 2008 started advancing him money to buy stolen

goods; that Bucio recruited her friends and family to participate; that he ended up

stealing $90,000 from Bucio and nearly $300,000 from Bucio's friends and family; and

that he still owed Bucio $45,000 (stolen merchandise evidence). Fourth, the trial court

admitted evidence that, soon after the U.S. Bank robbery, Bucio invited Vasquez to

her garage and there asked him to rob a man who owed her money (ostensibly,

Chavez) and warned him not to kill Chavez so he could still repay his debts (second

robbery evidence).

The trial court instructed the jury that this evidence could be considered

to establish Bucio's motive, intent and common plan or scheme—and for no other

purpose. In closing argument, the prosecutor argued that the financial difficulty and

banking practices evidence were relevant, not to show Bucio's motive, but rather to

show that she is a savvy and manipulative person capable of manipulating Aguilar to

do her bidding.

2. Analysis

a. Financial difficulty evidence

Bucio argues that the trial court abused its discretion in admitting the

financial difficulty evidence to prove her motive to engage in the robbery.

As a general matter, "'[e]vidence of a defendant's poverty or

indebtedness, without more, is inadmissible to establish motive for robbery or

theft . . . .'" (People v. Clark (2011) 52 Cal.4th 856, 929 (Clark), italics added.) For

over a century, our Supreme Court has held that "reliance on poverty alone as evidence

of motive is deemed unfair to the defendant, and the probative value of such evidence

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is considered outweighed by the risk of prejudice. [Citation.]" (People v. Wilson

(1992) 3 Cal.4th 926, 939; People v. Kelly (1901) 132 Cal. 430, 432.) Put differently,

the link between poverty and proclivity to steal is an impermissible one that is deemed

to violate Evidence Code section 352 as a matter of law.

That impermissible link is not implicated in this case. The trial court did

not admit evidence of Bucio's "'. . . poverty or indebtedness, without more . . . ."

(Clark, supra, 52 Cal.4th at p. 929.) Instead, the financial difficulty evidence was

"inextricably connected" with the stolen merchandise evidence, and was relevant to

prove Bucio's involvement on the theory that a person defrauded in an illegal

enterprise is more likely to resort to illegal acts (e.g., robbery) than a person whose

debts arise from lawful activity because she lacks legal avenues of recourse. Because

this reasoning does not rest on the impermissible inference that poor people are more

likely to steal, it does not run afoul the Evidence Code section 352-based bar to

evidence of poverty or indebtedness to prove motive.

b. Banking practice evidence

Bucio next contends the banking practices evidence was irrelevant and

more prejudicial than probative under Evidence Code section 352. This evidence

demonstrated Bucio's level of sophistication and savvy, which was relevant to rebut

her assertions of naiveté and to establish her skill at manipulating others, including her

nephew, Aguilar. (Accord, People v. Fields (1998) 61 Cal.App.4th 1063, 1071

[evidence of defendant's sophistication with drugs admitted to prove identity]; People

v. Stewart (2004) 33 Cal.4th 425, 485 [evidence of defendant's manipulation of others

admissible in murder case to prove motive and intent to kill].) This evidence does not,

as Bucio contends, violate the rule against using indebtedness to prove motive because

it is not offered to prove motive and because many of her banking practices pre-date

her recent indebtedness. This evidence was also not unduly prejudicial because some

of Bucio's practices were characterized by witnesses as common and others as

"unusual," but no practice was ever labeled "illegal."

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c. Stolen merchandise evidence

Bucio further argues that the trial court abused its discretion under

Evidence Code sections 1101, subdivision (b), and 352, in admitting the stolen

merchandise evidence to prove her motive, her intent, and a common scheme or plan.

Her arguments lack merit.

Bucio first contends that the stolen merchandise evidence impermissibly

uses her poverty or indebtedness to prove motive. (See Clark, supra, 52 Cal.4th at p.

929.) Because, as we discuss above, the trial court admitted this evidence in

conjunction with the financial difficulty evidence, the rule and rationale of Clark are

inapplicable.

Bucio next asserts that the stolen merchandise evidence is inadmissible

to prove intent because (1) her intent is not at issue; and (2) this evidence is too

dissimilar from the charged robbery to shed any light on her intent to commit robbery.

We disagree.

Although a defendant's not guilty plea puts all elements at issue (People

v. Carpenter (1997) 15 Cal.4th 312, 379, superseded on other grounds by § 1054), the

nature of the charged acts can sometimes render "other acts" evidence cumulative and

hence inadmissible under Evidence Code section 352. (People v. Balcom (1994) 7

Cal.4th 414, 422-423 (Balcom); People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2

(Ewoldt), superseded on other grounds by Evid. Code, § 1108.) This rule comes into

play when the charged act, if done, could only be done with the requisite criminal

intent. (Balcom, supra, at p. 422 [defendant charged with a rape at gunpoint; evidence

of prior rape inadmissible to prove intent because no person using a gun could lack

intent to use force]; Bowen v. Ryan (2008) 163 Cal.App.4th 916, 925-926 [defendant

sued for assaulting patients; evidence of prior assaults inadmissible to prove intent

because no person who shoved a patient against a wall, as alleged, could lack intent to

assault].) That rule does not apply to bar evidence of intent in this case. Here, Bucio

admitted that she did certain acts, such as calling Aguilar and visiting the U.S. Bank

the night before the robbery. Because these acts are not necessarily done with criminal

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intent, and because Bucio vigorously argued that she lacked the intent to aid and abet

the robbery of Singh, Bucio's intent was very much at issue in the trial.

Nor is the stolen merchandise evidence too dissimilar to shed light on

Bucio's intent. Other acts are admissible to prove intent as long as those acts are "'. . .

sufficiently similar [to the alleged crimes] to support the inference that the defendant

"'probably harbor[ed] the same intent in each instance.' . . ." . . .' [Citation.]" (Foster,

supra, 50 Cal.4th at p. 1328, citing Ewoldt, supra, 7 Cal.4th at p. 402.) The trial court

admitted the stolen merchandise evidence in conjunction with the second robbery

evidence because the intended target of the second robbery was Chavez, her supplier

in the stolen merchandise ring. Because Bucio's solicitation of a second robbery is

relevant and admissible to show that she intended to solicit the charged robbery, the

trial court did not abuse its discretion in admitting the stolen merchandise evidence

that gives the second robbery greater probative value. In light of this theory of

relevance, it does not matter that the crimes of trafficking in stolen goods and robbery

have different intent elements in the abstract.

Bucio lastly argues that the stolen merchandise ring is too unrelated to

the charged robbery to be admissible to prove a common scheme or plan. Evidence of

other acts may be admissible as the "individual manifestation" of a "general plan" if

the other acts and charged acts have a "concurrence of common features." (Ewoldt,

supra, 7 Cal.4th, at p. 402.) Bucio's solicitation of a second robbery is highly relevant

to prove both her intent and a common scheme. As to both the charged and the

uncharged, second robbery, Bucio solicited a gang member, selected a target she

knew, and selected a target she believed had slighted her (Singh refused to buy her

stolen goods and Chavez defrauded her). As we note above, the stolen merchandise

evidence makes the second robbery evidence that much more probative.

Because the stolen merchandise evidence is relevant to prove motive,

intent and a common scheme or plan, we need not reach Bucio's further argument that

the trial court committed instructional error under People v. Swearington (1977) 71

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Cal.App.3d 935, by allowing the jury to consider this evidence for a prohibited

purpose.

B. Statements From Cervantes's Pretrial Interview

Bucio contends that the trial court should not have allowed the People to

(1) elicit statements made by Cervantes, a prosecution witness, during a January 2009

police interview; and (2) call Detective Adam Wittkins (Detective Wittkins) to testify

about when, during that interview, Cervantes was shown certain evidence consistent

with his statement. We review these evidentiary rulings for an abuse of discretion

(People v. Jablonski (2006) 37 Cal.4th 774, 805 (Jablonski)), and conclude no abuse

occurred.

1. Pertinent Facts

Cervantes first spoke with police in November 2008 and testified before

the grand jury a few weeks later. On both occasions, Cervantes lied and denied any

involvement or knowledge of Singh's robbery. Cervantes met with police again in

January 2009. By that time, Cervantes was charged with murder in this case; he

sought a deal, but was not offered one. At that meeting, Cervantes admitted his

involvement in the robbery. Cervantes met with law enforcement once again in March

2009. In July 2009, Cervantes signed a plea deal for which he received a sentence of

22 years in prison and dismissal of the greater charges that called for a life sentence.

At trial, Cervantes testified that he drove Aguilar to the U.S. Bank; that

he waited with him until Bucio "marked" Singh as the intended victim; and that he

drove Aguilar to get a gun and to pick up DeLeon so they could discuss her role as the

getaway driver. On cross-examination, Bucio elicited that Cervantes had lied and

denied any involvement in the robbery during his November 2008 interview and

before the grand jury. Bucio also suggested that the interviewing officers during the

January and March 2009 interviews were feeding Cervantes facts to flesh out his

statements.

The People called Detective Wittkins to testify about (1) the statements

Cervantes made during the January and March 2009 interviews; (2) the order in which

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the officers showed evidence to Cervantes to rebut Bucio's allegation of police

tampering. Over Bucio's objection, the trial court ruled that Cervantes's statements at

the January and March 2009 interviews were prior consistent statements. The court

reasoned that Cervantes's statements were admissible under Evidence Code section

791, subdivision (b), because those statements were made prior to the July 2009

executed plea bargain deal. The court alternatively relied on Evidence Code section

791, subdivision (a), reasoning that Cervantes's statements were inconsistent with his

November 2008 statements and that subdivision (a)'s timing requirement (namely, that

the prior consistent statement be made before the prior inconsistent statement) did not

apply when the alleged inconsistent statement is the failure to mention a fact.

Invoking Evidence Code section 356, the court allowed Detective Wittkins to testify

regarding the order in which Cervantes was shown items vis-à-vis his statements "for

the non-hearsay purpose of providing the jury with the context in which Cervantes's

statements were made."

2. Analysis

a. Cervantes's Prior Consistent Statements

A party may elicit a witness's prior, out-of-court statements that are

consistent with that witness's trial testimony if (1) the adverse party has made "an

express or implied charge" that the witness's trial testimony is "recently fabricated or is

influenced by bias or other improper motive"; and (2) the witness's prior statement

"was made before the bias, motive for fabrication, or other improper motive is alleged

to have arisen." (Evid. Code, § 791, subd. (b).) Bucio questioned Cervantes about his

July 2009 plea deal, and her cross-examination painted him as a liar. (See People v.

Noguera (1994) 4 Cal.4th 599, 630 (Noguera) ["'[t]he mere asking of questions may

raise an implied charge of an improper motive'"].) Cervantes's plea deal provided a

motive for him to fabricate his trial testimony. (People v. Gurule (2002) 28 Cal.4th

557, 620.) Because Cervantes's January and March 2009 statements were made before

the July 2009 plea deal, they were properly admitted as prior consistent statements

under Evidence Code section 791, subdivision (b). Bucio contends that Cervantes had

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additional reasons to fabricate his testimony, such as a desire to obtain a favorable plea

deal, that pre-dated his January and March 2009 interviews. These other motives do

not affect our analysis because "'. . . a prior consistent statement is admissible if it was

made before the existence of any one or more of the biases or motives that, according

to the opposing party's express or implied charge, may have influenced the witness's

testimony . . . .' [Citation]" (Noguera, supra, at p. 629, italics added; accord, People

v. Andrews (1989) 49 Cal.3d 200, 210-211 [witness's motive to lie before and after

plea deal are distinct motives].) In light of the admissibility of Cervantes's statements

under Evidence Code section 791, subdivision (b), we need not analyze their

admissibility under subdivision (a) of that section. (See People v. Mason (1991) 52

Cal.3d 909, 944 [appellate courts "review the trial court's ruling and not its

reasoning"].)

b. Order of Statements

Where one party introduces "part of a[] . . . conversation . . . in

evidence," an adverse party may inquire into "the whole on the same subject . . . ."

(Evid. Code, § 356.) In this case, Bucio elicited from Cervantes some of the

statements he made during the January and March 2009 interviews and implied that

they were the product of coaching by law enforcement. Under the plain terms of

Evidence Code section 356, the People were entitled to elicit other portions of those

conversations to rebut Bucio's accusations. (See People v. Zapien (1993) 4 Cal.4th

929, 959.) Bucio argues that she only elicited from Cervantes's testimony regarding

what he did not say during the interviews, but the record does not support this

argument; we consequently do not reach Bucio's argument that Evidence Code section

356 is irrelevant because Cervantes's "non-statements" are not "part[s] of a . . .

conversation . . . ." (Ibid.)

C. Vasquez's Prior Consistent Statements

Bucio also challenges the trial court's admission of statements Vasquez

made during his August 2009 police interview. We review this claim for an abuse of

discretion. (Jablonski, supra, 37 Cal.4th at p. 805.) There was no abuse.

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1. Relevant Facts

Police interviewed Vasquez in early November 2008 and he testified

before the grand jury later that month; he denied any knowledge of the charged

robbery. Vasquez voluntarily met with police again in August 2009, at which time he

admitted to knowing far more.

At trial, Vasquez testified that he had been present when Bucio and

Aguilar discussed the robbery in Bucio's garage. In that conversation, he overheard

Bucio refer to the victim as driving "a nice car." Vasquez also testified that Bucio had,

after Aguilar's arrest, solicited Vasquez to rob a second man who owed her money and

whom he "believe[d]" lived in "Oxnard." Vasquez noted that he was testifying under a

grant of immunity. On cross-examination, Bucio elicited that Vasquez had attempted

to curry favor with the police during the August 2009 interview by offering to help

implicate drug dealers and by asking for help getting a job. Bucio also brought out

that Vasquez had, since the August 2009 interview, violated his probation and failed to

appear in court.

The People called Detective Michael Young (Detective Young) to testify

to statements Vasquez made during the August 2009 interview. Over Bucio's

objection, the trial court ruled that these statements were admissible as prior consistent

statements because "the cross and the theory of the defense in this case" accused

Vasquez of fabricating his testimony. Detective Young then recounted Vasquez's prior

statements, including that Vasquez overheard Bucio and Aguilar plan the robbery of a

guy who drove "a nice, white SUV" and that the intended victim of the second robbery

owed Bucio money and lived in Camarillo.

2. Analysis

As we note above, a trial court may admit a witness's prior consistent

statements if the witness's trial testimony is attacked as tainted by bias or other motive

to lie, and if the prior statements were made before the alleged taint arose. (Evid.

Code, § 791, subd. (b).) Bucio argues that Vasquez had a motive to lie at the time of

the August 2009 interview, so his statements from that interview do not pre-date his

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motive to lie. This argument ignores the rule that prior consistent statements are

admissible as long as any one of the witness's motives to lie arose after the prior

statement. (Noguera, supra, 4 Cal.4th at p. 629.) At the time of the August 2009

interview, Vasquez had not yet been granted immunity for his testimony and did not

yet face sanctions for violating his probation or failing to appear. Statements Vasquez

made before either of these additional motives to lie arose are accordingly admissible

as prior consistent statements. (See People v. Belmontes (1988) 45 Cal.3d 744, 778,

overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390) ["An immunity

agreement has been recognized as a motive for bias within the meaning of Evidence

Code section 791"].)

Bucio argues that Vasquez's statements that Chavez owed her money and

that Singh drove a "nice, white SUV" are inadmissible as prior consistent statements

because they are neither consistent nor inconsistent with Vasquez's trial testimony.

We disagree. Both at trial and at the August 2009 interview, Vasquez said Chavez

owed Bucio money; Vasquez's statement at trial that Singh drove a "nice car" is

similarly consistent.

Bucio finally argues that Vasquez's prior statement that Chavez lived in

Camarillo is a prior inconsistent statement—not a prior consistent statement—because

Vasquez testified at trial that Chavez lived "in Oxnard, I believe." Given Vasquez's

uncertainty at trial, Vasquez's two statements are not necessarily inconsistent. In any

event, it is not reasonably probable that Vasquez's uncertainty regarding which of two

adjacent cities Chavez lived in would have affected the outcome of Bucio's trial.

(People v. Watson (1956) 46 Cal.2d 818, 837.) Any error in admitting this particular

statement by Vasquez was accordingly not prejudicial.

III. Instructional Challenge

Bucio argues that the trial court erred in not instructing the jury that

Vasquez was, as a matter of law, an accomplice whose testimony could not support a

guilty verdict without further corroboration. We review this instructional issue de

16

novo (People v. Mathson (2012) 210 Cal.App.4th 1297, 1311) and conclude that the

trial court did not err.

A. Pertinent Facts

Vasquez testified that he overheard Bucio and Aguilar discuss the

charged robbery, but did not participate in that discussion. Vasquez asked Aguilar if

he could be involved, but Aguilar refused. Vasquez also stated that "we" cut a chain

on a fence near the U.S. Bank to make the getaway easier. Vasquez further

acknowledged that, after the robbery, he cut Aguilar's face with a knife to change

Aguilar's appearance; that he accompanied Aguilar to get a tattoo; and that he shared

in $34,000 of the proceedings.

Based on this evidence, the trial court did not find Vasquez to be an

accomplice as a matter of law. Bucio's counsel did not disagree with this conclusion.

Accordingly, the trial court left it to the jury to decide whether Vasquez qualified as an

"accomplice" whose testimony required corroboration.

B. Analysis

A criminal conviction cannot stand if it rests solely on the testimony of

an "accomplice." (§ 1111.) Consequently, if substantial evidence indicates that a

witness is an accomplice, the trial court must instruct the jury to determine whether the

witness is an accomplice and, if so, not to return a guilty verdict unless that

accomplice's testimony is corroborated. (People v. Tobias (2001) 25 Cal.4th 327, 331

(Tobias).) A trial court may take the issue away from the jury and instruct the jury that

a witness is an accomplice as a matter of law only if the "clear and undisputed" facts

compel or dictate that conclusion. (People v. Williams (2008) 43 Cal.4th 584, 636;

People v. Avila (2006) 38 Cal.4th 491, 565.)

An "accomplice" is a person who can be charged with the same crimes

as the defendant. (Tobias, supra, 25 Cal.4th at p. 331). It includes persons who aid

and abet the charged crimes. (People v. Tewksbury (1976) 15 Cal.3d 953, 960.) To be

liable as an aider and abettor, a person must (1) do something to aid, promote, or

encourage the charged crime; (2) while knowing of the perpetrator's unlawful purpose;

17

and (3) while intending to encourage the crime. (People v. Beeman (1984) 35 Cal.3d

547, 561.)

The trial court did not err in concluding that Vasquez did not aid

and abet the charge crimes as a matter of law. It is not enough that Vasquez overheard

Bucio and Aguilar plan the robbery. (See People v. Nguyen (1993) 21 Cal.App.4th

518, 529-530 ["[m]ere presence at the scene of a crime is not sufficient to constitute

aiding and abetting"]; People v. Johnson (1973) 33 Cal.App.3d 9, 22 [overhearing

others plotting a crime does not render one an accomplice as a matter of law].) Nor is

it enough that Vasquez assisted Aguilar after the robbery. (E.g., People v. Boyer

(2006) 38 Cal.4th 412, 467 (Boyer), superseded on other grounds by § 29.4 [an

"accessory" is not an "accomplice"].) The only evidence that might support a ruling

that Vasquez was an accomplice is Vasquez's statement that "we" cut a chain prior to

the robbery. But Vasquez did not specify who cut the chain, and Vasquez's direct

participation would be at odds with Aguilar's earlier refusal to let Vasquez participate.

This falls short of the clear and undisputed evidence necessary to compel the

conclusion that Vasquez was an accomplice as a matter of law.

Even if the trial court erred, any error was harmless in light of the

corroboration of Vasquez's testimony. (Boyer, supra, 38 Cal.4th at p. 467.)

Corroboration need only be "slight" and "tend to implicate the defendant." (Ibid.) In

this case, Bucio's involvement in the charged crimes is corroborated by the sequence

of events at the U.S. Bank the night before the robbery, which are further corroborated

by phone records and video footage. Bucio's involvement is also buttressed by her

solicitation of Vasquez to commit a second robbery, which is further corroborated by

the record of calls between Bucio and Vasquez and by the fact that Bucio's phone

number was saved on Vasquez's cell phone.

IV. Remaining Claims

Bucio lastly contends that her counsel was ineffective and that the

cumulative effect of the above-asserted errors was prejudicial. Because we reject the

merits of Bucio's claims, her counsel's performance with respect to those claims was

18

not prejudicial. (Strickland v. Washington (1984) 466 U.S. 668.) Furthermore, we

find no merit to her claims, so there can be no cumulative error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

HOFFSTADT, J.*

We concur:

GILBERT, P. J.

PERREN, J.

*

(Judge of the Superior Court of Los Angeles County, assigned by the

Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)

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Kevin G. DeNoce, Judge

Superior Court County of Ventura

______________________________

Quin Denvir for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C.

Johnson, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney

General, for Plaintiff and Respondent.