PEOPLE v. TORKELSON No. D055104.

THE PEOPLE, Plaintiff and Respondent, v. JAMES DAVID TORKELSON, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.
Filed February 10, 2011.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HUFFMAN, Acting P. J.

A jury convicted James David Torkelson of two counts of first degree murder (Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(17)(A); counts 1 & 2), attempted murder (§§ 187, subd. (a), 664; count 3), and carjacking (§ 215; count 4). The jury also found true a robbery felony-murder special circumstance as to both counts 1 and 2 (§ 190.2, subd. (a)(17)(A).) The trial court sentenced Torkelson to two consecutive terms of life in prison without the possibility of parole for the murders, a concurrent seven-year midterm for the attempted murder, a five-year concurrent midterm for the carjacking, and ordered the sentence to run consecutive to a prison term Torkelson was already serving in the state of Oregon.

Torkelson appeals, contending the trial court committed numerous prejudicial evidentiary and instructional errors that require reversal of all his convictions, the prosecutor improperly vouched for the credibility of a key witness, and there was insufficient evidence to support his conviction for attempted murder. In regard to his evidentiary issues, Torkelson specifically asserts the court erred in admitting evidence of his affiliation with racist organizations, his prior criminality and his incarceration; in admitting the extrajudicial statements of Jeffrey Young who had participated in the current crimes; and in admitting evidence that he, together with Young, had attempted to cash forged business checks shortly before these crimes. Torkelson also claims the court erred in refusing to instruct that Young, who did not testify at trial, was an accomplice as a matter of law; in failing to instruct on accomplice testimony with regard to Jason Getscher, a testifying witness who knew about the crimes; and in permitting the prosecutor to improperly vouch that accomplice David Raynoha's testimony was truthful. Torkelson argues that the cumulative effect of these errors denied him his constitutional right to a fair trial.

As we explain, because we find no prejudicial or cumulative error that denied Torkelson a fair trial, and find sufficient evidence supports the count 3 conviction of attempted murder, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning of July 18, 1999, the police were called to the Five Star Park Shuttle and Fly (Five Star) and the Shuttle Park and Ride (Shuttle) parking lots located across Pacific Highway from each other to investigate a reported armed robbery and carjacking. Upon arriving at Five Star, San Diego Police Officers discovered in the business's office trailer an open but empty safe, telephone and computer cords severed, and the bodies of Teresa Perez, a ticket booth employee, and Jack Reynolds, the night manager, lying face down on the floor with two bullet wounds to the back of their heads. Officers responding to Shuttle discovered that a customer at that business, James Gagarin, had been carjacked at gunpoint by two men who had run from the Five Star lot and that a man named Daniel Maman had been shot at by several men at Five Star as he pulled up in his van to pick up his girlfriend Perez from work.

The preliminary investigation revealed that Five Star had just opened a long term airport parking facility with manned exit toll booths on Pacific Highway at Sassafras Street in San Diego on July 1, 1999. Although the enclosed facility had video security cameras installed throughout the lot, they were not yet equipped with video recorders and Five Star had contracted with City Events, a private security company, to provide unarmed security guards "for presence" at the parking facility.

In interviewing the Five Star and City Events employees working near or at the time of the crimes, as well as the owners and managers of the respective businesses, the police learned that Torkelson's status as a security guard for City Events, who was working at the lot that night, was questionable. Although Torkelson had started work earlier in July as a security guard for City Events and was assigned to work the night shift at Five Star from midnight until 7 a.m., he was consistently late for his shift and had completely failed to show up at the lot to work on the night of July 11-12, 1999. Because Torkelson had also failed to contact his City Events supervisor about missing his assigned shift in accordance with the company's policy, which he had been made aware of during his orientation, he was automatically terminated.

However, at about 11:30 p.m. on July 17, 1999, Torkelson, dressed in his security guard uniform, drove into the Five Star lot and parked behind the business office. This surprised Kendrick Bowman, the ticket booth employee who had just relieved Perez from her evening shift, Pelvic Reid, the security guard who was finishing his shift at the lot, and another booth cashier, who was also leaving the lot after finishing her shift, as they thought it was odd Torkelson was so early and they had heard he had been fired for missing a shift earlier that week. When Reid asked Torkelson whether he had talked with their City Events supervisor, Torkelson assured him everything was fine and it was okay for him to go home. Torkelson also told David Bond, a replacement security guard assigned by City Events to work the midnight shift that had formerly been assigned to Torkelson, it was okay for him to go home because he would be working that shift. After Reid, Bond and the other booth cashier had left the lot, Torkelson had grabbed a clipboard with paperwork from Bowman's booth and had walked toward the far end of the lot to start taking inventory of the cars parked there. Bowman thought this was strange as Torkelson usually began his inventory work on his side of the lot closer to the exit booths.

At about 12:30 a.m., after a shuttle driver left the lot to go to the airport and while Reynolds and Perez were in the business trailer counting the money and receipts from the booths at the end of the previous shift, someone called out to Bowman as he paced back and forth near his booth to "get over here." When Bowman turned, he saw a white male with reddish hair and a nylon stocking over his face approaching him with his gun drawn. Bowman complied with the man's order at gunpoint to get inside the booth and lie face down on its floor. As he was doing so, Bowman pressed the button on his handheld radio to try to get Torkelson's attention on the security guard's handheld radio that something was wrong, but Torkelson did not respond. The gunman then sat in the booth with his foot on Bowman's back and cleaned out the booth's cash register of about $100. When Bowman asked the man why he was not leaving after taking the money, the man said he was waiting for a ride and began pacing outside the booth.

At about that same time, Bowman heard the squeaking of the restroom door next to the office trailer and heard the gunman order someone, whom he thought was probably Teresa, to get inside the trailer. Shortly thereafter, he heard a gun shot followed by several others. Bowman then heard a series of gun shots, between five and seven, and heard the gunman near him start running. As soon as he did so, Bowman got on his knees and saw the man running toward Pacific Highway meet up with two men running from the Shuttle exit area near the business trailer. As the three men continued to run, Bowman saw Maman, who was driving up in his van to pick up Perez, make a U-turn and leave as he was being shot at by the robbers as they fled from Five Star.

Bowman immediately called 911 and reported the incident, telling the police the robbers were White with stockings or masks on their faces and all were shooting guns everywhere. While he was on the phone, Torkelson ran up to him yelling that there were "two down" and a "187," which Bowman then relayed to the police operator. Bowman, who also heard additional gunshots being fired, handed Torkelson the phone to talk with the 911 operator while he went inside the business office. Torkelson told the operator he had not seen anything, but that there were "two people down, shots in the head." After going into the office, Bowman confirmed that Reynolds and Perez had both been shot in the head and were dead.

At the exact same time, the police received a call from Michael Mackey, an attendant who was working the graveyard shift at Shuttle, who reported that there had been a robbery at Five Star's lot located across the street from him and the "robbers ran across the street. They had firearms. They were shooting and they ran over here and stole my customer's car. They just left the scene." Although Mackey could not give a description of the three men, he said they were all wearing dark clothing and white nylons over their faces. Gagarin, whose car had been taken, then got on the line and told the police that after hearing what he and Mackey originally thought were firecrackers being set off at Five Star as he was cleaning his windows while waiting for his car to warm up from being parked at Shuttle during a business trip, they realized it was gunshots they were hearing. They then saw a van pull out of the lot and almost get hit and one man run up the street on Sassafras, going up the hill, before two other men ran across the street to Shuttle, pointed a gun at Gagarin, hopped in his car and drove off. Gagarin could not describe the man who took his car because when he saw the gun, he turned his back, held up his hands and said, "It's yours man." Gagarin, however, was pretty sure the two men who took his car were White even though they had white nylons on their faces and that both wore dark clothing and had guns.

When Mackey got back on the phone with dispatch, he provided additional information about the suspects, stating the closest one to him had a ".45" pointed at both him and Gagarin, was a White male about 25 to 27 years old and approximately 5'5" tall, while his accomplice was slightly taller at about 5'9" tall. Mackey believed the shorter male was the person who drove Gagarin's car away. As Mackey and Gagarin were on the phone with the 911 operator, Maman drove up to them in his van and told them, "[t]hey were shooting at me."

When the police arrived at Shuttle, Mackey, Gagarin and Maman were all separately interviewed and gave fuller interviews over the next several days regarding the incidents. Both Mackey and Gagarin consistently described looking over to Five Star when they heard gunshots or firework-like noises, seeing Maman's dark green van pull out of the driveway and almost get hit by other vehicles, and then hearing more gunshots before seeing three individuals firing guns as they ran from the area of Five Star's business trailer. Both also consistently described their assailants as a shorter gunman, about 5'5" or a little taller, who had pointed a semiautomatic gun at Mackey's face, and a taller, thinner gunman, about 5'10" or so, who pointed his gun at Gagarin. Gagarin had additionally observed the two gunmen who took his car pick up the third gunman who had run up Sassafras Street before continuing to drive away.

Maman told the police that when he arrived at Five Star at 11:45 p.m. to pick up Perez from work on July 17, 1999, she was still in her uniform and needed to stay longer for her shift change. When he later returned to pick her up at about 12:30 a.m., he drove into the lot, and as he was making a U-turn near the business trailer, he heard gunshots coming toward him. Looking over to where the shots were coming from, he saw two men running along the fence by the trailer and one of them was pointing a gun at him. When the man closest to him fired a few shots from a small revolver at his van, Maman quickly turned around, drove onto Pacific Highway and sped away. Confused and frightened, Maman drove several blocks before turning and driving back toward Five Star. At that time, he was flagged down at the corner of Sassafras Street and Pacific Highway by a man near Shuttle who asked him about a carjacking and a robbery. Maman told the police that the man shooting at him was a light skinned or White man with a stocking on his face who was about 5'7" tall and weighed about 165-170 pounds.

Meanwhile, back at Five Star, the lot had been secured by arriving police officers and the homicide team and evidence technicians had been called. During the course of their investigation, they found that the safe had been opened with no signs of forced entry and that based upon the position of the victims, Reynolds and Perez were shot in the back of their heads while lying on the ground with no indication of any struggle or resistance on their part. In addition to taking photographs and dusting for fingerprints, the police and technicians also recovered casings and bullets at the Five Star crime scene from three different guns. Forensic testing revealed that those guns were a nine-millimeter Glock semiautomatic handgun, a .38/.357 magnum Rossi revolver, and a nine-millimeter Tanfoglio semiautomatic handgun, and that the revolver was used to kill Perez and the Glock was used to kill Reynolds.

Officers on the scene further found that one of the windows of Perez's car parked near the office trailer had been shot out by a nine-millimeter projectile and found that her car key was jammed upside down part way in the ignition, making it impossible to start the car. On the front passenger seat of Perez's car they found a bank deposit bag belonging to Five Star, which contained $1,512 in cash, and a Stater Brother's grocery bag containing a roll of duct tape. Evidence technicians found a reddish-blond hair with a root stuck to the tape, which they secured for testing and also lifted footprints for testing from inside the office trailer. It was determined that the robbers took about $1,900 from the Five Star lot.

Gagarin's car was later located abandoned in a commercial business parking lot close to Interstate 5, about a mile from the Five Star lot. Inside the car, officers found between the driver's seat and the car door a Glock semiautomatic handgun magazine loaded with cartridges. Technicians found glove prints on both Gagarin's and Perez's cars.

San Diego Police Detective Stephen McDonald, who was assigned the case, was at the scene for an hour an a half that early morning of the crimes, and after reviewing the evidence collected and talking with various witnesses, including the management and owners of Five Star as well as City Events, suspected that the robbery and murder were an "inside job." McDonald and other police investigators specifically suspected Torkelson's involvement in light of the facts that he was not supposed to be working at the Five Star lot at the time of the crimes and that other employees described him as acting nervous, excited or hyper that night. However, because the management of City Events was uncertain whether Torkelson had gotten the message that he was fired and none of the physical evidence recovered at the scene linked him to the crimes, the police were unable to develop any concrete evidence to arrest Torkelson at that time. At some point, however, McDonald put Torkelson under surveillance.

In the days following the crimes, the police additionally learned that two of Five Star's handheld radios were missing from the lot as well as the inventory list Torkelson had been working on at the time of the incidents. In exploring Torkelson's employment with City Events, the police discovered from his recent application for a security guard position that he had disclosed a juvenile record for receiving stolen property and had listed as his contact information a telephone number for a Paula Daleo. Although Torkelson's state guard license had not yet been issued, City Events' management had found nothing in his juvenile record of concern to prevent it from hiring him and told the police that Daleo had given Torkelson a good recommendation when its receptionist had called to check on his character.

When questioned, the receptionist at City Events told the police that Torkelson had showed up at the office on July 19, 1999, two days after the crimes at Five Star, requesting his final paycheck. When she explained that he needed to return his uniform and equipment that had been issued, he appeared agitated and frustrated, saying he did not have them because they were in Arizona. He then left and did not return again for his check. Nor did he ever return his uniform and equipment

On July 28, 1999, McDonald interviewed Daleo, learning that was she was Torkelson's girlfriend or fiancé, that he had lived with her and her family for about a year and that he had come home from work upset and crying after the incident at Five Star on July 17-18, 1999. Daleo told McDonald that Torkelson was currently in Arizona.

Despite attempts to develop leads to solve the robbery/double homicide/carjacking crimes by sending out crime stopper's reenactments to the public and teletypes to other law enforcement agencies, several years went by before McDonald had a break in the case. In July 2002, after discovering that Torkelson was in custody out of state, McDonald recontacted Daleo and learned that she had some information about the Five Star crimes. Daleo, who had broken up with Torkelson in January or February of 2000 and had since that time learned about his involvement as well as others in those crimes, told McDonald that in addition to Torkelson, those people were a 5'5" or 5'6" tall man named Jeff, who Torkelson called "Little Jeff," and who had a unique tattoo; a man named David, who went by the name of "White Wolfe or Wolf;" and a tall man with long hair from Arizona. Daleo even drew a picture of Little Jeff's tattoo for McDonald.

After conferring with other law enforcement officers with this new information, McDonald was able to determine that Little Jeff was a man named Jeffery Young, who had had contact with the police in Carlsbad, California, and resided there part time, and that Wolfe or White Wolfe was a man named David Raynoha who had had contact with the FBI. When McDonald then showed Daleo photographs of Young and Raynoha, she identified them as two of the men involved with Torkelson in the Five Star crimes.

Through his renewed contact with Daleo, McDonald also learned that Torkelson had stayed in Arizona at the home of a man named Jason Getscher, whose nickname was "Tiger," around the time of the Five Star crimes. Based on that information, McDonald went to Arizona in September 2002 and, with the permission of his counsel and the Arizona prosecutor, interviewed Getscher, who was then in custody for some check fraud cases and probation violation. Although Getscher did not have much information about the details of the Five Star crimes, he eventually provided McDonald with the identities of the people he believed were involved in those crimes, including Young, Torkelson, Max Anderson and Wolfe, whom Torkelson referred to as his cousin. Getscher also told McDonald that some of the planning for the Five Star crimes had taken place at his Arizona home, and that he had overheard Torkelson suggest robbing places where he had worked as a security guard.

In an attempt to determine whether Getscher was telling him the truth as to certain facts about each of the participants of the Five Star crimes, McDonald confirmed through CHP reports that Getscher had been in a freeway accident near Pomona, California while he and Young were driving from Arizona to California with a trailer to help move Torkelson to Arizona on July 24, 1999; that Torkelson and Young had tried to cash stolen checks from Cycle Bob's Scooter Shop in Arizona on July 12, 1999; that Anderson had been involved in armed robberies in Arizona of a Mr. T's Liquor Shop in June 1999 and a home invasion in October 1999; and that Getscher had served time in custody in Arizona with both Young and Anderson. McDonald then enlisted Getscher's assistance in placing several pretextual calls to Young, in an effort to get him to talk about the crimes.

During the course of the recorded calls, one in October 2002 and the other in November 2002, Getscher, among other things, asked questions of Young passed to him by McDonald, including suggesting that he was planning a robbery in Oregon and wanted Young's help, but first wanted him to explain why the San Diego robbery had gone wrong so that there would be no repeat botched performances. Young responded that he had been nervous, that the robbery was poorly planned, and that the participants had forgotten to bring some equipment with them to tie up their victims. He admitted that he had panicked as things unraveled, that he had fired the first shots, killing the woman (Perez), and that Anderson had shot the man (Reynolds). Young also explained that he and the others had shot at the van because Maman had seen them running out of Five Star's business trailer. He further related that their initially chosen getaway car, the one belonging to Perez, did not work out because the key did not fit properly into the ignition to enable them to start the car. In light of the information obtained from Getscher and the phone calls to Young, McDonald obtained an arrest warrant for Young, who was finally taken into custody in March 2003 and charged in this case.

In his search for Raynoha, McDonald contacted Raynoha's various family members, who in turn contacted Raynoha, who eventually called the detective from Indiana in late 2002. Raynoha, who voluntarily spoke with McDonald about the Five Star crimes over the course of several calls in January 2003, was finally arrested in April 2003 in Michigan, and brought back to California to face charges in this case.

Meanwhile, District Attorney Investigator Robert Baker, who had been assigned to work with the police on the cold homicide case in January 2003, talked with Heather Stanley, Raynoha's former girlfriend at the time of the Five Star crimes who had been located through information obtained from Daleo and Raynoha, and also began following various leads to locate Anderson, ultimately doing so in November of 2003. Through surveillance and motor vehicle registration checks, Anderson was found in Claypool, Arizona, where Baker, along with other law enforcement officers, eventually covertly obtained a DNA sample from Anderson off of a cigarette and drinking glass he had used at a casino there. When the test results showed that Anderson's mitochondrial (mt)DNA profile matched the mtDNA from the hair found at the crime scene, Baker enlisted the assistance of the Arizona authorities to serve warrants for Anderson's arrest and to search his house based on various 1999 Arizona crimes. Baker observed the May 2005 arrest of Anderson and the search of his home, obtaining from the Arizona police, blue coveralls, a pair of boots with a waffle style sole pattern, leather and cloth gloves, a photo album containing pictures of Anderson and his wife or girlfriend together with Raynoha and his wife, and an address book containing phone numbers for Getscher and various members of his family as well as for Wolfe or Raynoha. Forensic testing revealed that Anderson's boots matched some prints found inside the trailer at the scene of the Five Star crimes.

On September 16, 2005, a felony complaint for the extradition of Anderson from Arizona and Torkelson from Oregon where he had been found in custody was filed, charging each with the murders of Perez and Reynolds, the attempted murder of Maman, and the carjacking from Gagarin. After numerous pretrial proceedings, Anderson entered a plea and Torkelson proceeded to trial separately.2

The Prosecution Case

In addition to the above evidence being admitted in the prosecution case at trial,3 including the playing of both 911 tapes and Young's recorded conversations with Getscher, the following evidence was presented.

Daleo testified about her relationship with Torkelson, the people she met through him and her eventual gaining of information regarding the Five Star crimes. After meeting Torkelson, who was about four years older than her, at a party in 1998, and dating for several months, her parents allowed him to move in with her in their home where he lived for nearly a year before the crimes. During that time, Daleo learned that Torkelson had served time in a juvenile facility with Raynoha, whom she knew as Wolfe and Torkelson's cousin, and had met him as well as Young, whom she knew as Little Jeff, at White power movement functions that she had attended with Torkelson, usually in Anaheim and Riverside. Over the course of the year, Daleo gradually became fearful of Torkelson who controlled their relationship, often verbally abusing her, lying to her and cheating on her.

Regarding the time close to the Five Star crimes, Daleo remembered that Torkelson had gone to Arizona on July 11, 1999, with Young to visit a friend of Young's, whom Daleo only knew as Tiger (Getscher). The next day she called Getscher's house to talk with Torkelson to tell him that City Events was looking for him because he had missed his shift at the Five Star lot. Although Torkelson said he would take care of it, City Events continued to call Daleo's home to try to reach him for several days. When Torkelson finally returned from Arizona on the evening of July 16, 1999, he made a telephone call to Raynoha's residence in Lake Elsinore, California. The next day, Torkelson made several phone calls before leaving Daleo's house for awhile and later returning with Raynoha, Young and someone from Arizona, who was tall, thin and White, that Daleo did not know.4 After talking privately with Torkelson on the Daleo patio for some time, the three men left.

Daleo remembered that later that evening, as Torkelson was getting ready for work as a security guard at the Five Star lot, he asked if he could borrow her father's Toyota 4-Runner that night because there was something wrong with his car. When Torkelson returned from work the next morning before his shift was to end, he appeared dazed and shaken as he told her about the murders at the lot. Several days later, Torkelson told her he was moving to Arizona and would be staying with Getscher until he was established and could have her join him there. Getscher and Young helped him move, taking some of Daleo's furniture and her dog. Before he left for Arizona, Torkelson instructed Daleo not to talk to the police, explaining that they would try to "pin" the crimes on him. He told her to just "play stupid," and not say anything.

When McDonald interviewed her shortly after Torkelson had left for Arizona, it was easy to follow Torkelson's command because Daleo did not know anything about his involvement at that time. Daleo then called Torkelson at Getscher's residence to tell him the police were looking for him.

A few weeks later, Torkelson returned to San Diego with only Daleo's dog and again lived with her at her family home. In September 1999, Daleo and her father traveled to Arizona to pay Getscher the money Torkelson owed him for rent and other expenses so that they could pick up Daleo's furniture that Torkelson had left there. Daleo noticed that since Torkelson had returned to her home after Arizona, he suddenly had some money, lots of small denomination bills, although he was not working, which he kept in a small box stashed in some bushes in the front yard of her home. Torkelson continued to live with her until they broke up in early 2000.

After their breakup, Daleo became close friends with Raynoha's ex-girlfriend, Heather Stanley, who eventually confided in her some things she "needed to know" about the Five Star incident. Then, in June of 2000, Daleo and Stanley attended a party that Young hosted, during which Daleo overheard Young talking about the Five Star robbery/murders and someone suggesting that Young was trigger happy, which he denied. Daleo also heard someone say that Torkelson had planned the robbery at the place he was working, that he was supposed to be at the far end of the parking lot while it was taking place, and that a car had to be "ditched."

Although Daleo had now learned much more about the crimes than she knew when McDonald interviewed her in July 1999, she did not come forward with the information because she did not feel safe to do so because of Torkelson's involvement with the Aryan Nation. Daleo feared that she and her family would face repercussions from the "skinheads" if she related to law enforcement what she had learned about the Five Star crimes at Young's party and from Stanley. Only after McDonald contacted her in 2002 and informed her that Torkelson was in custody did Daleo feel secure enough to tell him the information she had learned from the 2000 party and Stanley.

In subsequent interviews with McDonald, Daleo told him about the men who came to her house on July 17, 1999 and the box of money Torkelson had after the incident; identified Raynoha, Getscher and Anderson from photographs; and described and drew a picture of Young's unique tattoos. Daleo gave McDonald the box. McDonald asked about a handheld radio that Torkelson had used for work. Daleo said she found the radio hidden in an entertainment center behind the television set in her home when he moved out. She eventually threw the radio away.

Daleo's parents also testified in the prosecution case, confirming much of what Daleo had related regarding her relationship with Torkelson and his borrowing of Daleo's father's 4-Runner truck the night of the crimes to go to work as a security guard. Daleo's parents, who were separately interviewed by the police with regard to this case in January 2003, noted that while he lived at their house Torkelson's friends were mainly "skinhead" types and that he had great influence over their daughter and her conduct. Daleo's mother confirmed that both she and her daughter had been fearful of coming forward to talk with police about this case.

Stanley, who was also contacted by the police in 2003, explained that she had finally decided to come forward to testify because she did not live in California anymore, she was no longer a skinhead, she had a better life and she felt that the victims' families needed closure. At the time of the crimes, Stanley was living in Lake Elsinore with Raynoha, whom she had met through Young's girlfriend, and she knew Torkelson through Aryan Nation meetings and his friendship with Raynoha. Because Stanley knew that Raynoha was having financial problems in July 1999, she believed he and Torkelson were planning a robbery based on a telephone conversation around July 17th that she overheard between the men. Specifically, Stanley heard that Raynoha was going to meet Torkelson at Daleo's residence at a certain time so they could go together to Torkelson's workplace and that Torkelson should "[b]e careful what [he said] because [Daleo] has a big mouth." After the phone call, Raynoha left and when he returned home early the next morning between 2 a.m. and 5 a.m., he woke Stanley up. As he sat on their bed, visibly nervous and upset, with a gun and some money, Raynoha told her that he had gone with Torkelson, Young and another man to the parking lot where Torkelson worked and had been in charge of the toll booth while Young and the other man went inside the trailer where money was being counted. Raynoha told Stanley that he then heard gunshots and saw Young and the other man come running out of the trailer firing their guns. After telling the man in the booth to stay down, Raynoha ran with the others while firing his gun, got into a car that they could not start, dropped some money and as they were running again, carjacked somebody to get away. Raynoha ultimately told Stanley that Young had gotten nervous and had accidently shot somebody.

Several days later, Torkelson came to Raynoha's house and brought some newspaper clippings Raynoha had requested about the incident because the Lake Elsinore news media did not cover it. During the visit, Stanley overheard the men discussing the robbery and how "it wasn't supposed to happen the way that it did." Stanley thought that Torkelson's attitude at that time was "arrogant." Within a week, Stanley broke up with Raynoha and moved out of his home. Afterwards, she developed a friendship with Daleo and at some later point after Daleo and Torkelson had broken up, Stanley told Daleo what she knew about the crimes. Stanley also had attended a get together at Young's with Daleo in June 2000, at which time Young told Stanley to "keep [her] mouth shut," and she had no business telling his girlfriend about what had happened during the Five Star incident.

After testifying about his lengthy criminal background, including his 18 to 20 years in custody mainly for theft-related offenses, Getscher testified about Torkelson's and Young's visit in Arizona with him in July 1999, explaining that he met Torkelson through Young whom he had become good friends with when they spent time in prison in Arizona. During their stay, Getscher and Young introduced Torkelson to Anderson, who had also served time in prison with Getscher and Young.

Getscher related that while the three men stayed at his house, Anderson broke into a local motorcycle shop and stole payroll checks, which Torkelson and Young then tried to cash at a local bank on July 12, 1999. After they were unsuccessful in doing so, Getscher overheard the three planning a robbery, with Torkelson suggesting they could rob the place where he worked as a security guard because he was familiar with the facility's operations and how much money would be available. Getscher, who denied any involvement in the planning of the crime, believed that Anderson indicated that he would provide the firearms for the robbery.

Realizing the criminal nature of what the three men were discussing, Getscher told them to take their conversations outside of his home and later tried to warn and dissuade both Young and Anderson from participating in any robbery scheme with Torkelson. Getscher did not hear any of the specifics of the group's plans discussed outside his home. On July 16, 1999, the three men left Getscher's home for San Diego.

A few nights later, Anderson and Young returned to Getscher's house and there was some discussion about what happened in San Diego. Anderson had with him a P-9 Ruger and a couple of revolvers, a .357 revolver and a .44 revolver, one of which he had provided to Young. Young's hand was hurt and he was shaken up, saying, "It's all bad. It's just all bad." When Getscher later asked Young why he was tying his boots with red laces, which is considered a badge of honor for skinheads who have shed the blood of the "enemy," Young said he had earned them by killing a Mexican.

Getscher then testified about his drive to California with Young several days later, about their car accident in Pomona, and about picking Torkelson up in San Diego and helping him move to Arizona. Getscher confirmed that Torkelson shortly wore out his welcome, moving back to San Diego without Daleo's belongings, and that Daleo and her father later came to Arizona to pick those items up after paying Getscher money that Torkelson owed him for rent and utilities.

After Getscher explained his lack of contact with Anderson, Young and Torkelson since late 1999 or 2000, his two telephone calls with Raynoha to find a missing gun, his move to Oregon and back, his continuing commission of bank crimes that eventually led to further custody in Arizona, he testified about being contacted by McDonald there regarding this case. After multiple conversations with McDonald, who initially thought Getscher had been involved in the San Diego crimes, Getscher decided to cooperate to prove he had no involvement and to curry favor with the San Diego Police in an effort to obtain a reduction of his eight-year prison term in Arizona. Although no promises of any benefits were made to Getscher, the State of Arizona eventually granted him a four and one-half year sentence reduction based on his cooperation in this case. Getscher's testimony regarding his discussions with McDonald and the two recorded phone calls to Young tracked the evidence already before the jury regarding the investigation. In addition to Young admitting to having shot Perez during the recorded calls that were played for the jury, he also conceded he had fired at Maman's van and had hurt his hand in the process.

The Accomplice Testimony

Raynoha, who had participated in the Five Star crimes in July 1999 with Torkelson, Anderson and Young, stated he was testifying under an agreement to cooperate and to tell the truth in exchange for pleading guilty to second degree murder and to assaulting a sheriff's deputy in another case with a sentence of 15 years to life rather than facing two consecutive life without parole terms for his responsibility in the robbery and murders. Raynoha, who had met Torkelson and had become close friends with him when they served time in Juvenile Hall and the California Youth Authority (CYA), said he had been introduced to Young by Torkelson at Aryan Nation meetings. Because Raynoha was experiencing severe financial problems in July 1999, he agreed by telephone to assist Torkelson in a robbery of what he thought would be a drug dealer, along with some other men, including Young, who would be coming to California from Arizona with Torkelson.

Although the men arrived in San Diego the night of July 16, 1999, Raynoha did not join them at Daleo's house until the next afternoon after several more phone calls from Torkelson. When the group was assembled, Torkelson presented his plan to rob the Five Star lot where he worked, which would guarantee each participant between $2,000 to $2,500. In doing so, he drew a diagram, outlining the layout of the parking facility, noted the security camera system at the lot was not yet operational, and explained he would drive the others onto the lot hidden in the back of Daleo's father's truck he would borrow that night and the group would communicate with each other via handheld radios from the parking facility. Essentially, at the time of the robbery there would be one parking booth attendant at the entrance to the lot, the night manager would be inside the office trailer with the safe open counting the money from the prior parking booths attendants' shifts, and Torkelson would be in a far corner of the parking lot taking inventory of the cars. Someone would then take down the booth attendant, someone else would cut the phone cords to prevent the victims from calling for help after the robbery and the men would use duct tape to tie up the victims.

After these discussions, the four drove past the Five Star lot and nearby area to case the facility and plan their getaway, which would be accomplished by taking a car from the lot and then transferring to Anderson's truck, which they would park up the hill from the lot. Afterwards, Anderson distributed loaded guns to Young and Raynoha, Torkelson provided the group with nylon stockings to cover their heads and faces, and Raynoha gave some duct tape to Anderson to use to bind the victims.

Later that night, after Anderson, who transported Young and Raynoha to the area, parked his truck on a street near the freeway by the Five Star lot as planned, Torkelson picked the group up in Daleo's father's truck where they put on gloves and pulled the nylons over their heads. Torkelson then drove into the lot with the others lying in the back of the truck and parked behind the office trailer. Before Torkelson left to start his job, he gave Anderson a radio from the parking facility. A short time later, after Torkelson had gone to a remote part of the lot and a shuttle driver had left for the airport, Torkelson signaled by radio to start the robbery.

When the men started to get out of the truck, they saw a young woman (Perez) rummaging through the trunk of her car parked nearby and waited for her to leave. When she walked around the trailer out of sight, Raynoha went to the exit booth where he took down the cashier and $100 from his register, while Young and Anderson entered the trailer to take money from the safe. As Raynoha sat in the booth guarding the cashier who laid on the floor, he saw Perez come out of the restroom near the back of the office trailer and ordered her at gunpoint to go inside the trailer. Shortly thereafter, Raynoha heard gun shots inside the trailer and saw a van approaching the Five Star lot. As he crouched down, watching the van make a U-turn and start to stop near the trailer, Young and Anderson came running out of it with their guns. Raynoha then joined them in shooting at the van as it sped away.

After the van drove off, the three men ran toward Perez's car and Raynoha shot out the front passenger window, jumped inside and unlocked the doors. Anderson then got into the driver's seat and put the key he had taken from Perez in the ignition while Young jumped into the back and tossed a red bag to Raynoha. When they could not get the car started because the key would not go all the way into the ignition slot, the three men got out of the car and ran toward Pacific Highway, with Young running ahead of the others up Sassafras. As he ran, Raynoha turned and fired several rounds at the lot's trailer to deter anyone from calling the police.

When Raynoha and Anderson then noticed a car with its engine running at a neighboring parking facility, they made a "beeline" for it across the street. As they reached the car, Raynoha pointed his gun at a man standing outside washing its windows and ordered him to turn the car over. When the man told him to take it, Raynoha got into the driver's seat, Anderson climbed into the passenger seat, and they drove up Sassafras where they picked up Young. They then drove to Anderson's truck, changed vehicles and fled the area, tossing their gloves and nylon masks onto the freeway. As they drove toward Daleo's house, Young said he had shot the woman and revealed that he had a hole in his hand where he had shot himself. When the group stopped near Daleo's home, they divided up the money from the robbery, which was only about $300 to $500 each and left Torkelson's share in a box in the bushes in front of the house.

Before the group disbursed, they discussed what had happened in the trailer in addition to Young having shot Perez. Anderson said he had shot the man because "[y]ou can't do one and not the other one. So it already went that far, so I might as well finish it." After agreeing to destroy the guns, Anderson and Young left for Arizona and Raynoha drove to Lake Elsinore. When he got home, Raynoha, who kept his gun with him, woke up Stanley and told her what had happened. The next day, Raynoha called Torkelson, who told him that after the others had left the lot, he talked with the police and did a good job of crying and making it look like he did not know what was going on. Several days later, Torkelson visited Raynoha and brought him newspaper accounts of the robbery and murders. Two weeks later, Raynoha was stopped driving in Costa Mesa and arrested after the police found the handgun he had used during the robbery in the car. The police did not at that time determine Raynoha's or the gun's connection to the crimes at Five Star.

Raynoha further testified about his subsequent contacts with Getscher by telephone regarding another gun that Torkelson had taken from Arizona, about his contacts with Anderson when he left California and traveled through Arizona on his way to Indiana for a fresh start, about his contacts with Torkelson in Indiana where both were involved with various skinhead groups, and about his awareness in late 2002 that his family was being contacted by McDonald to question him about the Five Star crimes. After panicking and destroying all old photographs and newspaper articles about the incident and participants, Raynoha eventually contacted McDonald regarding the matter in January 2003. At that time, Raynoha admitted he had been at the lot that night, identified the other participants, but lied about some of the details and minimized his involvement.

After Raynoha was arrested and brought back to California in April 2003, his counsel approached the prosecution with his offer to cooperate and he subsequently engaged in two "free talks" with the prosecution before finally entering into the agreement to testify truthfully against Torkelson in exchange for his plea and lesser sentence. Although on cross-examination, Raynoha conceded he had lied about the scope of his involvement in the free talks and at his preliminary hearing in this matter, he maintained that he had finally come clean.

The Defense Case

In his defense, Torkelson presented testimony from various witnesses to impeach Getscher as a fraud who had a drug problem, who maintained firearms in his home and who was overheard planning the perfect robbery with Young in July 1999. Torkelson also presented evidence suggesting that he had not been terminated from his job as a security guard at the time of the crimes and that he had tried to communicate with Bowman, the booth attendant, during the robbery via his radio. He further presented evidence calling into question whether the radios from the parking facility were really missing and whether Raynoha had been induced through deceptive police questioning to implicate Torkelson in the Five Star crimes.

In closing, defense counsel argued the People had failed to prove beyond a reasonable doubt that Torkelson had planned, participated in or aided and abetted the crimes on the theory that the perpetrators were his friends who wanted to rob someone and unbeknownst to him, had followed him to his work where they committed the crimes according to Getscher's plan while he took inventory of the cars parked in a distant part of the Five Star lot. The jury determined otherwise.

DISCUSSION

I

EVIDENTIARY ISSUES

Torkelson contends the trial court committed various evidentiary errors which prejudicially effected his trial rendering it unfair and a denial of due process. We address these in turn.

A. Admission of Young's Extrajudicial Statements

Before the initially set joint trial of Anderson and Torkelson in this case, the trial judge made some preliminary remarks with regard to the defense motions, mainly brought by Anderson and joined by Torkelson, concerning Young's statements to Getscher on the phone, noting:

"As to this particular case, I think that it is very clear that the statements of Young that come in will be those statements that are declarations against interest. And it is replete with those statements. But those are not all-encompassing. Everything he says is not a declaration against interest. [¶] I think it is going to be incumbent upon the People to outline, with embarrassing specificity, which statements are going to be used under the theory that they are declarations against interest. [¶] Now, there is a lot of discussion on both sides whether or not this constitutes a testimonial situation under Crawford [v. Washington (2004) 541 U.S. 36, 53-54 (Crawford)]. I conclude that it does not. I concluded that before I was provided with a case that apparently came out of the Fourth Circuit, . . . which clearly indicates that, at least according to the Fourth Circuit Court of Appeal[s] and their assessment of both Davis[v. Washington (2006) 547 U.S. 813, 821 (Davis)] and Crawford, that the statements made, even set up by law enforcement, are not testimonial under Crawford. [¶] So I think, at least with the state of case law as it is today, the defense loses on the theory that none of the Young statements come in because they are testimonial and precluded by Crawford."

When the court then asked how counsel wanted the matter handled regarding Young's statements, Torkelson's counsel agreed with the court's analysis that "the only way to logically proceed is for the People to submit the statements that they want to have admitted and the reasons they want to have them admitted." At that time, because there were also problems of certain statements being sanitized or admitted only against Anderson or only against Torkelson due to the joint trial, counsel thought it best to continue the matter until after a severance motion was decided. Counsel also wanted an evidentiary hearing regarding the trustworthiness or reliability of the statements before the court ruled on their admissibility.

The prosecutor did not believe that a line-by-line analysis for admissibility needed to be done. Rather, the prosecutor believed the entire tape should come in as a declaration against penal interest and "to show context and not for the truth of the matter asserted; to show the reliability of how the relationship is [between Getscher and Young]; to show all of the little peripheral items they discuss [that] go to the reliability." Although the prosecutor opined that parts regarding Getscher's comments about Anderson's conduct after the crimes might need to be excised, she thought all the statements about the crime itself and the roles of the coconspirators were all against Young's penal interest and clearly admissible. With regard to Young's statements at the party that Daleo reported to the police, the prosecutor was offering them to show how the crime was solved, to show the effect on McDonald and the further investigation done as a result of them, and was not offering them for the truth of the matters asserted.

Torkelson's counsel reiterated that in addition to the court finding whether the statements sought to be admitted were declarations against interest, it must also consider his objections that the statements were not trustworthy and reliable and were more prejudicial than probative under Evidence Code section 352. The court continued the matter to give counsel time to further review its tentative rulings.

At the next hearing, in again reviewing its rulings, the court explained that Young's statement, "Torkelson planned the robbery," would come in as a declaration against interest because Young said it right after he said he had shot Perez, impliedly admitting he was part of the robbery or plan. When the court asked the parties to look at the matter more closely and to raise any appropriate objections or issues regarding that or the other statements sought to be admitted, the prosecutor advised the court she intended to play the tapes of Getscher's conversations with Young and wanted "to have an understanding whether or not the court is in a position to rule that the People can play the tape and whether or not any of the . . . peripheral or extra information needed to be excluded from the tape for purposes of preparing that for the time of trial." When the court then asked defense counsel whether they had gone through the tape "with an eye towards an analysis of whether or not some stuff must be redacted and whether or not it might be better for purposes of cross and argument that the entire tape come in so [the jurors] get a full flair," Anderson's counsel responded that he had not done so yet.

At the prosecutor's request, the court asked defense counsel to do so and to provide a copy of the transcript of the tape with the areas highlighted that they believed should be redacted, and then there could be a hearing on the matter. In the meantime, the trial judge tentatively granted the prosecutor's request regarding the controlled call to Young from Getscher, stating, "[t]o me it makes little sense to simply pull out snippets of [the taped conversations] that are truly, in the court's opinion, declarations against interest. They are out of context. And I think tactically, it's better for both sides that [the jurors] hear the context in which those statements were made, for purposes of cross, for purposes of argument, for a whole lot of reasons."

After later denying Torkelson's severance motion, granting Anderson's motion for a lengthy continuance, and hearing additional motions, Anderson pled guilty and Torkelson proceeded to trial alone. During further in limine motions, after the prosecutor obtained an order for Young to be brought to the court to exercise his Fifth Amendment for unavailability purposes for the admission of his statements, she asked the court to address the admission of the tapes of the Getscher/Young conversations, noting that only Anderson's counsel had suggested certain redactions as to Anderson not applicable now and Torkelson's counsel appeared not to have "any issue of wanting anything redacted." When Torkelson's counsel then objected to the whole tape coming in, saying he would take another look at the matter, the trial court noted that counsel had only made "a generalized objection to any of the tape coming in [and t]hat objection was ruled against you." Further, the court understood from earlier discussions that defense counsel's position was that, "[i]f in fact I'm going to lose the motion, and I have preserved my client's right on appeal, I want the whole thing in. I don't want you to piecemeal it in." The court told Torkelson's counsel that if he were now switching his position, he needed to let the prosecutor know so "we can see if something has to be redacted, and whether it can be redacted." Defense counsel thought that was "[f]air enough."

Nearly a month later, during additional in limine motions, the prosecutor advised the court she had received repeated communications from Torkelson's counsel that notwithstanding his objections "to the tape's admissibility overall, he has . . . no objection to the tape in its entirety coming in. I just wanted to make sure that's clear for the record." When counsel said he would phrase it differently, that he objected "to the entire tape being admitted. . .," the court asked if his position was that "while preserving [the defense] right to object overall, [he did not] want just snippets put in there, [he wanted] the panel to hear the whole thing." In other words, that counsel was objecting to the entire tape being admitted and also to only a portion of the tape being admitted. Torkelson's counsel responded that that was correct and that he would "just rest on [his] objection to the evidence as presented on the ground that [he had] objected to, so [he objected] to the whole tape, period." The court again overruled the objection "as has previously been stated."

Later during the hearing, the prosecutor again raised the tape issue in light of "those items on the tape-recorded conversations between [Getscher and Young] that don't technically qualify as declarations against . . . penal interest [which are being offered for] the nonhearsay purpose of the context, the trust between the participants, that the participants in the conversation are who they say they are and what their relationship was, and also for [Evidence Code section] 356 purposes." Because of Torkelson's counsel's blanket objection, the prosecutor wanted assurance that if there was some particular thing counsel "thinks is being offered for the truth that doesn't qualify as a declaration against penal interest," counsel would let her know so she would have the opportunity to cure that before playing the tape. When defense counsel said that his objection was that the statements were not declarations against interest, the trial judge noted it had overruled that objection and was also finding that "under [Evidence Code] section 356, it is infinitely more productive, more relevant, and fair to both sides that the entire statement can come in so the panel can get a flavor of what is being said, what is or is not being suggested by Mr. Getscher, what Mr. Getscher is or is not suggesting to Mr. Young, and his responses. It is very relevant in the overall scheme of things concerning everyone's participation in this alleged conspiracy." The prosecutor also noted for the record that those portions of the tape "really have no mention of Mr. Torkelson . . . so there should be no prejudice to him based on that."

In an evidentiary hearing before the start of trial testimony, Young asserted his Fifth Amendment privilege to each and every question any counsel would pose with regard to this case thereby rendering him unavailable to testify at trial. Subsequently, when Daleo testified at trial, Torkelson's counsel objected that her testimony about overhearing a conversation Young had participated in at a gathering at his house was hearsay and violated "confrontation, previously litigated, which I will relodge." The court noted the objection for the record. When Daleo then said it was someone else that had said Young had gotten trigger happy during the Five Star crimes and Torkelson's counsel objected to lack of foundation for the statement, the court asked the prosecutor whether she was offering the statement for its truth of the matter asserted or its effect on Daleo. When the prosecutor replied that it was being offered for its effect on Daleo, the court ruled it would be received for that purpose and admonished the jury it was not admitted for its truth but for its effect on Daleo, "what she did or said as a result of the information that she had."

After Daleo explained that she had overheard someone say that the plan had been to rob the place while Torkelson was working during his shift and he was at the opposite end of the parking lot, the court sustained the defense objection that there was a lack of foundation for such statements and struck them from the record. The court overruled defense counsel's objection that the questions to Daleo were leading as to whether Young had participated in the conversation about what happened at Five Star and had made statements about it being planned and had not denied his involvement in the crimes.

Similarly, the court overruled objections made to Getscher's testimony on grounds of "[h]earsay, confrontation, declaration against interest," regarding what Young told him about the Five Star crimes after he returned to his house in Arizona from San Diego in July 1999. When the prosecutor then questioned Getscher about making the phone calls to Young, the court sustained an objection that Getscher's answer was a "narrative." No other objections were made before or during the playing of the tape with the conversations between Getscher and Young and the questions asked of Getscher about the taped conversation.5

On appeal, Torkelson contends reversal is required because the trial court prejudicially erred in admitting Young's extrajudicial statements in which he incriminated him because the statements were inadmissible hearsay, their admission deprived him of his rights to confrontation, and their prejudicial value outweighed their probative value. We can find no prejudicial reversible error on this record.

At the outset, we note that the major thrust of Torkelson's confrontation argument is based upon a defendant's right to confrontation under both the United States and California Constitutions (U.S. Const., 6th Amend. and Cal. Const., art. I, § 15 ) as interpreted by pre-Crawford law regarding the admission of an accomplice's confession that inculpates a criminal defendant. (See Lilly v. Virginia (1999) 527 U.S. 116, 134 (Lilly); People v. Brown (2003) 31 Cal.4th 518, 538 (Brown).) In addition, even though, as noted above, he did not avail himself of the numerous opportunities to specifically seek redaction of any objectionable portions of the taped conversation, and agreed with the court that he objected to just snippets of it being played and was essentially objecting to the admission of the entire tape in general, Torkelson now appears to complain about the admission of certain specific statements Young made to Getscher in that tape. Aside from not having preserved such specific claims regarding the tape for appeal, including state evidentiary claims (see Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124 (Kipp)), the law since Crawford, supra, 541 U.S. 36, is applicable to the confrontation clause issues in this case.

1. The Confrontation Clause Challenges

The Sixth Amendment's confrontation clause (U.S. Const., 6th Amend.) provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Historically, such clause had been held to preclude the admission of hearsay statements implicating the defendant in a criminal proceeding unless the prosecution demonstrated that the statements possessed "adequate indicia of reliability." (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1373.) To meet that test, the United States Supreme Court in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) held that evidence of an unavailable witness's statements either had to fall within a "firmly rooted" exception to the hearsay rule or bear "particularized guarantees of trustworthiness." (Id. at p. 66.)6

"In overruling Roberts, Crawford held that out-of-court statements by a witness that are testimonial are barred under the Sixth Amendment's confrontation clause unless the witness is shown to be unavailable and the defendant has had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court. `Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." . . . To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' [Citation.]" (People v. Monterroso (2004) 34 Cal.4th 743, 763-764.) This new rule announced by Crawford, supra, 541 U.S. 36, applies retroactively "to all cases, state or federal, pending on direct review or not yet final . . . ." (Griffith v. Kentucky (1987) 479 U.S. 314, 328.)

Although the court in Crawford declined to "spell out a comprehensive definition of `testimonial,'" (Crawford, supra, 541 U.S. at p. 68, fn. omitted), it listed various classes of testimonial statements and explained that "[w]hatever else the term covers, [testimonial] applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Ibid.)

The court in Crawford also noted that the history of the confrontation clause "suggests that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted." (Crawford, supra, 541 U.S. at p. 51.) Further, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements." (Id. at p. 59, fn. 9.) The confrontation "Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Ibid.)

In addition, the court in Crawford recognized that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." (Crawford, supra, 541 U.S. at p. 68.) Although the court declined to resolve the issue of whether the confrontation clause applies to nontestimonial hearsay, leaving open for consideration of state courts "reliability factors beyond opportunity for cross-examination when the hearsay statement at issue [is] not testimonial" (id. at p. 57), it has subsequently determined that the confrontation clause is only concerned with hearsay statements that are testimonial and has clarified the difference between testimonial and nontestimonial statements for purposes of claimed confrontation clause violations concerning statements made to investigating officers. (Davis, supra, 547 U.S. 813.)

In Davis, the court found that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, supra, 547 U.S. at p. 822.) In making clear that confrontation clause analysis is solely warranted with regard to challenged testimonial hearsay statements, the court in Davis stated that "[i]t is the testimonial character of the [out-of-court] statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." (Davis, supra, 547 U.S. at p. 821.)

Drawing from the analysis in Crawford, supra, 541 U.S. 36 and Davis, supra, 547 U.S. 813, our Supreme Court in People v. Cage (2007) 40 Cal.4th 965 listed the factors a court should consider in determining whether a statement is testimonial, explaining:

"First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined `objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Id. at p. 984, fns. omitted; original italics.)

Where Crawford, supra, 541 U.S. 36, is found to be inapplicable, we then review the admission of evidence, including hearsay issues, for abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1144; disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 20 (Doolin).)

Applying the above principles here, we determine the record amply supports the trial court's finding that Crawford, supra, 541 U.S. 36, was inapplicable to Young's statements made to Getscher during the telephone calls and also to those overheard by Daleo at the party at Young's house. Taking the latter statements first, none of the factors set forth in Cage were present in those overheard by Daleo. In addition to there being nothing inherently formal or solemn about those statements, they were casual remarks made between friends at a party and overheard by a mere acquaintance, basically a friend of Young's girlfriend, and cannot objectively be viewed as testimonial. Further, because they were not admitted for the truth of the matters they asserted, only for the nonhearsay purpose of explaining how Daleo acted after hearing them, Crawford does not apply to those statements by Young.

As for Young's statements made to Getscher in the taped phone calls, their overall context reveal that they were also casual remarks made between long time friends. Although the police may have been instrumental in having Getscher assist them in placing the pretext call to Young, other than a few questions that McDonald wrote out and gave to Getscher to ask of Young, the phone calls were not directed or dominated by the police. The transcript shows that the calls were placed to Young over several days and times, with Getscher initially asking about Young's family and friends, talking about their good friend Anderson and then turning to a discussion of jointly committing another robbery. Using the ruse that he was planning a bank robbery in Oregon, which they had previously discussed when in prison together, Getscher simply asked Young to relate what had gone wrong with the Five Star, San Diego robbery so that those things would not happen the next time. The discussion between Young and Getscher was not formal and did not bear any characteristics of a solemn accusation that would be asked during a police interrogation. Although Young agreed with Getscher's suggestion that Torkelson had "kind'a" planned the robbery, he mainly said he had screwed up because he was "new at that stuff, my nerves goin' and adrenalin. I'm not well planned." Young said he left things behind, like the items to tie the victims up, and things "just like . . . happened." He admitted he panicked and shot first and then Anderson shot the other victim. In response to Getscher's questions, Young agreed Torkelson and his cousin were involved, the robbery was Torkelson's idea and he basically planned it, even though that night everyone "kind of got together."

Although arguably Young's statements might be objectively viewed as being taken by Getscher to curry favor with the police to establish some past fact for possible use in the criminal investigation, which is a testimonial purpose, the statements cannot be viewed objectively as having been made by Young "primarily for [that] purpose ascribed to testimony. . . ." (Cage, supra, 40 Cal.4th at p. 984.) The fact that a statement might be used at a subsequent trial is not enough to render ordinary hearsay testimonial. (Id. at p. 984, fn. 14.) Thus, because Young's statements in the telephone conversations with Getscher were not testimonial, they were not subject to the requirements of Crawford, supra, 541 U.S. 36. (United States v. Smalls (10th Cir. 2010) 605 F.3d 778, 780; United States v. Burden (2d Cir. 2010) 600 F.3d 204, 223-224; Porterfield v. United States (Alaska Ct. App. 2006) 145 P.3d 613, 614-617.)

Moreover, Torkelson's reliance on Lilly to argue that Young's out-of-court statements were by nature the equivalent of other "testimonial" hearsay and could not be admitted because they were essentially an accomplice's confession that inculpated him and consequently are not within a firmly rooted exception to the hearsay rule for purposes of the confrontation clause (Lilly, supra, 527 U.S. at p. 134), is misplaced. Lilly predated Crawford, supra, 541 U.S. 36, and did not address the scope of the term "testimonial." Although under Lilly, there was a presumption that accomplice confessions that shift or spread the blame to a defendant at a criminal trial are unreliable and violate the confrontation clause, such was based on the testimonial nature of the hearsay statements by the accomplice. Where, as here, the hearsay statements by the accomplice are not "testimonial," the analysis in Lilly is not on point. (Lilly, supra, at pp. 133-137.)

In sum, because Young's statements to Getscher and those overheard by Daleo were nontestimonial, their admission did not implicate Torkelson's confrontation rights and the court properly overruled his confrontation objections.7

2. Applicability of Evidence Code section 1230

Although we have determined that Torkelson's confrontation clause claims are meritless, we must still determine whether the trial court properly admitted Young's statements under a recognized Evidence Code hearsay exception, and if so, whether that evidence should have been excluded under Evidence Code section 352.

As noted earlier, the trial court originally found Young's statements concerning the Five Star crimes were generally admissible under Evidence Code section 1230 (declarations against his penal interest) and reaffirmed such tentative ruling several more times before and during trial. We thus turn to the question of whether the court properly admitted those statements under Evidence Code section 1230. In doing so, we review the court's ruling that the foundational requirements for admissibility of evidence have been met under an abuse of discretion standard. (People v. Martinez (2000) 22 Cal.4th 106, 120, 126.) We will "overturn the trial court's exercise of discretion `"only upon a clear showing of abuse."' [Citations.]" (Id. at p. 120.) Here, we find no clear showing of abuse.

Generally, hearsay evidence, which "[i]s evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" (Evid. Code, § 1200, subd. (a)), is inadmissible unless the law provides an exception for its admission. (Evid. Code, § 1200, subd. (b).) Statements which are not offered to prove the truth of the matters asserted do not constitute hearsay.

"Evidence Code section 12308 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant's penal interest. The proponent of such evidence must show `that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' [Citation.] A trial court determining whether the proffered evidence is sufficiently reliable `"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. Lucas (1995) 12 Cal.4th 415, 462.)

Because of concerns that declarations against penal interest may contain self-serving and unreliable information, such hearsay exception generally does not "apply to collateral assertions within declarations against penal interest." (People v. Campa (1984) 36 Cal.3d 870, 882.) Further, "[e]ven a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect. [Citation.] Ultimately, . . . `whether a statement is self-inculpatory or not can only be determined by viewing it in context.' [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte).) Thus, if the statement "`is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others)[, it] does not meet the test of trustworthiness and is thus inadmissible.'' [Citations.]" (Ibid.) Consequently, only those portions of Young's statements to Getscher that were "specifically disserving" (People v. Leach (1975) 15 Cal.3d 419, 441) to his penal interests would be admissible under Evidence Code section 1230.

Here, Young was unavailable to testify due to the assertion of his Fifth Amendment privilege against compelled self-incrimination. His statements made to his friend Getscher based on his first-hand knowledge of the Five Star crimes with words of self-incrimination, admitting he had been a part of a robbery plan during which he shot Perez and why, were disserving and against his penal interest. Although Young responded to questions that Torkelson planned the robbery, thereby implicating him as an accomplice, Young nonetheless acknowledged his own personal culpability in the planning and in firing a gun first and killing Perez when he "screwed up" and his adrenalin was flowing. These statements were "`so clearly and strictly self-incriminatory when uttered [to Getscher] that they are almost certain to be true' [citation]." (Duarte, supra, 24 Cal.4th at p. 618.) In addition, as the trial court found, the statements showed that Young knew of the robbery plan and agreed with the others to participate in it and did in fact execute his role in the plan even though he botched it.

Moreover, to the extent Torkelson argues that any of the specific statements Young made that implicated him should have been redacted from the tape played to the jury, he has forfeited the right to so complain on appeal. As the records reflects, his trial counsel was given numerous opportunities to request redaction and did not avail himself of such opportunities. Additionally, Torkelson has forfeited the right to complain about the other sections of the taped conversations that were admitted for the nonhearsay purposes of showing the context in which the statements were made as well as the relationships and trust between the participants, and not for the truth of the matters stated because he did not challenge them below on grounds other than not being against Young's penal interest.

In sum, the record supports the trial court's findings and there was no abuse of discretion in the court admitting Young's statements under Evidence Code section 1230 and for nonhearsay purposes.

3. Evidence Code section 352

This, however, does not end our review, as the contested evidence must not only fall within a recognized hearsay exception, its probative value must also outweigh its prejudicial effect under Evidence Code section 352.9 (People v. Giles (2007) 40 Cal.4th 833, 854; overruled on other grounds in Giles v. California (2008) 554 U.S. 353.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence." (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) The weighing process under Evidence Code section 352 "depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) "`The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 320.) We will not find that a court abuses its discretion in admitting challenged evidence unless its ruling "`falls outside the bounds of reason.' [Citation.]" (Kipp, supra, 18 Cal.4th at p. 371.)

Moreover, as our Supreme Court has repeatedly reaffirmed, "when ruling on [an Evidence Code] section 352 [matter], a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352." (People v. Williams (1997) 16 Cal.4th 153, 213, citing People v. Lucas (1995) 12 Cal.4th 415, 448-449 (Lucas).)

Applying these rules in this case, we believe the record reflects that the trial court understood and fulfilled its responsibilities to weigh the probative value versus the prejudicial effect of Young's statements as a whole. The trial court found they were relevant to help explain "the overall scheme of things concerning everyone's participation in this alleged conspiracy." The statements actually mentioning Torkelson were relatively brief and did not risk any confusion of the issues or misleading of the jury. The statements were also not any more inflammatory than other statements already admitted via the testimony of McDonald, Daleo, Stanley, and portions of Getscher's testimony that tied Torkelson to the crimes to which no objections were made. Under these circumstances, we cannot find the trial court abused its discretion in admitting Young's statements to Getscher as more probative than prejudicial.

4. No Prejudicial Error

Finally, even assuming the court erred in admitting Young's statements, any error was harmless. As noted above, other independent evidence tied Torkelson to the Five Star crimes and corroborated Raynoha's accomplice testimony that Torkelson planned the Five Star robbery and about the details of the crimes.

Specifically, in his unobjected to testimony, Getscher noted he had overheard Torkelson suggesting to Young and Anderson that they could rob one of the places where he worked as a security guard and Daleo had testified that those three plus Raynoha were at her house on the night of the murders thereby corroborating Raynoha's testimony about the participants in the plan. Daleo and her father's testimony also corroborated Raynoha's about Torkelson borrowing her father's truck that night. Physical evidence at the crime scene and Bowman's testimony corroborated Raynoha's statements about the specifics of the plan that the safe would be open in the office trailer where the night manager would be counting the money and that the telephone and computer cords in the trailer would be cut.

In addition, Raynoha's testimony about the details of what transpired on the Five Star lot and during the escape from the crime scene with Young and Anderson was abundantly corroborated not only by the forensic evidence, but also by the testimony from Bowman; Maman, whose van was shot at by the group; Gagarin, whose car Raynoha and Anderson carjacked; and Mackey, the booth attendant at the neighboring lot, who witnessed along with Gagarin, the men running from the Five Star lot, their shooting at the van and then the carjacking.

Moreover, the evidence that Torkelson had been fired from his security job and was not supposed to be working the night of the crimes coupled with all the forensic evidence and the above testimony fully corroborated Raynoha's accomplice testimony and overwhelmingly established Torkelson's participation in the Five Star crimes independently of any of Young's statements that Torkelson had planned the robbery. Accordingly, even if the admission of Young's statements were considered erroneous as a violation of Torkelson's constitutional confrontation rights or in violation of state hearsay law, the error was not prejudicial. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson).)10

B. Admission of Torkelson's Affiliation With Racist Organizations and Prior Criminality and Incarceration

As with the evidence of Young's statements, the original defense motions seeking to exclude any evidence of activities or affiliation with White supremacist groups and any evidence regarding prior criminality and incarceration were brought by Anderson with Torkelson deemed to have joined in the motions. The trial judge initially noted that he tentatively was inclined to find the custodial status and the fact that "a lot of these individuals met in prison or [CYA], or what other comparable states have. . . [was] relevant [as to] how they met. I think it is relevant that they developed a friendship and/or relationship which culminated in a degree of trust that was necessary to plan or commit this particular crime. I think it is relevant." The court, however, did not think it was relevant as to why they were in custody or how long they were in custody, only that "the period of time they were in custody together and where they were in custody" would be relevant. The court thought the parties could fashion some agreement concerning the limited nature of the admission of such evidence and question their witnesses accordingly. Although the court understood the argument under Evidence Code section 352, "given the nature of these particular charges, what's at stake here for all parties involved," it did not find "that any great degree of prejudice attaches to the defendants with the release to the [jury] of this type of information, within the parameters that we have discussed."

As for Torkelson's motion to exclude evidence of his White supremacy activities, the court wanted to hear further argument because it found "there was certainly a sufficient degree of relevance for [such evidence]." The prosecutor wanted to use the evidence to show how Raynoha, Young and Torkelson knew each other through attending Aryan Nation-type White supremacist meetings to show the nature of their relationship and the strong kinship and trust in each other different from other organizations, specifically "the fact that they were willing to plan criminal activity together. . . ." Defense counsel objected that the evidence was irrelevant and inadmissible under Evidence Code section 352, stating the defense was not contesting that Torkelson, Raynoha and Young knew each other and offered to stipulate that they belonged to the same club and had met at political meetings.

Although the trial judge found that the objection "may be well taken," with regard to Anderson, he nonetheless found that the information would come out one way or the other by virtue of the witnesses in this case and how and where they met "these guys, how they were involved. Daleo and these people, how they were involved with these individuals, how they even knew them, from what areas. [I]t is an intrinsic part of this particular case. And while at first blush, there may appear to be some substantial [Evidence Code section] 352 issues, practically speaking, I don't see how we avoid it. This is how they all got together. It's a fact, a lousy fact for the defense, one of many lousy facts that you guys have to contend with. I understand that. On that basis, I can't see how I can exclude it."

After nearly a year's continuance and Anderson's plea, the prosecutor sought clarification from the court as to its ruling on the admission of the White supremacist evidence before preparing the jury questionnaires and voir dire. The court reiterated that the evidence was relevant on the issue of association and because the crimes were not racially motivated, the evidence was not "hugely prejudicial," only "minor." When Torkelson's counsel objected that any discussion of the principles or beliefs in the skinhead organization should be precluded, the court responded that counsel was requesting too much because it thought the jurors were "entitled to know really what the extent of the bond was between these people and what brought them together and what would have led them to act in a certain way with each other, a certain degree of trust." The court, however, reminded the prosecutor that this was "one of those line-drawing situations" where she needed to exercise restraint in questioning the witnesses.

After a jury was chosen11 and before opening arguments, counsel again brought additional motions regarding evidence of Torkelson's past criminal history and his Aryan Nation ties. Counsel objected to the proposed admission of Torkelson's employment application with City Events that disclosed his juvenile adjudication for receiving stolen property because it was cumulative to the testimony the court was already allowing in, "which is Raynoha's testimony that he spent time in the juvenile facility with [Torkelson.] That's already coming in. I don't have any problem with that. [¶] But as far as the employment application all together, I don't see any relevancy to the whole thing, so I would object on the basis of relevancy." The court overruled the objection, stating it believed the application was relevant.

After the court reiterated its ruling regarding the White supremacy issue, Torkelson's counsel asked for a general exclusion order "that none of the prosecution witnesses be allowed to refer to the fact that subsequent to these alleged crimes the defendant was convicted or incarcerated in any other state for any other crime." When the prosecutor explained her concern that Daleo had finally come forward to help solve this crime because of the knowledge that Torkelson was then in custody in Oregon, which was very relevant to the case, defense counsel objected that the evidence of Torkelson's incarceration in Oregon where he was "already serving a life term" was highly prejudicial and should be excluded under Evidence Code section 352. The court sustained the objection in part and overruled it in part, finding that Daleo could be questioned on why she came forward, i.e., that Torkelson was in custody at the time, but that she could not be asked about why he was incarcerated or for how long he was to be incarcerated.

Subsequently, the prosecutor introduced evidence that Torkelson had participated in Aryan Nation meetings, that he had met Young through such meetings, that he had introduced Young to Raynoha at the meetings, and that he had taken Daleo to the meetings where she met Raynoha and his girlfriend Stanley. The prosecutor also presented evidence through Daleo's and her parent's testimony that Torkelson and his friends that came to their house were skinheads and he kept some anti-Semitic information in their home. Daleo further testified she had not felt safe to cooperate with the police because of Torkelson's ties to the skinheads.

In addition to Raynoha testifying about meeting Torkelson when they both served time in Juvenile Hall and the CYA, which was corroborated by CYA records admitted into evidence, Daleo testified she knew Torkelson had met Raynoha in a juvenile facility and her father said he was aware that Torkelson had a criminal record. Several City Events employees also testified about Torkelson's employment application in which he disclosed that he had a criminal record and which was admitted into evidence.

During the presentation of the evidence, the court gave the jury an explicit instruction that it was only to consider Torkelson's involvement in the White supremacy organization for the purpose of establishing how he knew other parties or witnesses in this case and that the evidence he was in a juvenile facility could only be used to explain his relationship with Raynoha.12 During jury instructions, the court reiterated the admonishment concerning the limited purpose for which the jurors could use the evidence of Torkelson's White supremacy ties and his prior juvenile custody.

On appeal, Torkelson contends the trial court prejudicially erred in admitting the evidence regarding his ties to the White supremacy organization and regarding his prior custody in a juvenile facility. We conclude the court was well within its discretion in admitting both.

Generally, a trial court has wide discretion in determining the admissibility of evidence (Lucas, supra, 12 Cal.4th at p. 449), i.e., in deciding whether the evidence is relevant13 (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167) and whether Evidence Code section 352 precludes its admission (Lucas, supra, at p. 449). The trial court's ruling in exercising such discretion will not be disturbed on appeal absent an abuse of discretion. (Ibid.) We will not reverse a judgment unless it appears there is a reasonable probability the jury would have reached a verdict more favorable to the defendant absent such abuse of discretion. (Watson, supra, 46 Cal.2d at p. 837.)

In this case, contrary to Torkelson's assertions otherwise, the facts that he had been in custody in a juvenile facility at the same time as Raynoha14 and that he had been involved in a White supremacy organization were relevant because they had a "tendency in reason" to prove he knew Young and Raynoha very well and that they shared common interests and beliefs. Such evidence was extremely probative as to Torkelson's relationship with those men and the strong bond that they shared based upon mutual trust.15 Further, the evidence was relevant as to why Daleo did not cooperate with the police during its initial investigation and kept quiet for so long.

The question thus becomes whether the prejudicial effect of the admission of such evidence substantially outweighed its probative value in this case. As already noted, the weighing process under Evidence Code section 352 as to whether the probative value of certain evidence "is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124), "depends upon the trial court's consideration of the unique facts and issues of each case . . . . [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1314.)

Here, the record reflects that the trial court clearly understood and fulfilled its duty to weigh the probative value versus the prejudicial effect of the facts of Torkelson's prior juvenile custody and his involvement with the Aryan Nation under the unique facts of this case before ruling such evidence would be admitted with limiting instructions and requesting the parties advise their witnesses of such limitations. The limited use and scope of the evidence presented prevented any unnecessary consumption of time or confusion of the issues and did not mislead the jury in any manner. The limited evidence introduced regarding Torkelson's prior juvenile custody was general and without details as to what he did to be placed in custody where he first met Raynoha. There was nothing unduly inflammatory about such information.

Nor was the limited evidence admitted regarding Torkelson's involvement with the Aryan Nation unduly inflammatory. Although as Torkelson points out, White supremacist association evidence is analogous to gang evidence, which is potentially prejudicial and should not be admitted if its probative value is minimal (see People v. Lindberg (2008) 45 Cal.4th 1, 46-47; People v. Hernandez (2004) 33 Cal.4th 1040, 1049), in this case the probative value of such evidence was not minimal, but was extremely relevant as noted above. Moreover, because this was not a case involving crimes committed in furtherance of a White supremacist group, no "expert" testimony was admitted that provided information on what the Aryan Nation is, its racist ideology, or the types of criminal conduct the organization sanctions or endorses. Rather, most of the prosecution evidence regarding Torkelson's ties to the Aryan Nation were brief mentions by lay witnesses that were only expanded upon during cross-examination.

In addition, the court carefully admonished the jury as to the limited purpose for which the evidence being presented during the trial could be considered and again instructed the jury at the close of all evidence on its limited purpose. We presume the jurors followed the court's admonishments and instructions. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) Consequently, on this record, we simply cannot find that the trial court abused its discretion in admitting the limited evidence of Torkelson's juvenile custody with Raynoha or his ties to the Aryan Nation. To the extent Torkelson also claims the admission of this evidence violated his federal constitutional rights, the claim fails as it is based entirely upon his state law claim of error. (People v. Carter (2003) 30 Cal.4th 1166, 1196 (Carter).)

D. Admission of Attempt to Commit Another Crime

Finally, Torkelson contends the trial court prejudicially abused its discretion in admitting evidence of his and Young's check cashing fraud in Arizona in the days before the Five Star crimes, specifically arguing that such was inadmissible other crimes evidence under Evidence Code section 1101. We disagree.

During the in limine motions while Anderson was still a codefendant, the trial court tentatively ruled that evidence regarding the July 11 burglary at Cycle Bob's would be admitted, noting it "was very relevant, for a variety of reasons, not the least of which it puts everybody in the Arizona area — some of the principals in Arizona at that particular time, very shortly before the [Five Star] crime[s go] down. It lends to the theory that a degree of planning took place in Arizona, a degree of planning took place in Mr. Getscher's presence, for example. [¶] There were the checks taken . . . from Cycle Bob's, and then we have them on videotape at one of the banks trying to negotiate the checks."

Anderson's counsel subsequently renewed his motion to exclude evidence of the entire Cycle Bob's incident, arguing, that although the evidence might be relevant as to Torkelson to show that he was in Arizona, it had no relevance regarding Anderson who lived there and as such it was purely propensity evidence, making it more prejudicial than probative. Torkelson's counsel joined in the motion, conceding that the testimony was certainly relevant to show the men were together or knew each other, but arguing the evidence was purely uncharged misconduct that was unnecessary for the prosecution to prove such knowledge. The trial judge reaffirmed his tentative, stating:

"I understand what is being said, but I don't agree with the limitation that both of you want to put on this. I think it's extremely relevant; the relationship that these gentlemen had together, what they would do together, what they wouldn't do together. [¶] I think it's important on a whole series of levels. But the quick ones that come to mind, there's a lot of activity that takes place after this crime involving some or all of the defendants. There are instances in which people are told things in the presence of other defendants. There's a high degree of trust . . . among these people as to doing certain things. [¶] I don't think it's fair to simply limit the people or limit the scope of the assessment to just say they knew each other. This wasn't just knowing each other. It went far beyond that."

During trial, the prosecutor presented evidence that Anderson had burglarized the motorcycle shop (Cycle Bob's) and stole payroll checks which, on July 12, 1999, Torkelson and Young tried to cash at an Arizona bank nearby Getscher's residence. In the attempt, the men used their own driver's licenses and forged signatures on the checks. When bank employees became suspicious about the checks in the amount of $950 and $1,300, respectively, Torkelson and Young left the bank before the matter could be further investigated.

On appeal Torkelson concedes that this evidence may have had some relevance to show he was with Anderson and Young in Arizona shortly before the Five Star crimes and that he was there at a time when he was scheduled to work at the Five Star lot, but argues it was cumulative to the other information about his being in Arizona and highly prejudicial because it "must have led the jury to conclude that if [the men] did it together before, they must have done it together at the Five Star lot." Contrary to Torkelson's assertion, the evidence was not prohibited propensity evidence under Evidence Code section 1101, subdivision (a).

Generally, evidence of other crimes or misconduct is inadmissible under Evidence Code section 1101, subdivision (a) when it is offered to show that a defendant had the criminal disposition or propensity to commit the crimes charged. However, evidence of other crimes or misconduct by a defendant is admissible if it tends to "`logically, naturally, and by reasonable inference . . . establish any fact material for the People, or to overcome any material matter sought to be proved by the defense.'" (People v. Peete (1946) 28 Cal.2d 306, 315.) Evidence Code section 1101, subdivision (b), codifies this exception to the general rule of inadmissibility by providing for the admission of such evidence "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [the defendant's] disposition to commit such [crimes or bad acts]."

As our Supreme Court noted in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt):

"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] `[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant `"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Id. at p. 402.)

However, even if the other crimes evidence is relevant to prove one of the facts specified in Evidence Code section 1101, subdivision (b), it must also satisfy the admissibility requirements of Evidence Code section 352, that is, its "probative value [must not be] `substantially outweighed by the probability that its admission [will] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (Ewoldt, supra, 7 Cal.4th at p. 404, quoting Evid. Code, § 352.)

The trial court has broad discretion when deciding whether to admit or exclude evidence under Evidence Code sections 352 and 1101, subdivision (b) and its decision will not be disturbed on appeal absent a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438; abrogated on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)

Here, because Torkelson's defense was that he was not involved in the robbery, the prosecutor had to show he was very much connected with the other participants in the planning and execution of the plan to rob the Five Star lot and also needed to show that he harbored the intent to engage in the robbery at the lot. Because the so-called bank fraud attempt in Arizona was only five days before the Five Star crimes, it provided relevant evidence of both Torkelson's relationship with Young and Anderson as well as his overall intent and motive in planning and executing the robbery at the parking facility where he worked. Essentially the check cashing attempt showed that Torkelson worked together with Anderson and Young to fraudulently obtain some quick, easy money and that there was a mutual degree of trust with each man as they carried out that scheme.

Because Torkelson had met Anderson for the first time during his July 1999 trip to Arizona, the entire Cycle Bob incident and check cashing attempted fraud may have served as a proving ground for gaining trust between the men. Additionally, it showed his motive and intent to obtain quick and easy large amounts of money. In his planning of the Five Star robbery with Young, Anderson and Raynoha, Torkelson had indicated he was interested in easy targets to obtain money. To Torkelson, the Five Star lot was an easy target because he knew its layout, knew the security cameras were not yet functioning and knew the routine of when the manager counted the money taken in by the lot. The check cashing scheme was likewise an easy way to obtain a large amount of money with very little effort on his part. Thus, this earlier uncharged crime was probative of his overall motive and intent in planning and participating and aiding in the Five Star robbery. In both crimes, Torkelson played the role of living his usual life while committing each crime. In the check cashing scheme, he walked into the bank, presented his own driver's license with the check and acted as if he had legitimate business to conduct in the bank before leaving. In the Five Star robbery, he drove to the lot dressed to work his shift as a security guard and proceeded to work his shift as though he had a legitimate purpose for being there even though he had been fired. Because there were adequate similarities between the crimes one could infer Torkelson "`"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 402.) In other words, there were sufficient similarities to establish relevance on the issue of intent for purposes of Evidence Code section 1101, subdivision (b) admission.

Although the trial court did not expressly state it was weighing the prejudice against the probative value of the admission of this evidence, the totality of the record reflects that the court understood and fulfilled its duty under Evidence Code section 352 to do so after hearing argument of counsel several times on the matter of prejudice. Our review of the record confirms what the trial court found, that the relevance of the evidence was so substantial on many different issues that it need not have been limited as suggested by defense counsel. No abuse of the trial court's discretion in this matter is shown. Again, to the extent Torkelson also claims the admission of this evidence violated his federal constitutional rights, the claims fails as it is based entirely upon his state law claim of error. (Carter, supra, 30 Cal.4th at p. 1196.)

II

CLAIMED ACCOMPLICE INSTRUCTIONAL ERRORS

During jury instruction discussions, after the court noted it would give CALJIC Nos. 3.10 (Accomplice—Defined), 3.11 (Testimony of Accomplice Must be Corroborated), and 3.12 (Sufficiency of Evidence to Corroborate an Accomplice), it asked counsel whether it would be required to give CALJIC No. 3.13 for one accomplice corroborating another accomplice in light of admitting accomplice Young's pretrial statements.16

Defense counsel suggested that there were three accomplices, stating, "[o]ne is obviously Young in his . . . tape record[ed] statement. The second is Raynoha. At least the jury could consider, based on this evidence, that Getscher is an accomplice. May not be adequate enough as a matter of law. Certainly a factual question that the jury can consider." The prosecutor disagreed, arguing that there were not two accomplices testifying because Young's statements were not "testimony" as his statements came in as declarations against his penal interest after the court ruled they were reliable and trustworthy and there was no evidence to suggest that Getscher was an accomplice.

After the court ruled in the prosecution favor that CALJIC No. 3.13 would not be given and noted it would give CALJIC No. 3.16, telling the jury that Raynoha was an accomplice as a matter of law, defense counsel requested the court amend that instruction to include Young as an accomplice as a matter of law consistent with his other request on accomplice testimony. When the court reiterated that there was no testimony from Young that needed to be corroborated, defense counsel argued that he thought there was a need to do so because Young's taped pretrial statements were "made in preparation for prosecution by the detectives." The prosecutor injected her thoughts that because the court had already properly ruled Young's statements were not testimonial and did not present a Crawford problem, the public policy reasons behind accomplice corroboration did not apply to Young as his statements were trustworthy and nontestimonial. The court denied Torkelson's counsel's request to amend CALJIC No. 3.16 to add Young as an accomplice as a matter of law.

When the court then noted it would give CALJIC No. 3.18 (Testimony of Accomplice to be Viewed with Care and Caution) and asked why CALJIC No. 3.19 (Burden to Prove Corroborating Witness is an Accomplice) was included in the proposed instructions, the prosecutor explained that it was a defense request based on the argument that Getscher was an accomplice, which the prosecutor did not think was appropriate. Defense counsel thought otherwise because he would be arguing that Getscher was an accomplice based on the evidence. The court disagreed that there was any evidence "to suggest that [Getscher] was an accomplice in the case . . . based upon any independent evidence apart from his testimony or as a result of his testimony. So [CALJIC No.] 3.19 will be rejected." When defense counsel further noted for the record that there was evidence that "the guns were distributed at [Getscher's] house for this robbery," the court again rejected the request to give CALJIC No. 3.19.

On appeal, Torkelson contends the trial court prejudicially erred in refusing to give accomplice instructions with regard to Young and Getscher. The general rule is that in a criminal case the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty `to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.) With this preliminary rule in mind, we address each of Torkelson's instructional error contentions in turn.

A. Failure to Instruct That Getscher Might Be an Accomplice

Torkelson asserts the trial court erred by failing to instruct the jury as requested with CALJIC No. 3.1917 concerning whether Getscher was an accomplice whose testimony should have been viewed with distrust and would have required independent corroboration to substantiate. He argues such was prejudicial error because there was sufficient evidence presented at trial from which the jury could have found Getscher was an accomplice to the charged offenses, and if the jury had done so, then his testimony could not have provided the necessary corroboration for Raynoha's and Young's accomplice testimony that he (Torkelson) was connected to the crimes as the major planner of the robbery at his place of business on July 18, 1999. His assertion is meritless.

Section 1111 provides "[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense," and defines an accomplice as "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." This definition includes principals in the offense, but not accessories. (People v. Tewksbury (1976) 15 Cal.3d 953, 960.) A "principal" is one who is "concerned in the commission of a crime [regardless of] whether [he or she] directly commit[s] the act constituting the offense, or aid[s] and abet[s] in its commission[.]" (§ 31.) One is liable as an aider and abettor if he acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating the commission of the offense. (People v. Marshall (1997) 15 Cal.4th 1, 40.)

When there is evidence from which the jury could find a witness to be an accomplice, the court has a sua sponte duty to instruct on accomplice testimony regarding that witness. (People v. Lewis (2001) 26 Cal.4th 334, 369 (Lewis).) Such instructions inform the jury that if it finds that witness is an accomplice, the witness's testimony should be viewed with distrust and must be corroborated by evidence tending to connect the defendant with the commission of the offense. (CALJIC Nos. 3.19, 3.11, 3.12.) The cautionary instructions are required because an accomplice may try to shift the blame in an effort to minimize his or her own culpability. (People v. Tobias (2001) 25 Cal.4th 327, 331.)

However, the court need not give the accomplice instructions if it determines the evidence is insufficient as a matter of law to support a finding that that witness is an accomplice. (Lewis, supra, 26 Cal.4th at p. 369.) Substantial evidence is not just any evidence, no matter how weak, but evidence sufficient to deserve consideration by the jury. This requires something more than mere speculation. (Id. at pp. 369-370.) Mere knowledge of a crime is insufficient. (Id. at p. 369.) The burden is on the defendant to establish by a preponderance of the evidence that a witness is an accomplice. (People v. Sully (1991) 53 Cal.3d 1195, 1228.)

Here, the jury could not have reasonably found Getscher to be a principal or aider and abettor in the offenses charged against Torkelson because based on the testimony presented at trial, there was no evidence to support a finding he was an accomplice to the planned robbery and the other crimes that were a natural and probable consequence of the robbery. Contrary to Torkelson's appellate arguments, the facts that Getscher had knowledge that Torkelson, Anderson and Young were going to San Diego to commit a robbery at the place where Torkelson worked, that the robbery was planned at or near Getscher's residence in Arizona, that Anderson may have distributed the firearms used in the robbery and other crimes at Getscher's residence, that Getscher had a close relationship with Young and Anderson due to their previous incarceration in Arizona and their continuing contact through White Supremacist organizations, and that Getscher initially lied to McDonald about his knowledge of the crimes and its details when contacted in 2002, do not automatically make him an accomplice to robbery, murder, attempted murder and carjacking. Although Getscher may have had knowledge of Anderson's, Young's and Torkelson's intent to go to San Diego to commit a robbery at Torkelson's work place, Torkelson's reliance on such knowledge and the other facts above listed to support his request for accomplice instructions regarding Getscher was not substantial but merely speculative.

Rather, credible evidence revealed that Getscher knew little or nothing about the specific details of the crimes before they occurred and that at the time of trial he still did not know many of the details regarding the crimes other than information he had gained through the phone calls to Young and his discussions with McDonald. The record also suggests that Getscher was opposed to any robbery scheme, telling the others at his home to take their conversations outside and later trying to warn and dissuade Young and Anderson from participating in any crimes with Torkelson. In sum, the record is simply void of any substantial evidence indicating Getscher "in any way, directly or indirectly, aided the perpetrator[s] by acts or encouraged [them] by words or gestures." (People v. Villa (1957) 156 Cal.App.2d 128, 134.)

Moreover, even assuming the trial court erred by failing to give accomplice instructions with regard to Getscher, any error was harmless because there was more than amble corroborating evidence of his testimony through that of Stanley and Daleo to connect Torkelson with the robbery. (See Lewis, supra, 26 Cal.4th at p. 370.) As noted in the facts, both women testified that Torkelson had planned the robbery of his work place with Young, Raynoha and Anderson, the man from Arizona.

To the extent Torkelson also argues that the jury should have been instructed to view Getscher's testimony with distrust (CALJIC No. 3.18), we find the other given instructions, "— including `[a] witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others' (CALJIC No. 2.21.2), along with instructions on a witness's credibility (CALJIC No. 2.20) and the character of a witness for honesty or truthfulness or their opposites (CALJIC No. 2.24)—were sufficient to inform the jury to view [Getscher's] testimony with care and caution, in line with CALJIC No. 3.18." (Lewis, supra, 26 Cal.4th at p. 371.) Indeed, the jury was fully apprised of Getscher's criminal past in the prosecution case and Torkelson's counsel on cross-examination and in closing argument specifically pointed out all the inconsistencies in Getscher's statements to police, investigators, at the preliminary hearing and at trial, stressing that Getscher was not to be believed because he really did not know any of the details of the robbery and other crimes and only wanted leniency in his Arizona prison sentence. In light of this record, we thus conclude there was no reasonable probability that Torkelson would have received a more favorable result if the trial court had instructed the jury to view Getscher's testimony with caution and distrust. (Watson, supra, 46 Cal.2d 818, 837.)

Further, because we find no error and otherwise find any error to be harmless, we accordingly reject Torkelson's additional assertion that his federal constitutional rights to due process and a fair trial were somehow violated by the trial court's failure to instruct on accomplice testimony with respect to Getscher.

B. Failure to Instruct That Young Was an Accomplice as a Matter of Law

Torkelson next contends that because Young was undeniably an accomplice as a matter of law and section 1111 applies to out-of-court statements of an accomplice when they are used as substantive evidence of a defendant's guilt (People v. Anderson (1989) 49 Cal.3d 200, 214), the trial court erred in refusing to instruct that Young was an accomplice as a matter of law under CALJIC No. 3.16. Torkelson asserts the error was prejudicial under both state and federal law because the omitted instructions would have directed the jury to view Young's out-of-court statements with caution (CALJIC No. 3.18) and that they could not be used to corroborate Raynoha's accomplice testimony without being independently corroborated (CALJIC Nos. 3.11 and 3.13). He further argues the failure to instruct that Young was an accomplice as a matter of law denied him his due process rights to a fair trial.

Although it is undisputed that Young was an accomplice, Torkelson is wrong that the court should have instructed that his out-of-court statements made to Getscher in the recorded phone calls played for the jury should be viewed with caution and required corroboration before they could be used to corroborate Raynoha's testimony. As our Supreme Court stated in People v. Williams (1997) 16 Cal.4th 635 (Williams), "[a] court must instruct on the need for corroboration only for accomplice testimony (§ 1111); `"`testimony' within the meaning of . . . section 1111 includes all oral statements made by an accomplice or coconspirator under oath in a court proceeding and all out-of-court statements of accomplices and coconspirators used as substantive evidence of guilt which are made under suspect circumstances.' "[Citations.] As we explained in People v. Sully, supra, 53 Cal.3d 1195, 1230: `The usual problem with accomplice testimony—that it is consciously self-interested and calculated—is not present in an out-of-court statement that is itself sufficiently reliable to be allowed into evidence.'" (Williams, supra, 16 Cal.4th at p. 682; original italics.)

Here, as we have determined above, Young's out-of-court statements made to Getscher in the recorded telephone calls were properly admitted under the declarations against penal interests hearsay exception and did not violate Torkelson's constitutional rights to confrontation under Crawford, supra, 541 U.S. 36. Young was neither incarcerated nor detained when he spoke to Getscher. As such, his statements to Getscher did not implicate the concerns of trustworthiness that usually attend accomplice testimony, i.e., they were not given under suspect circumstances, and thus did not qualify as "testimony" that needed to be corroborated under section 1111 thereby triggering the need for accomplice witness instructions. (See People v. Williams, supra, 16 Cal.4th 153, 245-246; People v. Jeffery (1995) 37 Cal.App.4th 209, 217-218.)

However, even assuming section 1111 properly applies to Young's statements, the trial court's error in failing to instruct that he was an accomplice as a matter of law was harmless. Contrary to Torkelson's assertion otherwise, Young's statements implicating him as being involved with the robbery and the other crimes were sufficiently corroborated by Stanley, Daleo, the circumstances surrounding the crimes and the physical evidence at the crime scene. In addition, even though the court did not specifically instruct the jury it needed to view Young's out-of-court statements with caution, the overall accomplice witness instructions that were given amply conveyed that anything said by an accomplice was suspect. (People v. Andrews (1989) 49 Cal.3d 200, 214-215.) Additionally, as already noted with regard to Getscher, other given instructions, CALJIC Nos. 2.20, 2.21.2, and 2.24, "were sufficient to inform the jury to view [Getscher's] testimony with care and caution, in line with CALJIC No. 3.18." (Lewis, supra, 26 Cal.4th at p. 371.) Thus, the fact the court failed to specifically identify Young as an accomplice would not have led a reasonable juror to simply accept as true everything he said in his conversations with Getscher because they would have known, based on the entirety of the given instructions, to view his statements with distrust and caution. Consequently, there is no reasonable probability that Torkelson would have obtained a more favorable result had the court instructed the jury that Young was an accomplice. (Watson, supra, 46 Cal.2d at p. 837.) Nor is there any merit to Torkelson's additional argument that his federal constitutional rights to due process and a fair trial were violated by the trial court's failure to instruct that Young was an accomplice as a matter of law. No prejudicial instructional error is shown.

III

CLAIMED IMPROPER PROSECUTORIAL VOUCHING

At the beginning of Raynoha's testimony, the prosecutor questioned him about the terms of his plea/cooperation agreement in this case. After Raynoha had stated he had promised in the agreement to tell the truth and that if he did so he would be sentenced to 15 years to life in prison under his plea to second degree murder rather than face two consecutive life without the possibility of parole terms, the court sustained an objection to the prosecutor's next question that Raynoha's promise under the agreement was to tell the truth as cumulative and struck the question.18 The prosecutor then asked Raynoha to look through the actual five-page contract and relate his understanding of the agreement. Raynoha understood that he was pleading guilty to second degree murder and accepting responsibility for assaulting a sheriff's deputy while he was incarcerated and that if he testified truthfully, he would spend 15 years to life in prison. The court overruled Torkelson's objections that Raynoha's further understanding that if he lied the agreement would be null and void was argumentative, leading and cumulative.

After then going over the change of plea form with Raynoha, and having him acknowledge that he had given factual recitations of what he had done in each of the offenses to which he was pleading, the prosecutor asked without objection whether Raynoha's understanding was that the trial judge in this case "was going to be one of the people who would decide whether or not you are telling the truth today?" When the prosecutor next asked whether Raynoha was "prepared to testify truthfully today about the events that happened back on July 18, 1999," the court sustained defense counsel's objection that the question had already been asked and answered and was cumulative.

Near the end of Raynoha's testimony he again discussed the plea/cooperation agreement and his conversations with the prosecution leading up to its acceptance. On cross-examination, defense counsel challenged whether Raynoha was telling the truth because he had repeatedly lied in his conversations with McDonald and had admittedly lied at the preliminary hearing as well as during the two free talks before entering the plea/cooperation agreement. On redirect, when the prosecutor asked whether Raynoha was telling the truth here today based upon his contract in this case, the court sustained defense counsel's objection that the question was cumulative because Raynoha had already "indicated he's telling the truth."19

Subsequently, when the prosecutor sought to admit into evidence Raynoha's cooperation agreement, Torkelson's counsel objected that it was improper vouching. The trial judge disagreed, stating, "[t]he contract I think does not constitute vouching. I think it adequately and accurately sets forth the terms and conditions under which Raynoha agreed to cooperate. As such, [the jurors] are entitled to see that for the good, bad and indifferent it may suggest. That objection is overruled."

On appeal, after conceding that the fact Raynoha was testifying at trial pursuant to a plea/cooperation agreement with the prosecution was relevant and admissible, Torkelson complains that the prosecutor improperly vouched for Raynoha's credibility by "disclos[ing] and highlight[ing] for the jury that Raynoha pleaded guilty before the same judge who presided over [Torkelson's] trial, told him the `truth' about the crimes, and that the plea agreement made the trial court a monitor of Raynoha's truthfulness at [Torkelson's] trial." Torkelson argues that this information placed both the court's and the prosecutor's office's prestige behind Raynoha's testimony and that the trial court's permitting of such vouching was prejudicial error requiring reversal of all his convictions. We disagree.

Aside from the facts that Torkelson did not press the court to rule on his vouching objections during Raynoha's testimony, that the court sustained his cumulative objections to repetitive questions regarding Raynoha's truthfulness, and that he did not specifically object to the prosecutor's questioning about the trial judge in this case being one of the people who would determine whether Raynoha had told the truth, which was one of the plea/cooperation agreement's terms, his assertions that the prosecutor somehow used the prestige of her office or that of the trial court to bolster Raynoha's credibility is pure speculation on this record.

Although "[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record [citations]" and "is not permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial [citation]" (People v. Frye (1998) 18 Cal.4th 894, 971 (Frye); disapproved on another point in Doolin, supra, 45 Cal.4th at p. 421, fn. 22), a prosecutor's comments cannot be characterized as improper vouching if they "are based on the `facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief. . . .' [Citations.]" (Ibid.)

Here, "in accordance with the obligation to disclose to the jury any inducements made to a prosecution witness to testify [citation]" (Frye, supra, 18 Cal.4th at p. 971), the prosecutor presented evidence of Raynoha's plea/cooperation agreement in full. In doing so, she did not rely on any material outside the record, but merely placed into evidence the "precise terms" of Raynoha's plea agreement and contract to cooperate. (See ibid.) Torkelson has failed to show how the phrasing or exact terms of that agreement to testify truthfully suggested to the jury either "a pretrial determination by the [prosecutor's office] that [Raynoha] would be telling the truth, or otherwise portrayed the [prosecutor's office] as privy to information bearing on [Raynoha's] veracity that was not admitted at trial." (Ibid.) When the prosecutor asked Raynoha repetitive questions regarding the agreement, the court properly sustained objections that were made regarding the cumulative information.

Although the prosecutor later asked the jury in closing to review the plea/cooperation agreement when it considered Raynoha's testimony, arguing that he was telling the truth about the crimes and participants because his testimony was consistent with the other independent evidence in the case, no objection was made to such argument as improper vouching. Rather, during the defense closing, counsel told the jurors that they were "the final judge[s] of the credibility of the witnesses" and that they needed to look at Raynoha's motivations for testifying to determine whether to believe him. Counsel argued that Raynoha could not be believed despite what he had said, pointing out all his conceded lies during his pretrial dealings with the police, the prosecutor's office, and in prior court proceedings. As the People point out in their respondent's brief, the evidence of the favorable terms of the plea/cooperating agreement could have thus inured to Torkelson's benefit because it alerted the jury to view Raynoha's testimony with greater scrutiny to determine whether he was telling the truth or just testifying in a manner that would please the prosecution as defense counsel argued. In sum, no improper vouching or error is shown on this record regarding the admission of the plea/cooperation agreement or in the questioning of Raynoha about such contract.

IV

CLAIMED CUMULATIVE ERROR

Torkelson additionally asserts that even if the multiple evidentiary, instructional and vouching errors in this case were not sufficient in and of themselves to require reversal, the cumulative effect of such errors requires reversal of the judgment as violative of his due process and fair trial rights. We disagree. Because we have found no prejudicial error in any of Torkelson's claimed instances of error, he cannot show cumulative prejudicial error (People v. Beeler (1995) 9 Cal.4th 953, 994), or that he was denied due process or a fair trial regarding his culpability in this case. (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)

V

SUFFICIENT EVIDENCE SUPPORTS THE COUNT 3 CONVICTION

Finally, Torkelson contends there was insufficient evidence to support his count 3 conviction for attempted murder of Maman under the natural and probable consequences doctrine. We conclude sufficient evidence supports Torkelson's count 3 conviction.

In reviewing the sufficiency of the evidence to support a conviction, we determine "`whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)

In making the determination, we do not reweigh the evidence. The credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether "`"any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt."' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

With regard to attempted murder, "[a]n attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission." (People v. Kipp (1998) 18 Cal.4th 349, 376; CALJIC No. 6.00.) Such "intent or intention is manifested by the circumstances connected with the offense." (§ 21, subd. (a).) Section 187, subdivision (a) provides that "[m]urder is the unlawful killing of a human being, or a fetus, with malice aforethought." Attempted murder thus "requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.)

Although the intent to kill must be proven and not merely inferred from the commission of another dangerous crime (People v. Belton (1980) 105 Cal.App.3d 376, 380), whether the perpetrator harbored such intent is a factual question which may be inferred from the facts and the circumstances surrounding the act, including the perpetrator's actions and words. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Thus, the nature of an assault, the weapon chosen, the manner in which the weapon was used, the actual consequences of the assault, including the nature of the wound, can all provide evidence of the intent to kill necessary for attempted murder. (Ibid.) For example, firing a gun toward a victim at close range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." (Id. at p. 945.) That "the victim may have escaped death because of the shooter's poor marksmanship [does not] necessarily establish a less culpable state of mind." (Ibid.) In addition, "even if the shooting was not premeditated, with the shooter merely perceiving the victim as `a momentary obstacle or annoyance,' the shooter's purposeful `use of a lethal weapon with lethal force' against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. [Citation.]" (People v. Smith (2005) 37 Cal.4th 733, 742 (Smith).)

Further, where a defendant is charged with attempted murder and prosecuted as an aider and abettor under the natural and probable consequences theory, as in this case, the defendant will be liable for the attempted murder if the actual perpetrator or perpetrators he was aiding and abetting committed that offense with the requisite specific intent to kill and such was a reasonably foreseeable consequence of the target crime he intended to aid and abet, i.e., the Five Star robbery. (See People v. Prettyman (1996) 14 Cal.4th 248, 260.) In other words, "[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime." (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)

Here, Torkelson specifically argues that the evidence failed to establish that his accomplices Young, Raynoha and Anderson harbored the necessary specific intent to kill Maman because Raynoha denied trying to kill the van's driver when he fired at the back of the van, neither Young nor Anderson indicated in postcrime statements that they actually intended to kill Maman, and no bullets struck the van when they fired their weapons. However, as noted above, the intent to kill required for attempted murder may in certain cases "be inferred from the [perpetrator's] acts and the circumstances of the crime." (Smith, supra, 37 Cal.4th at p. 741.) This is one of those cases.

The evidence shows that Torkelson's accomplices armed themselves before going with him to the Five Star lot with the understanding they would rob the place and later split the money after they got away safely. When Maman drove his van onto the lot while Raynoha, Young and Anderson were escaping with the money from the lot after they had robbed and executed Reynolds and Perez, they started firing directly at him and the van. The accomplices' very act of purposefully discharging their firearms numerous times at the moving van at close range while they were running, even if they did not hit it, supports the inference they were shooting with the intent to kill to facilitate their escape. From this evidence, the jury could reasonably infer that Raynoha, Young and Anderson shot at the van with the intent to kill its driver or that they had knowledge that their acts of shooting at the van would "`"to a substantial certainty,"'" result in the van driver's death. (People v. Davenport (1985) 41 Cal.3d 247, 262.) The fact that their aims may have been poor does not negate this intent or the fact a person is "randomly shooting" at another person. (Lashley, supra, 1 Cal.App.4th at p. 945.)

Thus, on this record there was substantial evidence to support a finding that Torkelson's accomplices had the specific intent to kill Maman when they shot at the van, and in turn to establish that they had committed the crime of attempted murder. Because Torkelson does not complain that the crime of attempted murder was not a reasonably foreseeable consequence of the robbery he aided and abetted, there was substantial evidence to support the jury's verdict that he was guilty of the count 3 attempted murder under the natural and probable consequences doctrine.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

HALLER, J.

IRION, J.

FootNotes


1. All statutory references are to the Penal Code unless otherwise specified.
2. Before Torkelson's trial, Raynoha entered into a cooperating agreement with the prosecution and Young was convicted of the Five Star crimes after a jury trial and sentenced to death.
3. No mention of Young's or Anderson's convictions or sentences regarding the Five Star crimes, however, was made at Torkelson's trial.
4. Telephone company records were entered into evidence showing the phone calls to Raynoha's residence from Daleo's home and also showed two phone calls were made from the Daleo residence to phone numbers where Young sometimes resided during that time.
5. Although Torkelson also notes in passing that McDonald testified about what Daleo and Getscher told him regarding Young's statements during his investigation and about the recording of the tape of the Getscher/Young conversations, no objections other than leading, argumentative or irrelevant appear on the record to those portions of McDonald's testimony.
6. Some "firmly rooted" exceptions to the hearsay rule include "(1) statements by a coconspirator during and in furtherance of the conspiracy, (1987) 482 U.S. 171, 183-184. . .; (2) excited utterances, (1992) , 356-357 . . .; and (3) statements made for purpose of obtaining medical treatment. ()" ( (2004) , 172, fn. 4 ().)
7. To the extent Torkelson also relies on cases concerning the California Constitution and section 686, to argue that he has an independent guarantee to his right to confront and cross-examine witnesses against him, those cases also predate  , and are consistent with the federal authorities regarding confrontation clause rights. ( , 534-537.)
8. Evidence Code section 1230 specifically states in pertinent part that "[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."
9. Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
10. In light of this finding, Torkelson's suggestion in his reply brief that his counsel was ineffective for failing to make appropriate objections to or seek redaction of Young's statements in the tape, has no merit. Even if there could be no satisfactory explanation for counsel's alleged failures at trial, Torkelson has not shown that a different result was reasonably probable absent those purported omissions. ( (1984) , 687-688, 697.)
11. The record reflects that the jury panel was specifically asked during voir dire whether anyone had a gut reaction about White supremacists or would convict someone just because of their beliefs in such organization. The jurors were also asked if they could be fair and impartial in determining Torkelson's guilt after hearing evidence of any connection to White supremacist activity.
12. The trial court specifically admonished the jurors, that: "You have heard evidence that the defendant may have . . . belonged to a particular association or group, or had certain beliefs. This evidence may only be considered for the limited purpose for which it was offered and not to show that the defendant is a person of bad character. You may not consider evidence of the defendant's group associations or beliefs for any purpose except as it may reflect on his relationship with the other parties or witnesses in this case. [¶] The evidence that the defendant was in a juvenile facility was offered for the limited purpose of explaining the defendant's relationship with David Raynoha, and cannot be considered by you for any other purpose."
13. Evidence Code section 210 states that: "`Relevant evidence' means evidence, including evidence relevant to the credibility of the witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
14. To the extent Torkelson also complains that the admission of his City Event's employment application was prejudicial because it contains his admission that he had a juvenile adjudication for receiving stolen property, he has waived such claim because he did not object below on other than relevancy grounds to the entire application coming into evidence. Regardless, the application was clearly relevant as to his employment status and to the investigation after the crimes, i.e., the police reviewed the application to obtain Daleo's name and number as Torkelson had listed her as his contact and a reference for his employment, and the fact of him having a juvenile criminal record was already in evidence. Contrary to his representations in his reply brief on appeal, there is no evidence in the record to show that the application contained any of the specifics of his juvenile crime that he had listed, or the fact that he had been in custody for that crime.
15. Contrary to Torkelson's generalized objection that the evidence was unnecessary to establish the nature of the relationship between him and the perpetrators because he offered to stipulate that he had known them for a long time, that they were his very close friends, and that he socialized with them at various activities and gatherings, the evidence revealed that he only had a long term relationship with Raynoha and Young and that he had just met Anderson at Getscher's home in Arizona the week before the Five Star crimes.
16. The parties stipulated that the CALJIC instructions rather than the newer CALCRIM instructions would be given in this case.
17. CALJIC No. 3.19 provides: "You must determine whether the witness was an accomplice as I have defined this term. [¶] The defendant has the burden of proving by a preponderance of the evidence that [the witness] was an accomplice in the crime[s] charged against the defendant."
18. Although Torkelson's counsel had objected that the question was also vouching, the court was not pressed to make a ruling on that ground.
19. Again, the court was not pressed to address defense counsel's additional grounds of leading, argumentative and vouching to the question.

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