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Name: People v. Carrillo
Case #: B199656
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 06/09/2008

The trial court did not err when it refused to compel the attendance of witnesses from Mexico. During his murder trial, Carrillo unsuccessfully sought to have the prosecutor and the trial court help him obtain evidence or secure the trial attendance of witnesses who lived in Mexico and could not be compelled to testify. According to the defense, one witness was present when the victim was shot and heard a dying declaration that the shooter was someone else. The trial court denied appellant’s motions, and the appellate court affirmed the denial. Carillo’s motion was not supported by evidence. There was no evidence which explained the witnesses’ immigration status, showed that any steps had been taken to obtain their visas, or show that their attendance would not be possible without the requested court orders. Also, the motion did not cite or discuss the applicable immigration provisions.
The trial court’s error in failing to instruct the jury with CALJIC No. 3.41 was harmless. The jury also found true an allegation pursuant to section 12022.53 for use of a firearm causing great bodily injury or death. Carrillo contended that the court erred by failing to sua sponte instruct the jury with CALJIC No. 3.41, which could have resulted in the jury finding the allegation true based solely on the acts of any coperpetrators without determining that his conduct proximately caused the death. The appellate court agreed that the trial court erred, but found the error harmless beyond a reasonable doubt. Even if the error occurred it was not prejudicial if the jury found the missing element true under other instructions. Here, when the jury found Carrillo guilty of murder, it found that he proximately caused the death. Regardless of whether they found Carillo guilty of firing the fatal shot or aiding and abetting the murder, he was still a proximate cause of the death. Therefore the jury could not have misunderstood the instructions in a way that would have resulted in finding proximate causation on an improper basis.
The court’s failure to give a flight instruction was harmless error. Several witnesses saw Carrillo running from the scene, but the court did not instruct the jury with CALJIC No. 2.52 regarding flight from a crime scene. The appellate court found the failure to instruct harmless error because the evidence of Carrillo’s guilt rested primarily on eyewitness identification and statements about participation in the crime, not on his flight from the scene.
Appellant was not denied effective assistance of counsel due to a conflict of interest. Carrillo also contended that his trial lawyer, had a conflict of interest because he was also representing the son of a witness. The appellate court rejected the argument, finding that there was no evidence that the witness’s testimony was influenced by her son’s arrest. The record shows that trial counsel cross examined the witness vigorously. The conflict, if there was one, did not affect counsel’s performance, so reversal was not required.