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The People v. Arthur F. Appling


December 16, 2010


The opinion of the court was delivered by: Siggins, J.

P. v. Appling



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Arthur F. Appling, Jr. and Mario E. Matthews appeal their jury convictions for murder and attempted second degree robbery, following a joint trial where each of them blamed the other and claimed duress. Appling contends the instructions prevented the jury from fairly evaluating his testimony that Matthews threatened to shoot him if he did not participate in the robbery. We conclude the combined effect of the instructions constituted prejudicial error, and reverse Appling's conviction.

Matthews challenges the racial composition of the jury, the denial of his severance motion, admission of prior testimony by a prosecution witness, exclusion of certain evidence regarding Appling's juvenile misconduct and alleged jailhouse communications, alleged prosecutorial misconduct, additional jury instructions issues, and cumulative error. We conclude all but one of Matthews's claims of error lack merit, and any error was harmless. We therefore affirm Matthews's conviction.


Early one evening, Eli Griffin walked from his apartment to a nearby mini-mart. He was shot and killed in the parking lot of his apartment building while on his way home. He was found with approximately $20 in his pocket. A wig and a nine-millimeter shell casing were also found at the scene. A pathologist determined that he was shot in the chest from at least 18 inches away. Griffin also had scratches and bruising on the right side of his neck that occurred before or close to the time of his death.

Appling and Matthews were jointly charged with murder and attempted second degree robbery. Matthews was also charged with firearm enhancements on the murder count. The trial revealed the following facts surrounding Griffin's killing.

The afternoon of the murder, Blanca Vigil and her friend Rachel Campos, who lived next door to Matthews, were with a group of people in front of Campos's house. Matthews and Appling were there. Matthews was drinking and acting "hyperactive," and had a black handgun. Both Campos and Vigil testified they saw Matthews with the gun. Some of the people, including Matthews and Appling, were taking turns wearing a mask and wig.

Campos and Vigil decided to drive to get some fast food, and Matthews and Appling asked for a ride. Vigil drove her orange Dodge Neon, with Campos in the front passenger seat and Matthews and Appling in the back. At Matthews's request, Vigil stopped at his friend's house and where Matthews's mother worked so he could get money from her.*fn1 Once the group got some food, Matthews wanted to go to a liquor store to buy alcohol, so Vigil drove to a nearby mini-mart. Matthews went inside the store while the others waited in the car.

Campos and Vigil could see Matthews through the store window trying to get Appling's attention. When Matthews entered the store, the owner of the mini-mart was waiting on Griffin. The owner had known Matthews "since he was [a] little kid," and saw him standing right behind Griffin, peering over his shoulder and singing, "I'm going to get paid tonight."

Matthews returned to the car and told Appling they should rob the man in the store because he had a wad of money. Appling refused to go and told Matthews to get back in the car. Matthews returned to the store and, in order to get behind Griffin, cut in front of several other customers. When Griffin left the store carrying a bag, Matthews followed him.

Matthews returned to Vigil's car and told Appling they should "get this guy [and] get that money." Despite his initial reluctance, when Matthews tugged on Appling's shirt, he got out of the car and followed Matthews toward Griffin's direction.*fn2 Vigil was fairly certain the two men were going to rob Griffin, and Campos had a bad feeling about what was going to happen.

Juan Carlos Escobar was an employee of the mini-mart who also observed Matthews while he was in the store. Escobar was concerned that something might happen, and watched Griffin when he left to see where he was going. Escobar saw Matthews and a companion who got out of an orange car walk out of sight in Griffin's direction. Within five minutes, Escobar heard a gunshot.

Vigil left the mini-mart and was on her way back to Campos's house when she saw Matthews and Appling on the street. They flagged her down, got back into the car, and returned to their neighborhood.

Vigil was interviewed by police approximately three weeks after Griffin's murder. She told police that after Matthews and Appling got back into the car, Appling said, "I was holding him, you should have done it," and "You should have got into his pocket and took his money."

Campos testified that Matthews was upset at Appling after the men returned to the car, and he told Appling, "I should have done it myself." Matthews asked Appling, "Did you get the booze?" and Appling said he left it by the railroad tracks. Campos heard someone say, "Why didn't you do it," or "You should have just got in his pockets." She also told police that Matthews said he would have given each person in the car $500 if they had gotten Griffin's money.

Matthews did not testify. But when he was interviewed by police after Griffin was killed, Matthews claimed Appling always carried a gun. In closing argument, Matthews's lawyer told the jury he acted under duress from Appling, and was so intoxicated he could not form the specific intent for attempted robbery. His lawyer sought to portray Matthews as naive and childish, and suggested he was manipulated by Appling, who was cold and calculating.

Appling presented the testimony of defense investigator Vincent Ghiringhelli to support his claim that it was he who acted under duress. Ghiringhelli interviewed Vigil, and she told him that Matthews appeared intoxicated and possibly under the influence of drugs that afternoon. Vigil thought he was demanding, confrontational, and out of control. Matthews was dancing that afternoon while wearing a mask and wig, raised a gun in the air, and said, "I have a full clip and one in the chamber. I'll shoot somebody. I don't care." Vigil told Ghiringhelli that Matthews became more demanding and aggressive as he asked her to drive from one place to another, and at times she was frightened of him.

Vigil told the investigator that when he first came out of the mini-mart, Matthews told Appling the man inside had $2,000. Appling told Matthews to "Just get back in the car." Instead, Matthews returned to the store. When Matthews came out again he told Appling, "Man, he's got money on him. He just bought a hundred dollar bottle of Moet." Matthews talked about committing a robbery, but Appling said he did not want to participate and told Matthews to get back in the car. When Matthews tried to pull Appling out of the car by his coat sleeve, the two men took off their jackets and exchanged words. Vigil could not hear what they were saying, but she said Appling "was standing there with his head hung down." When the two men got back in the car for the ride home, Matthews was yelling at Appling and said Griffin had pulled out a gun but they had beaten him.

Appling testified in his own defense. He said he walked to Campos's street looking for a ride to his mother's house. Appling was acquainted with Matthews and when he heard Matthews was getting a ride from Vigil, he asked for a ride too. When they stopped at the house of Matthews's friend, Appling saw Matthews flash a gun at an older man. Appling got back in the car because he did not want to be around a gun. When they stopped at Matthew's mother's place of employment, Matthews got a wig out of a truck.*fn3 On the way to the mini-mart, Matthews was acting loud and obnoxious, and was talking fast. When Matthews first came out of the store, he told Appling a man inside "had hecka money on him and he bought [a] $100 liquor bottle." Matthews wanted to rob the man, but Appling said, "you trippin," and told Matthews to get back in the car.

When Matthews came out of the store a second time, he opened the car door and told Appling, "Let's rob this guy." Appling declined, but Matthews was persistent and tugged on Appling's shirt, so he stepped out of the car. Matthews told Appling he would shoot him if Appling did not go along with the robbery. Appling thought the threat was serious because he had previously seen Matthews with the gun. So, Appling followed Matthews, fearing he would be shot if he tried to run.

Matthews covered his face with a mask and wig, ran up behind Griffin, and bear-hugged him while holding a gun in his left hand. As they struggled, Griffin dropped his bag. Matthews told Appling to pick it up, and he did. When Matthews told Appling to check Griffin's pockets, Appling instead ran across the railroad tracks, where he dropped Griffin's bag.*fn4 Around that time, Appling heard a shot. As Appling and Matthews were running away, they saw Vigil and Campos and got back into the car. Matthews yelled at Appling for not going into Griffin's pockets, and Appling told Matthews he did not want to be involved. Vigil drove back to Campos's house and Matthews warned Appling not to say anything or he would shoot him.

During cross-examination, Appling acknowledged he did not tell Vigil, Campos, his mother, his aunt, or one of his friends that Matthews had threatened to shoot him. When he was arrested for murder, although Appling expressed shock and denied responsibility, he did not tell police that Matthews made him do it. Appling denied that he recognized Griffin at the mini-mart or that he ever told Matthews there was a price on Griffin's head.

As part of his defense, Appling's counsel played for the jury a videotape of Matthews's interview with police approximately a week after Griffin was killed.*fn5 Matthews said that Appling told him to grab Griffin and get his money. Matthews grabbed Griffin around the neck from behind, but he refused to take Griffin's money. He instead let Griffin go, and when Griffin looked like he was about to "pull out something . . . that's when the dude shot him."*fn6 Matthews first said Appling told him "somebody had put a hit out on [Griffin]," but he later said they were "just trying to rob him." Matthews also said Appling was wearing a wig when he shot Griffin.*fn7

Matthews told police that Appling always carried a black nine-millimeter gun with a brown handle, and he knew Appling had it the night Griffin was killed. Matthews said "the guy told me to grab the dude, and if I don't grab him, he was gonna shoot me." Matthews claimed he did not know until the next day that anyone was shot. When Appling looked at the newspaper he bragged to Matthews, "Somebody got killed in the apartments. I guess I hit him." Matthews did not remember some of the things that happened on the day of Griffin's killing because he was high on cocaine. In the middle of the police interview, he tore up some of the detective's notes. During closing argument, Appling's counsel argued that Appling acted under duress because Matthews told him, "you're going to do what I tell you to do or I'm going to shoot you."

The jury convicted both men of murder and attempted robbery, but could not reach a verdict on the firearm allegation against Matthews, and it was dismissed on the prosecutor's motion. The court sentenced each man to 25 years to life in prison for the murder and stayed the term for the robbery. We granted the Attorney General's motion to consolidate the two timely appeals.


A. Appling's Challenge to the Jury Instructions on Accomplice Testimony

Several of the trial court's instructions to the jury addressed its consideration of testimony from an accomplice of the defendant. The form of CALCRIM No. 301 read to the jury stated: "Except for the testimony of Rachel Campos, Blanca Vigil and Arthur Appling, which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." The form of CALCRIM No. 335 that was read stated, in part, that: "If the crimes of attempted robbery and murder were committed, then Arthur Appling was an accomplice to those crimes. You may not convict the defendant of attempted robbery or murder based on the testimony of an accomplice alone."*fn8

Appling contends these two instructions "told the jurors [his] testimony was insufficient to prove any fact without supporting evidence, needed corroboration and had to be viewed with caution, thereby undermining [his] duress defense based on his testimony that co-defendant Matthews threatened to shoot him if he did not assist in the robbery of the victim."*fn9 We agree.

"In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights." (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.) "Whether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 103; accord, People v. Whisenhunt (2008) 44 Cal.4th 174, 214.)

The Bench Notes to CALCRIM No. 335 provide the following clear guidance: "Give this instruction only if the court concludes that the witness is an accomplice as a matter of law or the parties agree about the witness's status as an accomplice. . . . If there is a dispute about whether the witness is an accomplice, give CALCRIM No. 334 . . . ," which instructs the jury to first determine whether the witness was an accomplice, and then to evaluate the witness's testimony based upon its determination. (Judicial Council of Cal., Crim. Jury Instns. (Apr. 2010 supp.) Bench Notes to CALCRIM No. 335, p. 19, citing People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161 [only give instruction " 'if undisputed evidence established the complicity' "].) In this case, Appling disputed that he was an accomplice, and the court should have given CALCRIM No. 334 (as it did with regard to the testimony of Vigil and Campos), instead of CALCRIM No. 335.*fn10

The Bench Notes to CALCRIM No. 335 further specify: "When the witness is a co-defendant whose testimony includes incriminating statements, the court should not instruct that the witness is an accomplice as a matter of law. (People v. Hill (1967) 66 Cal.2d 536, 555.) Instead, the court should give CALCRIM No. 334 . . . informing the jury that it must decide whether the testifying co-defendant is an accomplice. In addition, the court should instruct that when the jury considers this testimony as it relates to the testifying co-defendant's defense, the jury should evaluate the testimony using the general rules of credibility, but if the jury considers testimony as incriminating evidence against the non-testifying co-defendant, the testimony must be corroborated and should be viewed with caution. (See People v. Coffman and Marlow[, supra] 34 Cal.4th [at p.] 105.)"*fn11 (Bench Notes to CALCRIM No. 335, supra, p. 19.) The Attorney General contends the Bench Notes are incorrect because they are based upon People v. Hill, which includes dictum that is arguably inconsistent with current law that requires accomplice instructions to be given when a co-defendant's testimony tends to incriminate another defendant.*fn12 (See People v. Coffman and Marlow, supra, at pp. 104-105, citing People v. Alvarez (1996) 14 Cal.4th 155, 217-218.) But the Bench Notes to CALCRIM No. 335 explicitly recognize that accomplice instructions are to be used in such circumstances. (Bench Notes to CALCRIM No. 335, supra, p. 19 ["If a co-defendant's testimony tends to incriminate another defendant, the court must give an appropriate instruction on accomplice testimony"].) Moreover, the issue here is the specific form of the accomplice instructions given by the trial court, not whether any should have been given at all.

The Attorney General also seeks to justify the use of CALCRIM No. 335 in two ways that are fine in isolation, but do not persuade in context in light of CALCRIM No. 335's combination with CALCRIM No. 301. The Attorney General says this case can be distinguished from People v. Hill on the basis that the testimony in Hill constituted a judicial confession to the charged crimes. Here, Appling and Matthews each denied responsibility. So, the Attorney General argues, since neither of the defendants confessed, there was no danger the jury would impute guilt to Appling simply because he was described as an accomplice to the crimes. The Attorney General's other argument is that the jury would have properly understood CALCRIM No. 335 to apply to Appling's testimony that incriminated Matthews, and not to his testimony in his own defense. As sound as these arguments may be about the use of CALCRIM No. 335, they do not address its effect when used in combination with CALCRIM No. 301. Together, these instructions required the jury to consider and treat Appling as an accomplice. His legal status as an accomplice is irreconcilable with his claim that he was not guilty because he acted under duress. (See People v. Anderson (1968) 264 Cal.App.2d 271.)

Moreover, the jury could also have viewed Appling's testimony that Matthews threatened to shoot him as evidence that tended to incriminate Matthews, and was therefore to be viewed with caution under CALCRIM No. 335. There is a reasonable probability that the combined effect of CALCRIM Nos. 301 and 335 led the jury to conclude Appling's claim that Matthews threatened him at gunpoint required independent corroboration. Neither instruction was warranted by the state of the evidence, and in combination they constitute error. For all practical purposes, their combined effect reasonably led the jury to conclude that all of Appling's testimony required corroboration.

The Attorney General contends any error was harmless because there was sufficient corroborating evidence in the record. But none of the evidence cited by the Attorney General independently corroborates Appling's testimony that Matthews threatened him with the gun. Even the Attorney General argues later in its brief that other than Appling's own testimony, "there was no basis for the jury to find that Appling believed his life would be in immediate danger if he refused to participate in the crimes." The prosecutor also relied on the erroneous jury instructions to discount Appling's testimony that Matthews threatened him by emphasizing to the jury in closing, "Isn't it convenient that the only existence of any evidence in this case of any threat made by Mr. Matthews to Mr. Appling is through . . . Mr. Appling's mouth . . . . It's only Mr. Appling, totally unsupported, uncorroborated." Nor can we say the evidence of Appling's guilt was so strong as to render the instructional errors harmless. His conviction must therefore be reversed.*fn13

B. Wheeler/Batson Claim

Both defendants contend the trial court erred when it denied Matthews's motion under People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79, challenging the peremptory challenges to two African-American prospective jurors based on alleged group bias.

"The law applicable to Wheeler/Batson claims is now familiar. 'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." ' " (People v. Mills (2010) 48 Cal.4th 158, 173, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.) " '[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court's ruling. Because Wheeler motions call upon trial judges' personal observations, we view their rulings with "considerable deference" on appeal. [Citations.] If the record "suggests grounds upon which the prosecutor might reasonably have challenged" the jurors in question, we affirm.' " (People v. Mayfield (1997) 14 Cal.4th 668, 723.)

During jury selection, the prosecutor used his third peremptory challenge to excuse a prospective juror who said she worked as a cashier at a large retail business and had previously worked as a customer service representative at a bank. The prosecutor used his fifth peremptory challenge to excuse another juror who was a retired home health aide.*fn14 Defendants raised a Wheeler/Batson objection, and argued that these two African-American prospective jurors must have been excused because of race because there was no obvious bias that would justify their exclusion.*fn15 The court stated "I don't see that it was identifiable such that [it] would even constitute a prima facie case," but allowed the prosecutor to state his reasons on the record if he so wished.

The prosecutor then explained that as to the first excused juror, he found "a lot of times clerks just lack the overall life experience and work experience to make serious decisions," and noted that he excused two other prospective jurors for the same reason. As to the second excused juror, the prosecutor explained he had never before seen a prospective juror "come to court and have a Holy Bible about this big and latched on to it," and he was "not real comfortable with overtly religious people on my juries anyway." The prosecutor also said that he typically rejected prospective jurors from "helping" professions such as health care workers.*fn16 The prosecutor added that he intended to keep several other minority prospective jurors, and said his reasons for excluding the challenged jurors were neutral.*fn17 The court observed that it also noticed the juror who brought her Bible with her to court, and the prosecutor's reasons satisfied the court there was no Wheeler/Batson violation.

Matthews claims the trial court's inquiry into the prosecutor's stated reasons for excusing the two prospective jurors was not "sincere and reasoned" as required by case law. (See People v. Hall (1983) 35 Cal.3d 161, 166-168.) Matthews claims that the prosecutor's assertion that the first juror lacked life experience is unsupported because she had two children, and "thus strongly suggestive of pretext." Matthews also contends the second juror's conduct in carrying a Bible "added no suggestion of any case-specific bias or untoward demeanor." But the trial court determined defendants had not made a prima facie case of discriminatory purpose, and therefore the burden never shifted to the state to require the trial court to proceed to the third stage of the Wheeler/Batson analysis. (See People v. Taylor (2010) 48 Cal.4th 574, 612 ["a trial court's request that the prosecutor provide reasons for his or her exercise of a peremptory challenge is not an implicit finding the defendant has established a prima facie case"]; id. at p. 642 ["Viewed in context, the trial court's concluding comment is reasonably understood as an observation that the prosecutor's proffered reasons confirmed its finding that defendant failed to state a prima facie case of discrimination"].) Our independent review of the record confirms that it does not support an inference jurors were excused on the basis of race. (See id. at p. 614.)

The prosecutor's peremptory challenges to two African-American jurors, without more, does not establish a prima facie showing of intentional discrimination, especially where the number of peremptory challenges at issue is small. (See People v. Hawthorne (2009) 46 Cal.4th 67, 79-80 [noting the record was silent as to both the number of African-American prospective jurors in the entire venire or jury panel when the motion was made, and as to the racial composition of the jury that tried the defendant]; see also People v. Taylor, supra, 48 Cal.4th at p. 643 [prosecutor's exercise of peremptory challenges to excuse two African-American prospective jurors and one Hispanic prospective juror was "insufficient to create an inference of discrimination, especially where, as here, the number of peremptory challenges at issue is so small"].) The record here suggests there were at least two, and perhaps four, African-American prospective jurors who remained on the panel when defendants' Wheeler/Batson motion was made. (See People v. Taylor, supra, at p. 614 ["That the prosecutor excused a single African-American prospective juror, without more, does not support the inference the excusal was based on race, especially given defendant's acknowledgement during the hearing that another African-American woman then was seated on the jury"]; cf. People v. Gray (2001) 87 Cal.App.4th 781, 789-790 [finding Wheeler/Batson error when trial court refused to allow prosecutor to explain his actions after defense counsel "created as complete a record as he could, established that the prosecutor excluded every African-American male examined on voir dire, and stated facts showing there was no apparent reason to exclude at least one of the three potential jurors [whose son-in-law was a police officer] other than his status as an African-American male"].)

"Moreover, the prosecutor's race-neutral reasons for the excusals confirmed the trial court's finding that there was insufficient evidence to permit the court to draw an inference that discrimination had occurred." (People v. Hawthorne, supra, 46 Cal.4th at p. 80, fn. omitted; see also People v. Taylor, supra, 48 Cal.4th at p. 644 [prospective juror who worked as a nurse was "engaged in [a] profession[] the prosecutor reasonably could believe would tend to make [her] overly sympathetic to the defense"].) Thus, the trial court did not err when it denied the Wheeler/Batson motion because defendants failed to carry their burden to show an inference of discrimination. (People v. Taylor, supra, at pp. 616-617, 644 & fn. 20 [declining to engage in comparative juror analysis when defendants failed to establish a prima facie case of intentional discrimination]; People v. Hawthorne, supra, at p. 80 & fn. 3 [same].)

C. Matthews's Severance Motion

Matthews contends the court erred when it denied his motions to sever his trial from Appling's and that the joint trial was grossly unfair. Matthews first moved for severance when, after the jury was sworn, the court was discussing opening statements with counsel. Appling's lawyer indicated he intended to introduce into evidence the statement Matthews provided to the police. Matthews sought to sever on that basis. The second motion for severance was made after the court ruled that Appling could cross-examine Campos about threats she may have received from Matthews and his associates. The court again denied the motion. Neither denial was an abuse of discretion on the facts apparent to the court at the time the motions were made, nor in retrospect was severance necessary because Matthews and Appling presented conflicting or antagonistic defenses.

"Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: 'When two or more defendants are jointly charged with any public offense . . . they must be tried jointly, unless the court order[s] separate trials.' [Citation.] Joint trials are favored because they 'promote [economy and] efficiency' and ' "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." ' [Citation.] When defendants are charged with having committed 'common crimes involving common events and victims,' as here, the court is presented with a ' "classic case" ' for a joint trial." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40.)

"We review a trial court's denial of a severance motion for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion." (People v. Avila (2006) 38 Cal.4th 491, 575.) If the court's ruling was proper when made, "a reviewing court may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness' amounting to a denial of due process." ' " (Ibid.)

Appling's use of Matthews's post-arrest statement to police does not present a fairness issue that compelled severance. Before trial, the prosecutor renounced any intention to use Matthews's statement to police in his case-in-chief. He declined to use the statement because he intended to try the defendants jointly and wanted to avoid any prejudicial effect to Appling that would arise because Appling would be unable to cross-examine Matthews about the statement. The prosecution's use of Matthews's statement in this way would have denied Appling the right to confront a material witness. (See Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.) But here, Appling introduced Matthews's statement, and its use by the co-defendant protected by the Aranda/Bruton line of cases does not implicate the right to confrontation. Moreover, the statement was otherwise admissible as a prior statement of a party, and would have been admissible against Matthews as such were he to be separately tried. (See Evid. Code, § 1220.)

We are similarly not troubled by Campos's possible intimidation by Matthews and his associates. The reason is simple. Although the trial court ruled that Appling could cross-examine Campos about whether she was threatened, her responses to questioning did not implicate Matthews in any threats or intimidation. When asked about a statement she made to an investigator that she was afraid Matthews would retaliate against her if she testified, Campos denied saying so and denied that Matthews's associates warned her against testifying. Instead, Campos said she wanted nothing to do with the trial because people in her neighborhood may harass her or her daughter for testifying. When she was asked if she was shading her testimony because she had been intimidated or feared retaliation, Campos said she was "not intimidated of [sic] Mr. Matthews at all."

Finally, the joint trial was not grossly unfair because Appling and Matthews presented antagonistic or conflicting defenses. Although antagonistic defenses may be a basis to sever a trial of co-defendants, no California decision has yet concluded that it was an abuse of discretion for a trial judge to decline severance in the face of such a claim. (People v. Hardy (1992) 2 Cal.4th 86, 168.) This case will not be the first. It is not uncommon or necessarily unfair to jointly try defendants in situations where they have "antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution." (People v. Turner (1984) 37 Cal.3d 302, 313.)

The presence of antagonistic defenses thus does not require severance per se in every case. Such a rule would undermine the legislative preference for joint trials expressed in Penal Code section 1098. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.) Instead, a claim of antagonistic defenses is narrowly construed to require the complaining defendant to demonstrate a conflict so prejudicial and irreconcilable that a jury will unjustifiably infer from the existence of the conflict alone that both defendants are guilty. (Ibid.) The moving defendant does not meet that burden when there is sufficient independent evidence that demonstrates the defendant's guilt, and it is not inferred from the conflict alone. (Ibid.)

Here, there was significant evidence of Matthews's guilt independent of Appling's claim of duress. Matthews was armed with a handgun and was waving it around before he ever got into Campos's car. He repeatedly came out of the store and told Appling he wanted to rob Griffin. The store employee noticed his behavior and was concerned about him. So was Vigil. Matthew's guilt is not inferred simply from Appling's claim of duress. It was not error to deny Matthews's motions for severance.

D. Matthews's Challenge to Admission of Escobar's Preliminary Hearing Testimony

The preliminary hearing testimony of store employee Juan Carlos Escobar was admitted into evidence at trial and read to the jury. The court permitted this use of Escobar's preliminary hearing testimony after it found he was unavailable as a witness. Matthews challenges the use of Escobar's prior testimony, arguing that the prosecution was not reasonably diligent in trying to locate Escobar to secure his presence at trial.

Evidence Code section 1291 permits the use of former testimony when a witness is unavailable.*fn18 Section 240, subdivision (a)(5) states that a witness is unavailable if "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." "The term 'reasonable diligence' . . . ' "connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.]" ' [Citation.] Considerations relevant to this inquiry include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored. [Citation.] We independently review a trial court's due diligence determination." (People v. Wilson (2005) 36 Cal.4th 309, 341.)

Before trial, the prosecutor told the court he had been unable to serve Escobar with a subpoena because "He's an illegal." District attorney's office investigator Ted Jones described what he did to locate and serve Escobar. He unsuccessfully searched for Escobar's name and date of birth in a database maintained by the district attorney's office.*fn19 He tried unsuccessfully to identify him in the data base maintained in the California Law Enforcement Telecommunications System (CLETS). Jones spoke to the owner of the mini-mart and learned Escobar was no longer employed there. The owner did not know where Escobar was and thought he was an undocumented alien. Jones also learned that Escobar was terminated by a subsequent employer because he could not provide proper documentation. His whereabouts remained unknown. Jones checked the district attorney's victim-witness file, and left messages at phone numbers previously associated with Escobar. None of the attempts to locate Escobar were successful.

Matthews argued the prosecution had not been diligent in looking for Escobar because Jones used the wrong middle name when he searched various databases ("Juan Carlo Escobar" instead of "Juan Carlos Escobar"), and because he did not review Escobar's employment documents to find other potential identifying information. Matthews's counsel also sought an opportunity to further investigate the prosecution's attempts to locate Escobar. The court found the prosecution had exercised reasonable diligence and admitted Escobar's preliminary hearing testimony under Evidence Code section 240, but said its ruling was tentative and Matthews could renew his motion "[i]f something else comes up." There is no indication the motion was renewed.

In this court, Matthews argues the efforts to locate Escobar were deficient because the investigator used an incorrect middle name, did not ascertain the social security number or address Escobar may have given former employers, did not contact immigration authorities or the Department of Motor Vehicles, did not consult any previous investigator or police reports, and did not confirm Escobar was "really illegal." But Jones pursued multiple avenues in his search. He searched multiple databases (with and without a middle name), spoke with two of Escobar's former employers, and attempted to contact Escobar by phone.

Matthews's claim that Jones should have made additional efforts to find Escobar does not affect our conclusion, after our independent review, that the prosecution exercised reasonable diligence. (See People v. Wilson, supra, 36 Cal.4th at p. 342 [" 'It is enough that the People used reasonable efforts to locate the witness' "]; see also People v. Lopez (1998) 64 Cal.App.4th 1122, 1128 ["the prosecution was not required to do everything possible to procure [the witness's] attendance; it was only required to use reasonable diligence"].) Matthews has not shown that efforts to locate Escobar were unreasonably delayed, or that the investigation of promising information was unreasonably curtailed or disregarded. (Cf. People v. Cromer (2001) 24 Cal.4th 889, 904.) The trial court did not err when it determined Escobar was unavailable as a witness and his former testimony from the preliminary hearing was admitted under Evidence Code section 240.

E. Matthews's Challenge to Exclusion of Evidence of Appling's Former Possession of Guns or Drugs

Matthews attempted to use two instances of Appling's juvenile behavior to impeach his credibility or show custom and habit. Appling was arrested when police discovered he had a firearm in his car, but the charges were later dismissed. He also entered a guilty plea to possession of a controlled substance following an incident where he was found in possession of rock cocaine and a loaded .44 caliber revolver was discovered nearby. The court excluded both incidents, and Matthews says exclusion of the evidence was an abuse of discretion. We disagree.

Evidence Code section 1101, subdivision (a) provides that character evidence, including specific instances of prior misconduct, is generally inadmissible to show disposition to commit a crime. But subdivision (b) provides an exception when the misconduct is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. (See People v. Ewoldt (1994) 7 Cal.4th 380, 393.) "There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] On appeal, a trial court's resolution of these issues is reviewed for abuse of discretion." (People v. Kipp (1998) 18 Cal.4th 349, 371.)

The court excluded evidence of Appling's juvenile misconduct under Evidence Code section 1101 and denied Matthews's request to use it for impeachment purposes. It concluded that possession of a controlled substance was not a crime involving moral turpitude, and any limited probative value of the evidence was outweighed by its prejudice to Appling and was therefore inadmissible under section 352. The court also denied Matthews's request to admit the evidence as habit and custom under section 1105,*fn20 and considered doing so an attempt to show bad character as prohibited by section 1101, subdivision (a).

In this court, Matthews contends the evidence of Appling's juvenile drug dealing was relevant to impeach his credibility, and his previous involvement with guns was relevant because it supported Matthews's defense that he acted under duress based on Appling's threat to shoot him. Matthews contends the evidence showed habit and custom because "Appling was no innocuous out-of-towner who could never credibly coerce [Matthews] with threats of a gun, and jurors needed to know it." But the evidence of Appling's prior gun possession was quite tenuous. In the uncharged incident, the gun was under the seat in a car Appling was driving. In the drug possession case, Appling was never charged with a firearm offense, and it is unclear whether he ever had possession of the weapon. Matthews has not shown the court abused its discretion when it concluded this evidence was insufficient to show Appling habitually carried a gun.

The court was also correct to conclude that evidence of Appling's juvenile misconduct was not admissible to show his bad character, and its limited probative value was outweighed by undue consumption of time and the risk of undue prejudice. Matthews has not shown the court's ruling " 'falls outside the bounds of reason.' " (People v. Kipp, supra, 18 Cal.4th at p. 371; see also People v. McPeters (1992) 2 Cal.4th 1148, 1178 [admissibility of habit evidence is addressed to the sound discretion of the trial court].) Matthews contends that " 'section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense.' " True enough. But that does not imply " 'that a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.' " (People v. Babbitt (1988) 45 Cal.3d 660, 684-685.)

F. Matthews's Challenge to Exclusion of Jailhouse "Kites"

When Appling was cross-examined by Matthews's counsel, he was confronted with certain jailhouse notes known as "kites." The kites were said to contain a series of messages from Appling to Matthews concerning their joint trial and possible defense strategies. But Appling denied writing the notes and his lawyer successfully objected to their admission into evidence.

Evidence Code section 1401, subdivision (a) provides: "Authentication of a writing is required before it may be received in evidence." "Authentication . . . means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (§ 1400.) Various non-exclusive statutory provisions allow authentication by anyone who saw the writing made (§§ 1410, 1413), by evidence that the party against whom it is offered has admitted its authenticity (§ 1414), by handwriting evidence (§§ 1415-1419), by evidence it was received in response to another communication sent to the alleged author (§ 1420), or by evidence it refers to matters "unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing." (§ 1421.) Circumstantial evidence may also be considered, including content and the location where the writings were found. (See People v. Smith (2009) 179 Cal.App.4th 986, 990, 995, 1001-1002 [documents were found in defendant's offices where they were intermingled with other documents authenticated by testifying victims].) The trial court's determination of whether "sufficient foundational facts have been presented to support admissibility is reviewed for abuse of discretion." (Id. at p. 1001.)

On appeal, Matthews contends the kites were self-authenticating based on their contents because several were subscribed in Appling's nickname and addressed to Matthews's nickname, and they contained "inside information" about prosecution witnesses and evidentiary issues. But neither the nicknames nor the contents of the notes contain information known only to Appling, nor were the notes found in his possession or in a location under his control. (See People v. Babbitt, supra, 45 Cal.3d at p. 685 [Evid. Code, § 1421 required defendant to show "that the contents of the records were known only to the author"]; cf. People v. Lynn (1984) 159 Cal.App.3d 715, 734-735 [kites properly authenticated by defendant's own statements]; People v. Gibson (2001) 90 Cal.App.4th 371, 383 [documents seized from defendant's residences]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 [papers found in defendant's home].) The cases Matthews relies upon to argue the notes are self-authenticating involve significantly different facts. (See People v. Estrada (1979) 93 Cal.App.3d 76, 100 [tape of defendant's jailhouse conversation authenticated when investigator who monitored conversation identified tape, and defendant's attempt to solicit alibi from his brother-in-law could not reasonably have come from someone else]; People v. Fonville (1973) 35 Cal.App.3d 693, 709 [foundation established when tape recording of jailhouse conversation included specific matters "unlikely to have been known by anyone other than the appellant," and trier of fact could compare appellant's voice to his statement to police].) The trial court did not abuse its discretion when it concluded the notes at issue in this case were not properly authenticated and were therefore inadmissible.

G. Matthews's Challenge to Alleged Prosecutorial Misconduct

In his closing arguments based upon Matthews's statement to police, his counsel told the jury that Matthews acted under duress because Appling had a gun and threatened to shoot him if he did not assist in the robbery. On rebuttal, the prosecutor attacked the truth of Matthews's statement that "he only grabbed the victim because [Appling] threatened him. Think about the truth of this for a minute. There's no evidence that [Appling] had a gun that night. The only evidence that you have in this whole case that [Appling] had a gun or could have had a gun or maybe had a gun is out of Mr. Matthews's mouth. He always carried a gun. Don't you think that [Matthews's trial counsel], he's a capable lawyer, he knows how to get subpoenas and get investigators on people if there's anything out there who could say . . . that [Appling] carried a gun." The court overruled an objection by Matthews's attorney that the argument was improper, and the prosecutor continued: "If [Appling] always carried a gun, don't you think he would have somebody like that in the courtroom telling you that. He didn't have that." The court denied Matthews's motion for a mistrial based on the prosecutor's argument, observing: "You had that power to bring in the evidence. What you brought in wasn't evidence that was allowed into court, as far as I ruled."

Matthews contends the prosecutor committed misconduct when he argued that Matthews's statement to police was the only evidence Appling was armed the night Griffin was killed, and if there had been other evidence that Appling always carried a gun, Matthew's attorney would have produced it. " ' " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.) Matthews has not shown the prosecutor violated either standard here.

Matthews acknowledges that "in most cases, it is proper for the prosecutor to comment on the failure of the defense to call logical witnesses . . . ." But he argues the argument was improper in this case because the prosecutor knew the court prohibited Matthews from offering evidence regarding Appling's previous involvement with firearms as a juvenile. The cases he relies upon are distinguishable. (See People v. Wilkes (1955) 44 Cal.2d 679, 686-688 [prosecutor deliberately commented on failure of defendant's spouse to testify, and trial court refused to instruct the jury on the wife's right not to testify]; People v. Ford (1988) 45 Cal.3d 431, 444 [noting that at time Wilkes was decided, "the defendant spouse as well as the witness spouse could exercise the marital privilege," and another seminal case "explained that the impropriety of comment on the failure of the defendant's spouse to testify lay in the defendant's exercise of his privilege to exclude such testimony"]; People v. Daggett (1990) 225 Cal.App.3d 751, 757-758 [reversible error occurred in sex offense case where evidence victim was previously molested by other children was excluded, and prosecutor compounded error when he argued the victim could only have learned about inappropriate sexual behavior from the defendant].)

Matthews has not shown the prosecutor exceeded his " 'wide-ranging right to discuss the case in closing argument.' " (See People v. Thomas (1992) 2 Cal.4th 489, 526.) The prosecutor did not commit misconduct when he responded to defense counsel's argument during rebuttal and commented on Matthews's failure to produce evidence. (See People v. McDaniel (1976) 16 Cal.3d 156, 177; People v. Mendias (1993) 17 Cal.App.4th 195, 203.) The fact that Matthews was unable to rely upon Appling's juvenile offenses to show he had prior experience with guns did not curtail the prosecutor's authority to comment on his ability to produce evidence that Appling always carried a gun. The evidence regarding Appling's juvenile conduct was properly excluded by the trial court, as discussed above, and would not have provided significant support for Matthews's argument that Appling always carried a gun. It would have shown at most that Appling was twice arrested as a juvenile in circumstances where a gun was found nearby.

Nor did the trial court abuse its discretion when it denied Matthews's motion for a mistrial based on the alleged prosecutorial misconduct. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1060 [" 'the trial court is vested with considerable discretion in ruling on mistrial motions' "].) A mistrial motion "presupposes error plus incurable prejudice." (See People v. Woodberry (1970) 10 Cal.App.3d 695, 708.) Neither prejudice nor misconduct occurred in this case.

H. Matthews's Challenge to Jury Instructions on Lesser-included Offenses

Although the information charged murder with malice, the court instructed the jury only on the crime of felony murder (the theory under which the prosecutor proceeded at trial).*fn21 Felony murder is a killing that occurs during the commission of a predicate felony as defined in Penal Code section 189, including robbery, and requires proof that a defendant had the intent to commit the predicate felony at the time of the killing. (See People v. Cavitt (2004) 33 Cal.4th 187, 197.) "The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony." (Ibid.)

Matthews contends the court erred when it declined his request to also instruct on second degree murder and manslaughter, or on withdrawal as a defense to aiding and abetting.*fn22 We disagree, because there was no substantial evidence to support such instructions in this case. (See People v. Breverman (1998) 19 Cal.4th 142, 162 ["the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury"]; see also People v. Taylor, supra, 48 Cal.4th at p. 623 [in the absence of evidence of second degree murder, court was not required to decide legal question of whether second degree murder is a lesser included offense when the prosecution proceeds only on a theory of felony murder].)

Matthews relies on People v. Anderson (2006) 141 Cal.App.4th 430 to argue the court was required to instruct on second degree murder and manslaughter. In Anderson the court concluded that whether the trial court had a sua sponte duty to instruct on lesser included offenses of murder was to be determined with respect to the offenses charged in the information, and not the theories actually offered by the prosecution at trial. (Id. at pp. 444-446.) The court determined substantial evidence would have supported jury findings that the defendant was not guilty of felony murder, because she did not form the intent to steal the victim's money before the fatal blow was inflicted. The defendant thus may have aided and abetted a second degree murder or voluntary manslaughter, and jury instructions on those offenses were therefore required. (Id. at pp. 446-448.)

Matthews concedes that, unlike Anderson, his case "did not present after-formed intent issues negating intent to commit robbery." Instead, he argues substantial evidence in his statement to police could support a conclusion that he never intended to rob the victim. He describes this evidence as "a clouded mix of intoxication, a single shot with no property taken, no eyewitnesses besides the defendants, doubt [as to] who fired the shot or whether it was intentional, plus a specific statement [Matthews] did not know this was to be a robbery." But if the jury had a reasonable doubt about whether Matthews intended to rob Griffin, or whether he acted under duress because Appling threatened to shoot him, it would have acquitted Matthews of felony-murder under the instructions as given. There was no substantial evidence that could support conviction of a lesser-included offense, even assuming second degree murder could be a lesser included offense when the prosecution proceeds only on a felony-murder theory. (See People v. Taylor, supra, 48 Cal.4th at p. 623.)*fn23

Matthews also argues the court erred when it refused his request to instruct on the defense of withdrawal from aiding and abetting based on Matthews's statement to police that he let the victim go when Appling ordered him to take his money.*fn24 The court refused to so instruct because the evidence showed Matthews had already committed at least an attempted robbery at the point when he released Griffin. The court was correct. There is no evidence that Matthews notified Appling he was no longer participating in the attempted robbery early enough to prevent its commission, or that he did everything he reasonably could to prevent it from being committed. Contrary to Matthews's argument on appeal, neither his statement to police that he grabbed the victim around the neck but refused to search through his pockets, nor Vigil's testimony that she heard Appling tell Matthews, "I had him. You should have got it" was substantial evidence that required the court to instruct on withdrawal from aiding and abetting attempted robbery.

I. Matthews's Challenge to Jury Instructions on Voluntary Intoxication

Matthews contends the court's instructions on voluntary intoxication were erroneous because the jury was told that it "may" consider evidence of Matthews's intoxication in considering whether he intended to commit the crimes charged. Instead, Matthews says the jury should have been instructed that it "must" consider the effect of intoxication on his mental state. In the context of the instructions as a whole, we disagree.

In addition to CALCRIM Nos. 404 and 3426, that Matthews argues impermissibly granted the jury discretion to weigh whether it would consider the effect of intoxication, the court also gave CALCRIM Nos. 220, 223 and 301 which directed the jury to consider all the evidence.*fn25 In context, we have no concern that the jury disregarded the possible effect of intoxication on Matthews's ability to form the requisite intent to commit robbery in the context of attempted robbery and felony murder.

To the extent Matthews relies upon People v. Stevenson (1978) 79 Cal.App.3d 976, to argue that proper instructions tell a jury it must consider the effect of intoxication, we disagree. In Stevenson, the court considered whether it was proper to limit the jury's consideration of voluntary intoxication to the defendant's generalized mental state and not as it bore upon specific intent to commit the charged crimes. The directive on voluntary intoxication, that Matthews says was required by Stevenson, was included by that court to guide the trial court on remand. It was not essential to the holding in Stevenson and was not based upon any analysis of the adequacy of the standard instructions. It is dicta that does not convince us CALCRIM Nos. 404 and 3426 are inadequate.

J. Matthews's Challenge to CALCRIM No. 335

Appling is not the only one who challenges the use of CALCRIM No. 335 that told the jury Appling was an accomplice in the crimes charged. Matthews argues the court should have instead included Appling's possible status as an accomplice among the matters for the jury to decide by including him in CALCRIM No. 334 that was given regarding Campos and Vigil. He says that naming Appling as an accomplice "all but told jurors [Appling] was acting as an intentional perpetrator . . . [thereby] unfairly imputing guilt to [Matthews] and making his guilt a foregone conclusion." We disagree.

Although we have concluded above that the trial court erred when it identified Appling as an accomplice in CALCRIM No. 335, that error did not unfairly impact the jury's consideration of the evidence as it pertained to Matthews's guilt. The effect of the challenged instruction was to require independent corroboration of Appling's testimony to the extent it implicated Matthews in the crimes. Indeed, Matthews's lawyer argued as much in his closing when he said that "anything Mr. Appling told you about what Mr. Matthews did has to be viewed with skepticism as it relates to Mr. Matthews. . . ." In context, there is no reasonable likelihood the jury understood CALCRIM No. 335 in the way urged by Matthews.

K. Matthews's Challenge to CALCRIM No. 400

Matthews contends the court erred because, in spite of the parties' agreement, it inadvertently included in the general jury instruction on liability for aiding and abetting (CALCRIM No. 400) language that refers to natural and probable consequences liability.*fn26 He says that because the court instructed on natural and probable consequences liability, it was required to also instruct on the basic elements of such liability and properly define the intended lesser target crimes. (See People v. Prettyman (1996) 14 Cal.4th 248, 269-270.) Matthews contends the error was "prejudicial under any standard, notwithstanding the lack of explicit jury arguments on the theory."

The Attorney General acknowledges that the language implicating the natural and probable consequences doctrine should not have been given, but argues the error was harmless. We agree. There is no reasonable likelihood the jury understood the instruction to mean, as Matthews suggests, that he "was guilty of robbery because he at least assisted some sort of 'nefarious conduct' and robbery was closely related under the circumstances, resulting in guilt of a felony murder." The parties made no reference to the natural and probable consequences doctrine in their arguments to the jury. It is therefore highly unlikely the jury relied on that doctrine in reaching its verdict. (People v. Prettyman, supra, 14 Cal.4th at p. 273.)

Moreover, the jury instructions correctly stated what the prosecution must show to prove the defendant guilty of a crime based on aiding and abetting that crime, and what must be shown to prove felony murder where either the defendant or a confederate committed the fatal act. The jury was also instructed that the defendants were charged with "murder, under a theory of felony-murder." The prosecutor clearly stated at the outset of his closing argument, "Murder in this case is predicated upon the theory of felony murder," and he proceeded to explain the doctrine. Considered in the light of the trial record and in the context of the jury instructions as a whole, there is no reasonable likelihood the jury applied the challenged instruction in a way that violated Matthews's constitutional rights. (See People v. Prettyman, supra, 14 Cal.4th at pp. 272-274.) The error was also harmless under state law. (Id. at p. 274.)

L. Matthews's Cumulative Error Claim

We have found error in the instruction under CALCRIM No. 335 that Appling was an accomplice as a matter of law and in the inadvertent inclusion of a bracketed paragraph in CALCRIM No. 400, as discussed above, but conclude such errors were harmless as to Matthews. We have otherwise rejected all Matthews's allegations of error, and we accordingly reject any contention that the cumulative effect of error requires reversal of his convictions.


The judgment of conviction as to Appling is reversed. The judgment of conviction as to Matthews is affirmed.

We concur: Pollak, Acting P.J. Jenkins, J.

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