1 Filed 1/22/15 P. v. Basquez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
IRVIN ALLAN BASQUEZ,
Defendant and Appellant. 2d Crim. No. B254537 (Super. Ct. No. 1432885)

(Santa Barbara County)

Irvin Allan Basquez appeal s from the judgment entere d after a jury convicted him of willful, deliberate, and premeditated a ttempted murder (Pen. Code, §§ 664, 187, subd. (a)) 1 and burglary of the first degree. (§§ 459, 460.) The jury found true allegations that appellant ha d personally inflicted great bodi ly injury (§ 12022.7, subd. (a)) and had personally used a deadly weapon (a knife). (§ 12022, subd. (b)(1).) The jury also found true one prior conviction of a serious or violent felony within the meaning of California's "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)); one prior prison term (§ 667.5, subd. (b)); and one prior conviction of a serious felony within the meaning of section 667, subdivision (a )(1). Appellant was sentenced

1 All statutory references are to the Penal Code unless otherwise stated.2 to prison for a determinate term of 10 y ears followed by an indeterminate term of 14 years to life. In his opening brief appellant states: "[ I]t was undisputed that someone stabbed the victim [Dustin Randolph] . . . . The issu e at trial was whether appellant [or another unidentified person] committed th is offense." Appellant cont ends that the trial court erroneously failed to sua sponte instruct th e jury that the testimony of an accomplice
must be viewed with caution and corroborated by other evidence. In addition, appellant contends that the court erroneously admitted evidence of a BB gun th at was found in his possession two days after the stabbing. We affirm.
Facts In January 2013 Christopher Thomas, Jarred Syslo, and Steven Sorheim were passengers in a Ford Escort that was being driven by Cameron Taylor. Taylor picked up appellant, who said that he wanted to go to Dustin Randolph's house. At trial Thomas testified that, on the way there, appellant "seemed really disturbed, like something was wrong." Thom as and Sorheim "kept sayi ng what's going on dude, what's going on?" Appellant replied, " '[J] ust take me over there, just take me over there.' " Taylor did so and pa rked the Escort at the entran ce to a cul-de-sac. It was about 7:00 p.m. Appellant got out of the ve hicle and walked alone to Randolph's house,
which was at the end of the cul-de-sac. Appellant was greeted by Randolph and then stabbed Randolph 9 times. Two days after the stabbing, Thomas to ld Detective Matt Fenske a different version of what had happened inside the Escort. Thomas said that, when appellant entered the car, he was " 'fucking livid.' " Appellant "was telling everyone in the car that he was going to take out everyone at [R andolph's] house." Appellant said, " 'I don't give a fuck. I'm going to hurt some motherfuckers over here . That's it.' " Appellant "had a semi-automatic weapon between his legs" and was "racking" the slide of the firearm back and forth. Appellant said th at "he was going to shoot them up." Thomas "was trying to talk sense into [appellant] dur ing this whole time." Upon arriving at the3 cul-de-sac where Randolph lived, appellant said : " 'I don't give a fuck. I'm going to hurt everybody in this fucking ho use.' " Appellant then " pulled out a semi-automatic handgun, racked it and stated, . . . 'I'm going to hurt all you motherfuckers.' " Thomas "wanted to leave," but an "occupant of the car that [Tho mas] could not name got out of
the car and stood in the middle of the street and said nobody was going to go anywhere." After appellant walked to Rand olph's house, Thomas he ard appellant yell, " '[W]here is my gun?' " A voice re plied, " 'Barbara has it, bitch.' " 2 Steve Sorheim, one of the passengers in th e Escort, told a deputy sheriff that he knew Randolph was a heroin dealer. "Whe n he heard that they were going to [Randolph's] house, he thought it was fo r the purpose of buying narcotics." Bobby Dean Loftin and Shawna Bagnall we re living with Randolph at the house. Randolph was Bagnall's boyfrien d, and Loftin was the owner of the house. Loftin testified that he was asleep when he heard a male voice outside call, " '[H]ey, Dustin,' " Randolph's first name. Loftin yelled to let Randolph know that someone at the front
door wanted to see him. Randolph went to the front door and star ted to open it. "Somebody pushed the door open and it hit" Randolph, knocking him to the ground. The intruder stabbed Randolph nine times. Bagnall testified: She heard a scuffle and saw "a figure hangin g over" Randolph. The figure was "dark," and she did not see hi s face. Bagnall ran to the kitchen to grab
the kitchen knives. When she returned to the front door, the intruder was gone. Randolph said appellant's name , but "he was asking [Bagnall] to call for [appellant]." Contrary to her trial testimony, on the nigh t of the stabbing Bagnall told sheriff's deputies that appellant had stabbed Randolph. Bagnall testified that she had identified appellant as the stabber because "I though t that's what Dustin had said and I was wrong." Bagnall knew appellant and had met him several time s. When the police asked

2 The question regarding the gun may have been th e motivating factor for the attack. (See, infra, p. 7.)4 Bagnall if she would be willing to testify at trial, "she indicated she had to check with
Dustin." Randolph testified: He has known appellant all of his life. Appellant is like a father to him. Prior to the stabbing, he had no problems with appellant. Randolph does not know the identity of the person who stabbed him, but he is "[a]bsolutely" certain that appellant was not the stabber. Approximately two months after the stabbing, Randolph told Deputy Sheriff Jeffrey McDonald, " 'I'm going to put him [appe llant] away for the rest of his life.' " Randolph referred to appellant by his first name, "Irv." Randolph "volunteered that everyone was telling him it was over drugs but it was just some mistak e in Irv's head." Randolph "complained to [McDonald] that he didn't want [appellant] over at his house around the time of the stabbing because he ha d just gotten out of prison and was staying clean . . . ." Randolph described how the sta bbing had occurred: " 'Irv tried to get me in
the neck and femoral.' " Ra ndolph also said that that "Irv tried to stab Shawna [Bagnall]." Randolph "then said . . . he t hought Irv was going to kill him and he was only able to stop the attack when he . . . 'smashed him in the nose and blood started pouring out.' " Deputy Mc Donald wrote in his repor t: " 'Randolph believed that [appellant] fled his residence because of th e DNA that would be left behind from his bloody nose.' "
Toward the end of the inte rview with McDonald, Rand olph "start[ed] backing away" from his previous statem ents. "[H]e made a statement that he couldn't confirm it was [appellant], that that's just what he was told." Randolph said, " 'I was in a blackout at the time the stabbing occurred.' " Randol ph also said that, "when they arrested [appellant], he assumed it must have been him because they must have found his DNA
all over the house." After the stabbing, appellant ran to the Esco rt that was parked at the entrance to the cul-de-sac. Thomas, who was inside the ca r, told Detective Fenske that he had seen appellant wipe a knife on his le g. The knife was bloody. Appellant entered the car and5 said that he had " 'booked Dus tin six or seven times.' " Th omas explained that "booked" was slang for "stabbed." Syslo told a deputy sheriff that, "[w]hen [appellant] got in the car, he said, 'go, go, go." They all drove to Nick Myer's house. Sorheim told Detective Morris that
Thomas said he had "w ashed blood off a knife" and that "he was going to help get rid of
a knife." Instruction on Accomplice Testimony Appellant asserts, "The critical factua l question in this case was whether it was appellant who stabbed Randol ph . . . ." Appellant notes that, although the four witnesses in the Escort did not see the stabbing, "they all [testified and] placed appellant at or near Randolph's house that night." Appellant argues that there is substantial
evidence that the four witn esses - Thomas, Sorheim, Sy slo, and Taylor - were accomplices. Therefore, "the trial court ha d a sua sponte duty to instruct the jury regarding accomplice testimony." "When a jury receives substantial evidence that a witness who has implicated the defendant was an accomplice, a trial court on its own motion must instruct it on the principles regarding accomplice testimony. [Citation.] This includes instructing the jury that an accomplice's testimony implicat ing the defendant must be viewed with caution and corroborated by othe r evidence. [Citations.]" ( People v. Houston (2012) 54 Cal.4th 1186, 1223.) "An accomplice is someone subject to pr osecution for the charged crimes by reason of aiding and abetting or being a memb er of a conspiracy to commit the charged crimes. [Citations.] . . . [A]n aider and abettor must act 'w ith knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the o ffense.' [Citation.] In other words, an aider and abettor of a specific intent crime sh ares the perpetrator's specific intent when he or she knows of the perpetrator's criminal purpose and aids, promotes, encourages, or6 instigates the perpetrator w ith the intent of encouragin g or facilitating the commission of the crime. [Citation.]" ( People v. Houston
, supra , 54 Cal.4th at p. 1224.)
Based on Thomas's statements to Detective Fenske there was some evidence that the four witnesses knew of appellant's crimin al purpose. Thomas said that appellant "was telling everyone in the car that he was going to take out everyone at [Randolph's]
house." We need not decide whether there is substantial evidence that any of the four
witnesses intended to facilitate the commission of th e crimes. Even if there is substantial evidence, not gi ving a sua sponte instruc tion on accomplice testimony was
harmless error.
" 'A trial court's failure to instruct on accomplice [testimony] . . . is harmless if there is sufficient corroborating evidence in the record.' [Citation.] 'Corroborating evidence may be slight, may be entirely circ umstantial, and need not be sufficient to establish every element of the charged offense.' [Citation.] The evidence is 'sufficient
if it tends to connect the defe ndant with the crime in such a way as to satisfy the jury that the accomplice is telling th e truth.' [Citation.]" ( People v. Gonzales (2011) 52 Cal.4th 254, 303.) "[ I ] n the absence of sufficient corroboration we will submit the omission of accomplice instructions to the ha rmless error analysis for state law error
under People v. Watson [(1956) 46 Cal.2d 818, 836]." ( Id ., at p. 304.) Watson "requires reversal if, after an examination of the entire case, 'it is reasonably probable
that a result more favorable to the appealing party woul d have been reached in the absence of the error.' " ( Id ., at p. 303.) "[T]he corrobo ration requirement itself is a matter of state law, not due process. [Citations.] A fortiori, when there is sufficient corroboration, the failure to give accomplice instructions does not violate due process. [Citations.]" ( People v. Felton (2004) 122 Cal.App. 4th 260, 273-274.) Here, the corroborating evidence consists of statements by Randolph and Bagnall and their housemate, Loftin. Approximately two months af ter the incident, Randolph told Deputy McDonald that appellant had st abbed him. We recognize that, toward the end of the interview with McDonald, Randol ph reversed course and "made a statement7 that he couldn't confirm it was [appellant], that that's just what he was told." Randolph said, " 'I was in a blackout at the time the st abbing occurred.' " But the jury could have reasonably concluded that Randol ph was lying. If he had been "in a blackout," he could not have remembered that "Irv tried to get [h im] in the neck and femoral." Nor could he
have remembered other details of the incident , such as that "he was only able to stop the
attack when he . . . 'smashed [appellant] in the nose and blo od started pouring out.' " In view of Randolph's close re lationship with appellant, he surely would have known whether appellant was his assailant. Bagnall testified that after the stabbing Randolph had said appellant's name but "he was aski ng [her] to call for [a ppellant]." It is
reasonable to infer that Randol ph said appellant's name beca use he recognized appellant as his assailant. Randolph needed to call for paramedics, not for appellant. Randolph's identification of appellant is supported by Loftin's statements. The night of the stabbing, Loftin to ld a deputy sheriff that he had heard Randol ph say "it [the stabber] was either Herb or Irv." Later that same night at the sheriff's station, Loftin told a detective that appellant "had stabbed Dustin because Dustin gave back a derringer gun that [appellant] had stolen from his gi rlfriend's landlord." This explains why Thomas heard appellant yell outside Randolph's house, " '[W]here is my gun?' " At trial Loftin testified that, when he heard someone outside call, "Hey, Dustin," he "thought it [the person calling] c ould have been [appella nt]," although "[i]t c ould have been a few different people." Bagnall saw the stabber. Randolph told Depu ty McDonald that " Irv tried to stab [her]." Bagnall knew appellant well. Loftin testified that he "couldn't count all the times" that appellant had visited his house in the cul-de-sac. A ppellant had "hung out with [Loftin] and Dustin and Shawna [Bagna ll]." He had even "cooked dinner for everyone at the house." On several occasi ons, he had spent the night there. On the night of the stabbing, Bagn all told sheriff's deputies that appellant had stabbed Randolph. At trial Bagnall tes tified that that she was unab le to see the stabber's face8 and did not know who he was. But the jury could have reasonably concluded that she had told the truth on the night of the stabbing. " 'Corroborating evidence may be slight . . . .' " ( People v. Gonzales
, supra , 52 Cal.4th at p. 303.) Randol ph's, Bagnall's, and Loftin's statements constitute ample corroborating evidence. Thus, any error in the trial court' s omission of the instruction on accomplice testimony was harmless. ( Id ., at pp. 303-304.) Admission of Evidence of a BB Gun Appellant maintains that the trial cour t erroneously admitted evidence of a BB gun that was "recovered from the vehicle in which he was an occupant" at the time of his arrest two days after the stabbing. Appellant concedes that "[t]he BB gun was arguably in a location where appellant c ould have possessed it, and a subsequent forensic analysis determined that it contai ned appellant's DNA." Appellant argues that evidence of the BB gun should have been ex cluded because it lacked relevance and its "prejudicial effect outweig hed any probative value." "We review for an abuse of discretion the trial court's rulings on th e admissibility of evid ence. [Citation.]" ( People v. McCurdy (2014) 59 Cal.4th 1063, 1095.)
The trial court did not abus e its discretion. Evidence of the BB gun was relevant to corroborate Thomas's and Taylor's stat ements that they ha d seen appellant in possession of a firearm on the night of the stabbing. The BB gun was a replica of a
Walther semi-automatic firearm. It had a slide that "will go back and make [a] racking sound, metal on metal." The BB gun had the "full weight" of and was indistinguishable from a real handgun. Thomas sa id that, on the way to Ran dolph's house, appellant "had a semi-automatic weapon between his legs" a nd was "racking" the slide of the firearm
"back and forth." Thomas al so said that, upon arrivi ng at the cul-de-sac where Randolph lived, appellant "pulle d out a semi-automatic handgun, racked it and stated, . . . 'I'm going to hurt all you motherfuckers.' " Taylor testified th at, when he dropped appellant off at Nick Myer's house after the stabbing, appellant pulle d a pistol out of his back pocket, "put the slider back and a bullet popped out of it."9 The trial court reasonably concluded that the probative value of the evidence of the BB gun was not substantially outweighed by its prejudicial impact. (Evid. Code, § 352.) Appellant's possession of a BB gun ha d little, if any, prejudicial impact because
evidence was before the jury that appellant had displayed a real handgun on the night of the stabbing. The BB gun mitigated the prejud icial impact of this evidence by tending to show that the handgun disp layed by appellant was not a lethal firearm but was merely a BB gun. If the trial court had erred in admitting ev idence of the BB gun, the error would
have been harmless. The ev idence against appellant was overwhelming. It is not reasonably probable that a result more favorab le to appellant would have been reached if evidence of the BB gun had been excluded. ( People v. Watson, supra , 46 Cal.2d at p. 836.) Disposition The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.10 Rogelio Flores, Judge Superior Court County of Santa Barbara

________________ ______________

Mark R. Feeser, under appointment by th e Court of Appeal for Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney Gene ral, Rma R. Maline, Deputy Attorney General, for Plain tiff and Respondent.