 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Acevedo2/27/2002
ions].)
Here, as respondent appropriately concedes, in addition to committing error by giving CALJIC No. 2.11.5, the trial court erred in failing to sua sponte give CALJIC No. 3.18 as both Ramirez and Torres could have been determined by the jury to be accomplices. Though both potential accomplices were called by defendant, CALJIC No. 3.18, as revised by the Supreme Court in 1998, must be given sua sponte and "is applicable regardless which party called the accomplice." (People v. Guiuan (1998) 18 Cal.4th 558, 569.) Thus, instead of being instructed to view Ramirez's testimony inculpating appellant with caution, the jury was instructed not to consider why Ramirez was not being prosecuted when considering her credibility. (CALJIC Nos. 3.18, 2.11.5.)
We do not doubt that a court's erroneous failure to give an accomplice instruction coupled with the erroneous giving of the non-participant witness instruction could constitute harmless error when coupled with sufficient corroborating testimony and/or where the error is otherwise cured by argument or other instructions. As set forth below, however, the record in this case does not support the conclusion that these other factors rendered the error harmless here.
2. Corroborating Testimony
Without addressing how the trial court's failure to instruct on the accomplice testimony would affect the harmless error analysis, respondent contends that the error was harmless because "Ramirez was not the mainstay of the prosecution's case ...." We disagree. Though Ramirez was not called by the prosecution, she turned out to be a valuable prosecution witness. Ramirez unequivocally identified appellant as the shooter. However, corroborating testimony pointing to appellant as the shooter was weak and conflicting. At trial, the victim, Ramos, identified appellant as the shooter, but insisted that appellant was the passenger of the vehicle. All of the witnesses present in the car (including Ramirez) agreed that appellant was the driver of the vehicle. Further, Ramos was drunk at the time of the shooting. Jesus Sanchez testified that he and Ramos had shared more than 30 beers between approximately 3:00 p.m. and 10:00 p.m. (the time of the shooting), and Ramos had been arrested less than two hours before the shooting for driving under the influence . In addition, when asked how many people were in the car, Sanchez testified that it was too dark to "see anything." The other witness who corroborated Ramirez's identification of appellant as the shooter completely recanted her identification at trial, stating that she identified appellant as Clarissa's ex-boyfriend, but not as the shooter, and that she was ducking down at the time of the shooting and did not see who was in the car.
Further, appellant's testimony that Ramirez was the shooter was corroborated by the third person in the car, Torres. Appellant's original defense counsel also testified that when he told Ramirez appellant identified her as the shooter she did not respond. Additionally, though relied on by respondent as corroborating evidence of appellant being the shooter, the physical evidence of gunshot residue on appellant's hands was not inconsistent with appellant's defense that he was the driver, not the shooter.
Thus, the evidence corroborating Ramirez's identification of appellant as the shooter is not nearly so compelling as in People v. Williams, the case relied on by respondent. In Williams, two non-interested eyewitnesses testified unambiguously at trial corroborating the testimony that had been tainted by instructional error. (People v. Williams, supra, 16 Cal.4th at pp.179-181) Such corroboration is not present in this case.
3. Argum
Page 1 2 3 4 5 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|