Filed 1/14/20 P. v. Huber CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RUSSELL JAY HUBER,

Defendant and Appellant.

D075940

(Super. Ct. No. RIF1606115)

APPEAL from a judgment of the Superior Court of Riverside, Bernard J. Schwartz, Judge. Affirmed.

Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General for Plaintiff and Respondent.

In 2014, a jury found appellant Russell Jay Huber guilty of committing first degree murder in 1992. (Pen. Code, § 187, subd. (a).) The jury also found true the special circumstance allegation that Huber committed the murder while lying in wait. (§ 190.2, subd. (a)(15).) The trial court sentenced Huber to an indeterminate term of life without the possibility of parole. Huber appeals.

Huber challenges (1) the trial court’s denial of his motion to dismiss premised on a claim of denial of due process caused by the delay of over two decades between the murder and the filing of charges accusing him of the murder; (2) the sufficiency of the evidence to support his conviction; (3) the trial court’s admission of his prior convictions for purposes of impeachment; and (4) the jury instructions given by the trial court.

As we shall explain, we reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following sections.

I. Clyde Hayward disappears

In 1991, Sheryl Baker, a nurse, began to work part-time as a personal assistant to John Nichols, a wealthy older man 20 years her senior. Over time, Nichols fell in love with Baker and asked her to marry him, but she declined. Shortly thereafter, in April 1992, Nichols suffered a heart attack and Baker believed he would die soon. Feeling a sense of compassion, Baker told Nichols that she would marry him to “give him something to live for.”

Surprising Baker, Nichols recovered and survived. Baker, who was living in Nichols’ house at the time, eventually told him that she would not in fact marry him. Nichols told Baker he was disappointed and, shortly thereafter, she moved out of his house.

Baker’s departure from Nichols’ house coincided with the beginning of her relationship with her new neighbor, Clyde Hayward. Baker and Hayward began dating in May 1992. Nichols learned of the romantic relationship between Baker and Hayward from Baker’s 14-year-old son. At the time, Hayward was employed as a golf cart mechanic.

In the same time frame, Nichols asked Baker whether she knew anyone involved in the golf cart business that could help him purchase about 100 carts for a development project in which he was involved. Baker mentioned that Hayward may be able to help facilitate the purchase given his job as a golf cart mechanic. Baker described Hayward as a man of “meager means” that could greatly benefit from being involved in such a large deal.

Baker gave Hayward’s phone number to Nichols and later overheard a phone call between the two men regarding golf carts. Hayward told Baker that he and Nichols arranged a meeting for the night of July 3, 1992. Hayward also told two other friends about the meeting. One of the friends saw Hayward in the afternoon that day and recommended he hold the meeting in a nearby restaurant at dinnertime.

Hayward told his friends that he thought the circumstances surrounding the meeting felt “weird.” He asked a friend to accompany him, but the friend was unavailable. Baker also planned to accompany Hayward to the meeting but was late returning from a trip out of town. When Baker arrived at his house that night, she found a note written by Hayward explaining that he had already left.

Baker waited at Hayward’s house, but he never returned. Baker left around midnight and did not hear from him in the following days. Baker called Nichols to see if he knew anything regarding the golf cart meeting, but Nichols denied any knowledge of a meeting. Baker grew concerned because she thought Nichols “was just seemingly lying” about the meeting. Nichols also told Baker to not contact the police and that instead he would task a friend with a background in security to investigate Hayward’s disappearance.

Baker ignored Nichols’ direction and contacted the police because she suspected Nichols was involved in Hayward’s disappearance. Baker severed her relationship with Nichols and, a month later, moved to Maryland with her son.

II. Law enforcement finds Hayward’s abandoned truck and a sign of an altercation

A couple of weeks after Hayward’s disappearance, a man found an abandoned truck, discovered a checkbook inside with the name of Hayward, and contacted law enforcement.

The truck was found approximately 150 miles from Hayward’s home in Palm Desert. The truck was in a wash adjacent to a dirt road, approximately 200 to 300 yards from the main highway. The wash area was below the level of the dirt road and the truck was in a location not visible from the highway.

The truck was towed to a nearby lot within a fenced garage parking complex. A detailed investigation revealed that the rear left tire was sliced on the side wall. The ignition was broken such that the truck could be started without a key. The truck started without problem and the transmission was functioning properly.

There were cigarette butts in an ashtray and an empty soda can inside the truck. The soda can had two fingerprints on it. The fingerprints were submitted for matching to a state database but were found to be “nonconducive” to matching. The police also found Hayward’s wallet, which contained a business card with a note written on the back that said “Has 20 electric cars. Needs fixing. Don’t run. John Nichols.”

Upon returning to the location where the truck was found, a police investigator discovered a disturbed area approximately 100 yards from where Hayward’s truck was found. The investigator observed a garden hose and pieces of a cactus that did not grow in the area but was of the same variety as other pieces of cactus found in the bed of Hayward’s truck. A series of tire tracks appeared to have been left by a rear-wheel drive vehicle that had made a “U-turn” movement back toward the highway. A second set of tire tracks did not match the first, leading the investigator to opine a second vehicle had been present.

The investigator also observed footprints that “appeared like there might have been a scuffle.” The investigator identified two distinct shoe patterns. Two spent gun shell casings were lying on the ground with what appeared to be a bullet several feet away. The bullet was covered in what the investigator believed may be blood and hair or fur. The investigator also observed an area of soil that appeared to be soaked in blood.

The investigator opined that two parallel tracks in the sand were drag marks where someone was pulled along the ground with their heels leaving the tracks. In the same area, two separate types of cigarette butts were found lying on the ground.

Subsequent testing confirmed that the substance soaked into the soil was human blood. Further analysis of the shell casings revealed that it was likely they were fired from the same gun and the bullet could have come from that same gun. Damage to the top of the bullet suggested that it hit somebody or something after it was fired.

III. A body is found in the Nevada desert

In April 1993, almost a year after Hayward’s disappearance, a married couple was walking in an isolated area south of Las Vegas, known as “Christmas Tree Pass,” when they saw what they believed to be a bone in a streambed. Christmas Tree Pass is approximately seven miles to the east of Highway 95; the same highway where Hayward’s truck was found farther to the south.

Unsure whether the bone was animal or human, the hikers contacted the police, who responded to the scene and discovered more bones. Other than the first bone, the bones were buried or under rocks.

Although two hands were discovered, analysts were unable to obtain fingerprints to identify the body. A subsequent trauma analysis of the recovered bones revealed that a fracture to the right femur occurred around the time of death. The fracture indicated a high energy impact to the leg, such as would be seen in an airplane crash, car accident, or a pedestrian-vehicle crash. No gunshot wound was visible on the recovered bones.

In 1993, DNA analysis was not prevalent in criminal investigations in Las Vegas and the remains were not tested. The body was not identified and, shortly after being discovered, buried as “John Christmas Tree Pass Doe.”

IV. Almost two decades later, new DNA testing identifies Hayward’s body and indicates Huber’s involvement.

The mystery of Hayward’s disappearance began to be solved in 2011, when the bones discovered in the Nevada desert underwent DNA analysis. The Clark County Coroner’s Office obtained a federal grant to use modern technology to solve cold cases. The case of “John Christmas Tree Pass Doe” was selected, leading to exhumation of the bones to obtain samples for DNA testing. The lab conducting the analysis obtained the bones in 2011. The results were uploaded to a national DNA database with no match.

Two years later, Hayward’s sister contacted the Riverside County Sheriff’s Office to inquire about her brother’s case. Hayward was still listed as missing and an officer recommended that the sister submit a DNA sample. She did so, along with her mother, and their samples were logged into evidence in Hayward’s file. The next year, the samples provided by Hayward’s sister and mother were matched to the DNA obtained from the “John Christmas Tree Pass Doe” body, which was now identified as Clyde Hayward.

Upon learning of the identification of Hayward’s body, the Riverside County Sheriff’s Department reopened his case. An investigator attempted first to interview Nichols, but discovered he had died years earlier. Another investigator resubmitted the fingerprints on the soda can found in Hayward’s truck for testing, which earlier were found to not be conducive to testing. This time, an examiner was able to find some that were conducive to testing, leading to a match: Russell Huber.

This was the first connection between Hayward’s case and Huber, leading to a search for more information. The Riverside investigators visited Huber’s residence in Northern California and while Huber was not present, were able to collect items with his DNA for testing.

The investigators simultaneously submitted the cigarette butts recovered from both the ashtray in Hayward’s truck and from the ground near where his truck was found for DNA testing. The DNA on the cigarette butts found both in the truck and on the ground matched the DNA recently found on Huber’s possessions.

Additional investigation revealed a connection between Huber and Nichols through a common associate. In 1987, Huber was arrested with Peter Boncore after an officer searched their vehicle and found an assault rifle, assault pistol, ammunition, and other items that could be used to hide the men’s identity.

Boncore’s name closely matched notes made by Baker shortly after Hayward’s disappearance. Baker noted the name “Peter Bonaventure” or “Peter Bonacourt” as a man she previously met at Nichols’ house that she believed might have been associated with Hayward’s disappearance.

Boncore and Nichols had previously been imprisoned in the same facility. Boncore and Huber had also worked together on Nichols’ behalf before Hayward’s disappearance. Judy Sharp, a woman working for Nichols in the period of 1991 to 1992, asked for Nichols’ help to sell some of her jewelry and expensive gowns, dresses, and furs. Nichols enlisted Boncore to arrange meetings for Sharp with potential buyers, often in Las Vegas. Boncore brought along a “bodyguard” for Sharp during her trips to Las Vegas. Huber later admitted to being this “bodyguard.”

Sharp arrived for one such meeting in her Mercedes convertible with her possessions inside. The buyer never arrived and when Sharp left the meeting, her Mercedes and the possessions were gone.

Huber’s ex-wife explained that Huber and Boncore were friends, both of whom lived in Las Vegas in 1992. She recalled a time when Huber arrived home in a Mercedes convertible and gave her a black sequined gown. Sharp identified that gown as one stolen from her inside the Mercedes. She knew that Boncore worked for Nichols, who she described as a “really bad guy.”

V. Huber denies all wrongdoing

In earlier 2017, the Riverside investigators found Huber in Northern California and interviewed him about Hayward. Huber initially denied recognizing either Hayward or his truck when shown photographs. However, after being shown a photograph of him and Boncore, he suddenly remembered that he may have driven Hayward’s truck once in Palm Springs as part of a meeting involving Boncore. Huber explained that Boncore offered him $600 to pick him up at John Wayne Airport in Orange County and drive him back to Las Vegas. Huber and Boncore stopped in Palm Springs for a meeting about golf carts on behalf of Nichols. After meeting a man in a restaurant, Huber drove the man’s truck back to his house to look at golf carts. Huber explained that Boncore asked him to drive the man’s truck because Boncore wanted to drive the other car so he would be able to find the house again if needed. Boncore and the man had a short conversation, looked at some golf carts, and then Huber and Boncore left the man at the house and drove home to Las Vegas.

Huber told the investigators that was the only time he was in the Palm Springs area with Boncore. After then being told his DNA was found on cigarette butts found both inside and outside the truck where it was abandoned, Huber continued to deny any involvement. When the investigators suggested that Hayward disappeared on the same day that Huber picked Boncore up at the airport, Huber was insistent that he left for Las Vegas when Hayward was still alive, but alluded to the possibility of another meeting on a different day.

Huber elected to testify at trial and offered a different version of events that included a second meeting with Hayward. For this second trip, Boncore picked up Huber in the Mercedes owned by Sharp, a two-seat convertible. Huber drove the Mercedes from Las Vegas to the Palm Springs area, where Boncore and Huber checked into a motel in the evening.

The next day, Boncore left alone for a meeting and, an hour and a half later, returned to the motel with Hayward. Huber was told that there had been a change of plans and the three of them were leaving for Las Vegas. Huber drove Hayward’s truck to allow Boncore and Hayward to talk on the drive to Las Vegas.

Huber followed Boncore, heading east toward Blythe. After stopping briefly in Blythe, the cars turned north toward Las Vegas on a two-lane highway. Eventually, they pulled off the highway because the truck was running “really rough.” Huber, in “agonizing pain” because the truck’s seat was broken, suggested they pull off the highway so he could take a “couple puffs” of marijuana to ease his pain. The men sat for a while to allow the truck to cool and then Boncore and Hayward left to drive to a nearby town to look for help. They returned an hour later, but the truck would still not start. Huber testified that at that point he was extremely frustrated because it was “all just falling apart” and he had to be back in Las Vegas the next day for a work event. Huber decided to leave Boncore and Hayward and walk to the nearby town, Vidal Junction, about 20 miles down the road. Huber explained he used to be a “recon raider” in the Army and was used to walking long distances. When he arrived at a convenience store, he got a ride from a “cowboy,” who drove him all the way to his home in Las Vegas.

Huber denied that he was dishonest in his earlier interview with the investigators, explaining that he did not mention the second meeting because he knew the investigators thought he was guilty. Huber admitted to three prior felony convictions. He averred that despite these convictions, everything he had said was truthful. He concluded by asserting that he did not know of any plan by Boncore or Nichols to do harm to Hayward.

DISCUSSION

I. Denial of due process by pre-charging delay

Hayward first contends the trial court erred in denying his motion to dismiss for denial of due process caused by the 24-year delay between Hayward’s murder in 1992 and the filing of the complaint charging him with murder in 2016.

“Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. In addition, “[a] claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant.” (People v. Catlin (2001) 26 Cal.4th 81, 107.)

“Under this balancing test, the trial court undertakes a delicate weighing of interests to determine whether preaccusation delay has deprived the defendant of due process: ‘[A] minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. By the same token, the more reasonable the delay, the more prejudice the defense would have to show to require dismissal.’ ” (People v. New (2008) 163 Cal.App.4th 442, 459-460.)

We review the trial court’s ruling on a motion to dismiss based on preaccusation delay for abuse of discretion, deferring to any underlying factual findings made by the court so long as they are supported by substantial evidence. (People v. Cowan (2010) 50 Cal.4th 401, 431 (Cowan).) Whether a delay was prejudicial to the defendant is a question of fact. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912.) Prejudice may not be presumed. (People v. Abel (2012) 53 Cal.4th 891, 908-909; People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)

Here, Huber supports his claim of prejudice by listing four unavailable witnesses that could have offered favorable testimony, pointing to missing evidence and the inability to gather additional evidence, and faulting the limited recollection of a witness. Although it is undisputed that some potential witnesses were unavailable at trial and the ability to collect evidence has been hampered due to the passage of time, it is less obvious that Huber has been prejudiced. Even if these witnesses were available and more evidence could be obtained, it is just as likely that the testimony and evidence would tend to inculpate Huber rather than exculpate Huber. Regardless, the trial court concluded that Huber suffered some prejudice and we see no error in this regard.

However, even assuming Huber met his burden of demonstrating prejudice, the prosecution demonstrated that the delay was entirely justifiable. As discussed above, Hayward’s body was effectively missing until 2014, when the body found decades earlier at Christmas Tree Pass was identified as Hayward. The identification of his body was largely the result on his sister’s unprompted inquiry about his case in 2013, which led to her and her mother contributing DNA samples that were subsequently used to identify his body. The identification of Hayward’s body then led to the reopening of the investigation and Huber’s identification as a suspect.

On appeal, Huber does not fault the prosecution’s delay between the identification of Hayward’s body in early 2014 and the filing of the complaint in 2016. Instead, he claims he should have been arrested and charged in 1992 based on the discovery of fingerprints on the soda can in Hayward’s truck. Huber faults the “inexplicable failure” to match that fingerprint to Huber when it was first discovered rather than two decades later.

Huber raises his due process claim under both the federal Constitution and the California Constitution. The standard for what constitutes justification for delay under the California Constitution “is at least as favorable for the defendant” as under the federal Constitution and we may apply California law to analyze Huber’s claim. (Nelson, supra, 43 Cal.4th at p. 1251.) Under the California standard, “negligent, as well as purposeful, delay in bringing charges may . . . violate due process.” (Id. at p. 1255.) Mere investigative delay, however, provides strong justification countering any showing of prejudice. (Id. at p. 1256.)

The reason for the delay as to Huber closely mirrors the circumstances considered by the Supreme Court in Cowan, supra, 50 Cal.4th 401. Following a murder in 1984, police discovered latent fingerprints at the crime scene. (Id. at p. 417.) An investigator compared the fingerprints to those of several known suspects, including the defendant, but found no match. (Id. at p. 418.) Ten years later, after the murder remained unsolved, the fingerprints were reexamined and found to match the fingerprints of the defendant, leading to his arrest. (Id. at p. 420.)

The Supreme Court in Cowan rejected defendant’s argument that his case should be dismissed due to that 10-year delay due in part to the allegedly deficient analysis of the fingerprints found at the murder scene. (Cowan, supra, 50 Cal.4th at p. 436.) The court held that there was no evidence of intentional delay or negligence. (Ibid.) Rather, the court concluded that, “at worst,” law enforcement “simply erred” and noted that while the investigation may not have been perfect, “no investigation is.” (Ibid.)

Similarly, here, there is no evidence of intentional delay or negligence. Expert testimony at trial established that it is entirely possible that where one fingerprint examiner finds a print to be conducive to matching, it is entirely possible that a different examiner would find the print to be nonconducive. Nothing in the record suggests that the different results regarding Huber’s fingerprint was the result of either intentional malfeasance or negligence. Like the situation in Cowan, the failure to identify Huber in 1992 was, at worst, mere error.

Moreover, even if we were to assume some negligence regarding the fingerprint analysis, Huber ignores that the prosecution conceded that this piece of evidence, standing alone, would have been insufficient to charge Huber with the murder of Hayward in 1992. As explained during argument before the court on Huber’s motion to dismiss, the district attorney noted that “a fingerprint on a Coca-Cola can in a car isn’t sufficient to bring any charges whatsoever.” In other words, even if Huber’s fingerprint had been correctly identified, it does not follow that he would have been charged at that time, when there was still no body or other evidence of Huber’s involvement, such that the delay would have been avoided.

“A court should not second-guess the prosecution’s decision regarding whether sufficient evidence exists to warrant bringing charges.” (Nelson, supra, 43 Cal.4th at p. 1256.) Considering the totality of the evidence, the trial court did not abuse its discretion in finding that although Huber suffered some prejudice from the delay, such delay in charging Huber was entirely justified because the prosecution of Huber hinged on the identification of Hayward’s body. The mere passage of time is insufficient to warrant dismissal of the charges against Huber and the court did not abuse its discretion in denying his motion to dismiss.

II. Sufficiency of the evidence

Huber contends the evidence was insufficient to support the jury’s verdict on both the first degree murder conviction and the special circumstance allegation. “The applicable standard of review is well settled: ‘ “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” ‘ [Citations.] ‘ ” ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ‘ [Citations.] ” (People v. Valdez (2004) 32 Cal.4th 73, 104.)

“In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ [Citation.] ” ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” ‘ ” (People v. Thomas (1992) 2 Cal.4th 489, 514.)

“[T]he relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt . . . .” (People v. Perez (1992) 2 Cal.4th 1117, 1127 (Perez). When conducting this review, “[t]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Nor may a conviction be set aside because evidence is susceptible of two reasonable inferences, one looking to guilt and another to innocence.” (People v. Lewis (1963) 222 Cal.App.2d 136, 149 (Lewis).) However, mere speculation or conjecture is insufficient to create a reasonable inference or support a finding of fact. (People v. Marshall (1997) 15 Cal.4th 1, 35.) Evidence that gives rise only to a suspicion of guilt is likewise insufficient. (Ibid.)

A. First Degree Murder

With these principles in mind, we review the evidence as applied to the charges against Huber. Viewing the entire record in the light most favorable to the prosecution, and drawing all reasonable inferences from the evidence in support of the conviction, as we must, we conclude substantial evidence supports Huber’s conviction.

Here, the prosecution alleged two theories of first degree murder, asserting Hayward’s murder was either willful, deliberate, and premeditated or committed by lying in wait. As will be discussed in depth post, the evidence supports a finding that Huber committed the murder while lying in wait. Because the special circumstance allegation contains more stringent requirements, a finding that the evidence supports the special circumstance allegation necessarily establishes that the evidence also supports the lying-in-wait theory of first degree murder. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1149.)

Additionally, we conclude the evidence supports a finding that Hayward’s murder was willful, deliberate, and premeditated. The process of deliberation and premeditation does not require any extended period of time: ” ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 767, quoting People v. Thomas (1945) 25 Cal.2d 880, 900 (Thomas); accord, Perez, supra, 2 Cal.4th at p. 1127.) The requirement of premeditation and deliberation excludes homicides that are the “result of mere unconsidered or rash impulse hastily executed.” (Thomas, supra, at pp. 900-901.)

In People v. Anderson (1968) 70 Cal.2d 15, 26-27, the Supreme Court identified three categories of evidence that are ordinarily used to establish premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. These categories provide guidance and are not intended to exclude other types of evidence, or combinations of evidence, that would also support a finding of premeditation and deliberation. (People v. Prince (2007) 40 Cal.4th 1179, 1253.) It also is not necessary that any of these categories of evidence be accorded a particular weight (People v. Sanchez (1995) 12 Cal.4th 1, 32-33), and it is not essential that there be evidence falling within each category to sustain a conviction. (People v. Romero (2008) 44 Cal.4th 386, 401.)

At the most basic level, the jury could reasonably infer that Hayward was killed the night he disappeared. On appeal, Huber does not appear to dispute this inference. The evidence also supports the conclusion that Hayward’s murder was premeditated.

The evidence supports a high level of planning involved in Hayward’s murder. As part of an elaborate ruse involving multiple actors, Hayward was led to believe he was going to a business meeting the night he disappeared. Hayward’s truck was found in a deserted area not visible from the main highway, far from his home. Shell casings and a matching bullet found nearby suggest that Hayward’s murderers brought a firearm with them. Luring Hayward to a remote area under the false pretense of a business meeting suggests the murder was planned.

There was also evidence of a motive: Baker immediately suspected Nichols was involved in Hayward’s disappearance given her decision to renege on her commitment to marry Nichols.

Although the precise manner in which Hayward was killed is unknown, Boncore and Huber moved the body to another remote location in a different state to hide Hayward’s death in an effort to avoid arrest. The moving of Hayward’s body is further evidence of a high level of planning leading up to and following Hayward’s murder.

Rather than seriously disputing that Hayward was murdered, Huber focuses his challenge on the absence of evidence establishing his involvement in that murder. As he testified at trial, he claims to have left Boncore and Hayward in the desert near the truck and denies any knowledge of what happened thereafter.

The prosecution argued Huber was guilty of first degree murder under the theories of either of aiding and abetting or conspiracy. “[A]n aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ ” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) “A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.] Aiding and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as the criminal act itself. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.)

“Evidentiary considerations which are probative of whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.” (People v. Jones (1980) 108 Cal.App.3d 9, 15.) However, mere presence at the scene of the crime and failure to take steps to prevent the crime do not, standing alone, establish aider and abettor liability. (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287.)

A criminal conspiracy requires ” ‘two or more persons agreeing to commit a crime, along with the commission of an overt act, by at least one of these parties, in furtherance of the conspiracy. [Citation.] A conspiracy requires (1) the intent to agree, and (2) the intent to commit the underlying substantive offense.’ ” (People v. Homick (2012) 55 Cal.4th 816, 870.) ” ‘ “The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.” ‘ ” (Ibid.)

The evidence supports the jury’s conclusion that Huber was directly involved in Hayward’s murder despite his testimony to the contrary. As Huber admitted, he and Boncore were friends and their meeting with Hayward was not the first instance of the two of them engaging in criminally suspicious behavior together. In 1987, Huber and Boncore were arrested together after a policeman found them sitting together in a car containing multiple firearms, ammunition, walkie talkies, gloves, and items to disguise their appearance. Shortly before their meeting with Hayward, Boncore and Huber worked together, and in connection with Nichols, to steal items from Sharp, including an expensive dress that Huber gave to his wife.

Huber then drove the car stolen from Sharp to the meeting with Hayward. He then switched to driving Hayward’s truck into the desert, which demonstrates his direct assistance in luring Hayward to a remote location where he could be murdered and aiding in the hiding of the truck to evade discovery.

The evidence also strongly supports the inference that Huber was present at the scene of the murder. Huber’s DNA was found on a cigarette butt inside Hayward’s truck, which Huber also admitted to driving into the desert. Huber’s DNA was also on a cigarette butt found on the ground outside the truck, in the same area where markings in the soil and blood on the ground indicated an altercation had occurred.

Huber’s actions after the shooting also support the interference that he intended to aid and abet the shooting. After Hayward’s murder, Huber did nothing to report Hayward’s death to law enforcement or to distance himself from Boncore. Instead, Huber remained friends with Boncore for at least several months after Hayward’s murder.

When Huber was questioned by the police, he offered three different versions of events, suggesting a continued attempt to evade responsibility and protect Boncore. When he was first questioned, he admitted to meeting Hayward with Boncore on one occasion, but denied he ever returned to the area with Boncore for a meeting and specifically denied any contact with Hayward’s truck. He then changed his story to suggest that his DNA was on a cigarette butt at the crime scene because Boncore planted the evidence. At trial, he then changed his story again to admit to being present at the crime scene, but claimed to have left before anything happened to Hayward. He claims that he left Boncore and Hayward alone and hiked 20 miles across the desert in the middle of the night to reach a convenience store, where he was able to then hitchhike back to Las Vegas. The jury disregarded this inherently implausible version of events.

Viewing the record as a whole, the evidence, either directly or via inferences reasonably drawn from the evidence, establishes that the jury could have reasonably concluded that Huber aided and abetted the murder of Hayward. He drove Boncore, a close friend he knew was engaging in criminal behavior on behalf of Nichols, to the purported business meeting with Hayward, drove Hayward’s truck to a remote, hidden area of the desert, was present at the scene of the murder, and afterward remained friends with Boncore and offered contradictory versions of events to law enforcement to evade arrest. Although the evidence is silent on the precise manner in which Hayward was killed and the record does not establish whether Huber or Boncore was the direct perpetrator, these unanswered questions do not undermine the jury’s verdict. “Under these circumstances, it is immaterial that the evidence was silent as to which defendant actually [killed the victim]; it is virtually inconceivable that the one who did not [kill] him did not aid and abet the shooting.” (People v. Allen (1985) 165 Cal.App.3d 616, 626.)

B. Special circumstance of lying in wait

Huber also contends that there is insufficient evidence to support the true finding of the special circumstance allegation of killing while lying in wait (§ 190.2, subd. (a)(15)) . We apply the same standard of review in considering circumstantial evidence and the support for special circumstance findings as we apply in reviewing the sufficiency of the evidence to support a conviction. (People v. Gonzales (2012) 54 Cal.4th 1234, 1273.)

” ‘ “The lying-in-wait special circumstance requires ‘an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. . . .’ [Citations.]” ‘ [Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1073 (Mendoza).) ” ‘ ” ‘The element of concealment is satisfied by a showing ” ‘that a defendant’s true intent and purpose were concealed by his [or her] actions or conduct. It is not required that he [or she] be literally concealed from view before he [or she] attacks the victim.’ ” ‘ [Citation.]” ‘ [Citation.] As for the watching and waiting element, the purpose of this requirement ‘is to distinguish those cases in which a defendant acts insidiously from those in which he [or she] acts out of rash impulse. [Citation.] This period need not continue for any particular length ” ‘of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.’ ” [Citation.]’ [Citation.] ‘The factors of concealing murderous intent, and striking from a position of advantage and surprise, “are the hallmark of a murder by lying in wait.” [Citation.]’ [Citation.]” (Ibid., fn. omitted.)

The evidence supports the jury’s finding on the special circumstance allegation. As already discussed, the jury could reasonably conclude that Hayward was intentionally murdered by Huber and Boncore. The evidence also establishes that Boncore and Huber concealed their true purpose by luring Hayward to an isolated location under the pretense of a business meeting about golf carts. By promising a potentially lucrative business meeting, Huber and Boncore’s “true intent and purpose were concealed” even though they did not literally conceal themselves from view. (Mendoza, supra, 52 Cal.4th at p. 1073.)

There was also a substantial period of watching and waiting. This element “requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one’s purpose, and wait and watch for an opportune moment to attack.” (People v. Bonilla (2007) 41 Cal.4th 313, 333.) Here, Boncore and Huber drove Hayward 150 miles into the desert, which would take at least two hours, before attacking and murdering him. The time spent on this drive is sufficient to establish a period of watching and waiting.

Huber challenges the sufficiency of the evidence to establish the “temporal connection between the period of watchful waiting and the killing.” He relies on Domino v. Superior Court (1982) 129 Cal.App.3d 1000, which found the lying-in-wait special circumstance is not established when there is a “cognizable interruption” between a surprise kidnapping and a subsequent killing. (Id. at pp. 1011-1012.) Similarly, in People v. Lewis (2008) 43 Cal.4th 415, the Supreme Court found that the special circumstance was not established when “[t]he defendants accomplished the forcible kidnapping of each victim while lying in wait, but then drove the still living victims around in their cars for periods of one to three hours, while withdrawing money from the victims’ bank accounts, before killing them.” (Id. at p. 514.)

Although not expressly stated, Huber appears to believe that the evidence does not establish that Huber and Boncore concealed their true purpose until they reached their destination in the desert, where they then attacked Hayward. Instead, as the Attorney General notes, Huber appears to believe it is equally possible that Huber and Boncore kidnapped Hayward in Palm Desert and then, with a substantial temporal interruption, drove him to the desert to kill him.

While it is certainly possible that Huber and Boncore’s period of watching and waiting ended while they were still in Palm Desert, and therefore hours before Hayward’s eventual murder, that possibility does not require a reversal. ” ‘ ” ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ‘ ” (People v. Jones (2013) 57 Cal.4th 899, 961.) “Nor may a conviction be set aside because evidence is susceptible of two reasonable inferences, one looking to guilt and another to innocence.” (Lewis, supra, 222 Cal.App.2d at p. 149.)

Here, the jury was instructed that the special circumstance allegation required that “the attack must begin at and flow continuously from the moment of concealment and watchful waiting ends. If there is a detectable interval between the period of watching and waiting and the period during which the killing takes place, then the murder is not committed while lying in wait.”

Thus, the jury necessarily found that the attack began when the moment of concealment and watchful waiting ended. The evidence, viewed in the light most favorable to the prosecution, supports this finding. If nothing else, Huber himself testified that Hayward was told that the plans had changed and the meeting now needed to be moved to Las Vegas. Under this version of events, the concealment continued while Hayward, believing that the business meeting was still occurring, was driven to the desert, where he was attacked.

Other evidence supports this version of events. An investigator observed two sets of footprints near where Hayward’s truck was found that appeared to be the result of a “scuffle.” The jury could reasonably find that because a fight occurred in the desert, the attack on Hayward occurred then and not earlier in the evening.

Accordingly, the jury could have relied on the evidence at trial to draw the reasonable inference that Huber and Boncore concealed their purpose by leading Hayward to believe he was participating in a business meeting, concocted a narrative to lead him to drive into the desert with them, and then launched a surprise attack on the outnumbered Hayward in a location hidden from public view. This version of events supports the true finding on the special circumstance of committing murder while lying in wait. Substantial evidence therefore supports Huber’s conviction.

III. Admission of Huber’s prior convictions for purposes of impeachment

Huber also challenges the trial court’s ruling regarding the admissibility of his prior convictions for purposes of impeachment. Prior to trial, the court denied his motion in limine to exclude evidence regarding his prior convictions in 1983, 1987, and 2002, if he chose to testify. During his direct examination, he preempted the prosecution’s questions on cross-examination by admitting these convictions. The court immediately instructed the jury that it must consider this evidence “only in evaluating the credibility of [Huber’s] testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”

We review the trial court’s evidentiary ruling for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655.) Applying this standard of review, we do not substitute our judgment for that of the trial judge and will not disturb the trial court’s ruling “unless it appears the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)

Pursuant to the California Constitution, “[a]ny prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” (Cal. Const., art. I, § 28, subd. (f), par. (4); see also Evid. Code, § 788 [“For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony.”].) As explained by our Supreme Court, however, this broad evidentiary standard is governed by two principal constraints.

First, the Supreme Court explained in People v. Castro (1985) 38 Cal.3d 301 (Castro) that the due process clause of the Fourteenth Amendment limits the admissibility of prior felony convictions to only those that support an inference of the witness’s “readiness to lie.” (Id. at pp. 314-315.) To meet this standard, the court in Castro held that the prior felony conviction must involve a crime of “moral turpitude.” (Ibid.) Second, even if the prior conviction involves moral turpitude, its admissibility is subject to exclusion under Evidence Code section 352 if the court concludes that its probative value on the issue of credibility is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. (Castro, at pp. 312-313; see also People v. Collins (1986) 42 Cal.3d 378, 381 (Collins).)

In exercising its discretion under section 352, a trial court should consider several factors, including whether the prior conviction (1) “reflects on honesty and integrity;” (2) is “near or remote in time;” (3) “was suffered for the same or substantially similar conduct for which the witness-accused is on trial;” and (4) “what effect admission would have on the defendant’s decision to testify.” (Castro, supra, 38 Cal.3d at p. 307.) These factors are not “rigid standards” that must be applied, but are merely suggested factors to be considered. (Ibid.; see also People v. Beagle (1972) 6 Cal.3d 441, 453; People v. Green (1995) 34 Cal.App.4th 165, 182.)

Applying this analysis here, we see no abuse of discretion by the trial court. Huber’s California convictions for taking a vehicle without the owner’s consent (Veh. Code, § 10851) and being a felon in possession of a firearm (Pen. Code, § 12025) are both crimes of moral turpitude. (People v. Rodriguez (1986) 177 Cal.App.3d 174, 178 [taking of a vehicle]; People v. Littrel (1986) 185 Cal.App.3d 699, 703[felon in possession of a firearm].) Similarly, his 2002 conviction for the crime of “coercion” in Nevada bears similarities to the crime of robbery, which is a crime of moral turpitude. (See, e.g., People v. Brown (1985) 169 Cal.App.3d 800, 805.) Huber does not contest this fact.

Huber contends the court erred in finding that the convictions were not remote in time by comparing the dates of the convictions to the date of the murder in this case rather than the date of his testimony. Even accepting this argument, however, any remoteness of the prior convictions does not render the convictions conclusively inadmissible. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) “Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior.” (Ibid.) Huber’s intervening convictions render the most remote conviction to still be probative on the issue of honesty and credibility. (Ibid.)

The other two factors, considering whether the prior convictions were suffered for the same or substantially similar conduct for which Huber is on trial and the effect on his decision to testify, are not at issue in this case. Considered altogether, the factors considered by the trial court support its conclusion that Huber’s prior convictions were admissible for purposes of impeachment.

Moreover, even assuming the court abused its discretion in admitting Huber’s prior convictions, any error was harmless. The admission of prior convictions for impeachment is reviewed under the familiar standard of People v. Watson (1956) 46 Cal.2d 818, 836, which requires us to determine whether it is reasonably probable the defendant would have obtained a more favorable result absent the admission of the prior conviction. (Collins, supra, 42 Cal.3d at p. 391, fn. 12; People v. Williams (2009) 170 Cal.App.4th 587, 612.)

Here, as already discussed, the evidence of Huber’s guilt was clear such that the introduction of these prior convictions was of not such weight as to sway the jury. Additionally, one of Huber’s prior convictions—his 1987 conviction for being a felon in possession of a firearm—was discussed in depth by the arresting officer for purposes of establishing the relationship between Huber and Boncore and Huber’s knowledge of Boncore’s criminal history. Thus, regardless of the trial court’s ruling on the use of Huber’s prior convictions for the purpose of impeachment, evidence regarding at least one of those convictions would have been heard by the jury. We see no reason to conclude that the introduction of the two other offenses was of such importance that the jury would have reached a different result but for hearing of those convictions.

Additionally, the court instructed the jury it could not consider the fact of the convictions for any purpose other than evaluating Huber’s credibility. Absent evidence to the contrary, we presume the jury understood and followed the court’s instruction to consider this evidence only for the purpose of evaluating credibility and, therefore, Huber was not prejudiced. (See, e.g, People v. Williams, supra, 170 Cal.App.4th at p. 613.)

IV. Instructional error

Huber raises two claims of instructional error. He first claims the jury instruction regarding motive improperly allowed the jury to determine guilt only upon the presence of a motive and shifted the burden of proof to Huber to show the absence of a motive to establish his innocence. He also claims three jury instructions regarding consciousness of guilt were duplicative, unnecessary, impermissibly argumentative, and permitted the jury to make irrational inferences to establish guilt. Neither of these claims is persuasive.

” ‘In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instructions in a manner that violated the defendant’s rights.’ [Citation.] We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction.” (People v. Smith (2008) 168 Cal.App.4th 7, 13.) ” ‘Errors in jury instructions are questions of law, which we review de novo.’ ” (People v. Fenderson (2010) 188 Cal.App.4th 625, 642.)

First, Huber contends the court erred in instructing the jury on motive pursuant to the pattern jury instruction, CALCRIM No. 370. The precise contentions raised by Huber have been repeatedly rejected by the Supreme Court. (People v. Howard (2008) 42 Cal.4th 1000, 1024; People v. Cleveland (2004) 32 Cal.4th 704, 750.) Huber does not attempt to distinguish, let alone acknowledge, the Supreme Court opinions on these issues. As an intermediate appellate court, we are required to follow Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Next, Huber challenges three instructions concerning consciousness of guilt that were given as requested by the prosecution and over Huber’s objection. The first, CALCRIM No. 362, concerns false or misleading statements:

“If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt.

“If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”

The second instruction, CALCRIM No. 371, concerns the suppression and fabrication of evidence:

“If the defendant tried to hide evidence against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”

The third instruction, CALCRIM 372, concerns a defendant’s flight from the crime:

“If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”

Huber contends these instructions were duplicative of the instructions regarding circumstantial evidence and unduly argumentative. These contentions have also been rejected by the Supreme Court regarding similar instructions and we see no compelling reason to reach a different conclusion. (People v. Henriquez (2017) 4 Cal.5th 1, 33-34; see also People v. McGowan (2008) 160 Cal.App.4th 1099, 1103-1104.) Similarly, his contention that these instructions permitted the jury to make irrational, and therefore improper, permissive inferences has been repeatedly rejected by California courts. (People v. Bacon (2010) 50 Cal.4th 1082, 1108; People v. Nakahara (2003) 30 Cal.4th 705, 713.) We decline Huber’s invitation to follow decisions from other jurisdictions involving similar instructions by disregarding our own Supreme Court’s decisions.

DISPOSITION

The judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.