(Super. Ct. No. 08F09808)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08F09808)
Following a joint trial, separate juries convicted defendants Richard Antonio Hundley and Curtis Level Chapman of the first degree murder of David Barreda (Pen. Code, § 187, subd. (a))*fn1 and found that the murder was committed while defendants were engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)). Chapman's jury also found he used a firearm to commit the murder. (§ 12022.53, subd. (d)). Defendants were sentenced to life in prison without the possibility of parole for Barreda's murder, and Chapman was sentenced to a consecutive term of 25 years to life for the firearm enhancement. Among other things, the trial court ordered each defendant to pay a $10,000 parole revocation restitution fine (§ 1202.45) and a $30 court facilities assessment (Gov. Code, § 70373). It refused to award either defendant presentence custody credit for the time they spent in actual custody prior to being sentenced. Defendants appeal.*fn2
Hundley contends insufficient evidence supports his first degree murder conviction, the trial court prejudicially erred in allowing Chapman's counsel "to delve into the facts" underlying Hundley's prior felony conviction and in admitting evidence of Chapman's out-of-court statements implicating Hundley. He also asserts that imposition of the $30 court facilities assessment violated state and federal prohibitions against ex post facto laws. We shall conclude sufficient evidence supports Hundley's murder conviction, and the trial court did not abuse its discretion in allowing Chapman's counsel to question Hundley about his prior conviction or in admitting evidence of Chapman's out-of-court statements implicating Hundley. We shall further conclude the trial court did not err in imposing the court facilities assessment.
Chapman claims the trial court prejudicially erred in refusing to admit evidence that the individuals who threatened a key prosecution witness were gang members. We shall conclude any error in excluding such evidence was harmless.
Both defendants argue, and the People concede, the trial court erred in ordering them to pay a parole revocation fine and in refusing to award them any presentence custody credit for the actual time they spent in custody prior to sentencing. We shall conclude the trial court erred in imposing the parole revocation fines, order that those fines be stricken, and affirm the judgments as modified. We shall decline to modify the judgments to include an award of presentence custody credit given that defendants were sentenced to life in prison without the possibility of parole.
FACTUAL AND PROCEDURAL BACKGROUND
Barreda, the victim, met Desiree Santillan at a car show in 2008, and the two began communicating over the internet. Eventually, they arranged to meet at Desiree's home on the evening of November 24, 2008. Desiree, who was 18 years old at the time, lived with her stepmother Heather Santillan, Heather's boyfriend Chapman,*fn3 Heather's three young sons, Tammy Turney, and Turney's son Hundley.*fn4
Barreda arrived at Desiree's home late in the afternoon. He and Desiree sat at the dining room table talking, while Chapman and Hundley played video games in the living room, and Heather remained in her room. Eventually, Barreda began talking to Chapman and Hundley. Barreda "bragged" about his cars, motorcycles, guns, and access to drugs. He said that "he had a lot of different kinds of guns if anybody was looking to buy some" and pulled a gun out of his pants and showed it to Chapman and Hundley. Desiree told Barreda she was uncomfortable with him having a gun in the house. Barreda gave the gun to her, and she placed it in the trunk of Heather's car. Desiree later returned the gun to Barreda.
At some point, Turney, who had heard Barreda talking, decided to "rob" him. She took Barreda's keys and directed Hundley to go through Barreda's car and steal anything of value. Hundley did so but did not find anything except two CDs. Hundley returned the keys to Turney, and Turney put them in her pocket and went to bed.
Later, when Barreda attempted to leave, he could not find his keys. He telephoned a few locksmiths, but none came. Eventually, Desiree said he could sleep on the couch, which he did.
Sometime after Hundley searched Barreda's car, Chapman told Hundley, Barreda's "gotta go, I'm gonna smack him." "Smack" is slang for "kill." Hundley responded, "Don't kill him, just rob him regular, put your gun to his head and take his property."
The following morning Desiree helped her younger brothers get ready for school, and at approximately 8:00 a.m., she and Heather left to walk them to school. Meanwhile, Chapman, Hundley and Barreda spoke in the kitchen. Chapman, who was armed with a gun, told Barreda it was "disrespectful" for him to have a gun in the house and demanded Barreda give him his gun, which he had in his lap. Chapman and Hundley told Barreda "we're going to take your shit." A dispute followed, and Chapman shot Barreda in the back of the head.
Chapman and Hundley dragged Barreda's body from the kitchen to the garage, placed it in the trunk of Barreda's car, and drove Barreda's car to a nearby location.
Heather and Desiree returned to the house at approximately 8:30 a.m. and saw that Barreda's car was gone. As they walked inside, Heather smelled smoke and saw a broken lamp in the kitchen and Desiree's purse thrown in front of the refrigerator. Desiree attempted to call and text Barreda but got no response. Turney was the only one home, and she was acting "pretty hyper." She told Heather that she needed to talk to her outside. Once outside, Turney told Heather Barreda was dead, and they had his gun. While they were talking, Chapman and Hundley walked up to the house. Chapman had blood on his t-shirt, and Hundley had blood by his knee and on his shoe. When Heather noticed "smudges" of blood in the garage, she attempted to clean them with bleach.
The next day, November 26, 2008, Barreda's body was discovered inside the trunk of his car. He died from a single gunshot to the back of his head. He was shot with either a .38 special or .357 magnum caliber bullet.
Detectives with the Sacramento County Sheriff's Department began investigating Barreda's death. They obtained Barreda's cell phone records and began cold calling recently dialed phone numbers. On December 1, 2008, a detective dialed a number, and Desiree answered. She indicated she knew Barreda and that she lived at an address that was approximately one mile from where Barreda's body was found. She agreed to meet with the detective at his office the following day, December 2, 2008. Based on information gleaned during that interview, detectives contacted Heather for an interview. Heather was interviewed later that day and into the next.
When interviewed by law enforcement, Chapman initially denied knowing why the detective wanted to speak to him. Later, he admitted helping dispose of Barreda's body but maintained that Hundley killed Barreda "[t]o rob him of his belongings." Finally, when asked directly whether he was "the shooter," Chapman nodded his head in the affirmative. Thereafter, he told detectives that he wrapped Barreda's gun in a red towel and disposed of it in a nearby backyard. A detective searched the area described by Chapman but was unable to locate the gun. He did find a red towel and a Carl's Jr. bag containing a box of Remington .38 special ammunition.
At trial, both Desiree and Heather testified under grants of immunity. Desiree admitted that before she was interviewed on December 2, 2008, Heather told her to say that they were cousins, and that nobody was living at Heather's house except Desiree, Heather, and Heather's sons. She also conceded that Turney told her not to mention Turney to the detective. Desiree initially complied with Heather and Turney's instructions and lied about what happened. Later, she decided to stop lying and told the truth about what happened in the hours before Barreda's murder.
Heather admitted prior felony convictions for welfare fraud and passing bad checks. As to the instant case, she admitted pleading guilty to illegally purchasing ammunition*fn5 and to being an accessory after the fact. She acknowledged that as a result of her deal with the prosecution to testify truthfully in this matter and at Turney's trial, she was sentenced to one year in jail for those crimes and a probation violation. She also conceded that while this case was pending, she was arrested for petty theft and falsely stated she was in protective custody at that time.
Heather also explained that she initially lied to law enforcement to protect herself, her children, and everyone involved. She described how Turney had threatened to kill her and her children if she mentioned Turney or Hundley to detectives and how she feared Turney because Turney had told her she "had been involved in violence before" that "involved individuals being seriously hurt or killed." When first interviewed by law enforcement on December 2 and 3, 2008, she never stated that Chapman admitted shooting Barreda. She stated that Chapman told her "they did it" and that his family's gun was used to shoot Barreda. Heather conveyed so much fear to the detectives about what might happen to her or her children as a result of what she said during the interview that she and her children were placed into protective custody. In February 2009, she was attacked and told she "better not tell on [Turney] and [Hundley]" and "better put the blame on [Chapman]."
Heather was interviewed a second time on December 10, 2008. During that interview, she stated that Chapman admitted shooting Barreda. She acknowledged that between her first and second interview, she learned that the mother of Chapman's child had been visiting him in jail. She also acknowledged that this made her angry because she did not know Chapman was still seeing the woman.
Both Heather and her 11 year-old son Anthony testified that Chapman told them he was the shooter. Anthony initially testified that Chapman told him he accidentally shot Chapman. More particularly, Chapman told Anthony "[t]hat [Turney] and [Hundley] were planning to jack [Barreda] . . . . [a]nd that the guy was just sitting there, but then the guy knew that something was happening. [¶] And then he pulled out his gun, and [Chapman] was just coming out of the room, and he got squared, then he shot him because he was frightened he might be shot." Later, Anthony testified that Chapman told him that Hundley "was distracting [Barreda], and [Chapman] swung over and shot him in the head." When Chapman's counsel observed during cross-examination that Anthony's testimony "about [Hundley] distracting and [Chapman] shooting . . . [was] different than what you said that [Chapman] told you before about what happened," Anthony stated that his subsequent testimony was "real." He explained that "[t]he other one I thought, but now everything is coming clear." Anthony was surreptitiously videotaped at the sheriff's station telling Heather that Chapman "said [Hundley] was distracting [Barreda], and [Chapman] swang [sic] over and shot the guy in the head."
Heather also testified that Hundley himself told her that he was "[t]alking with [Barreda], almost like distracting him" when Chapman shot Barreda.*fn6
Chapman did not testify at trial.
Hundley testified in his own defense as follows: He was outside having a cigarette when Barreda arrived. Barreda went inside with Desiree, and Hundley went to his room. He came out about 30 minutes later, and saw Turney, Chapman, Desiree, and Barreda drinking and talking. At some point, Barreda and Desiree left to go to the store. While they were gone, Heather told Chapman and Hundley that Desiree had hidden a gun for Barreda somewhere in the house, and Turney said "they could steal it." The plan was for Hundley to be the "look-out" while Turney and Chapman looked for the gun. They did not find the gun before Desiree and Barreda returned, and Desiree, Barreda, and Turney resumed drinking. At some point, Barreda asked Desiree for his gun in front of everyone, and Desiree went to the garage, retrieved the gun, and handed it to him. Barreda showed the gun to everyone and asked, "you guys know anybody who wants to buy guns[?] I get guns and I sell them." Hundley said he would like to buy a gun, but he did not have any money. As Chapman looked at the gun, Barreda continued to "go on and on" about guns and told them he had "a 40 caliber with a laser" in his car.
Later, Turney told Hundley and Chapman that Barreda was "slipping" and suggested that she grab his keys and that Hundley or Chapman search his car for the gun with the laser. They agreed, and when Barreda was not looking, Turney took his keys and gave them to Hundley, who searched Barreda's car. He found a couple of compact discs, which he took, but nothing else. He returned to the house, placed Barreda's keys on a table, and went into his room.
About 10 minutes later, Chapman entered Hundley's room and told him he was going to "smack" Barreda for his gun. Hundley told Chapman "that's stupid" and there was "no reason" for him to kill Barreda. He advised Chapman that "if you plan on robbing him, just . . . put [your] gun in his face and just take the gun off him." Hundley explained the gun was probably stolen, and thus, it was unlikely Barreda would call the police and report the robbery. At that point, Chapman said "he was done" and "would forget about it." Hundley thought that was the end of it; he never agreed to Chapman's plan to rob and kill Barreda or to share the gun or the profits from the sale of the gun.
The next morning, Hundley went to the kitchen to heat up some coffee, and Barreda sat down at the kitchen table and began talking to him. As Hundley turned away from Barreda, he heard a "boom." When he turned back around, he saw Barreda hit the floor. Hundley asked Chapman, "what the fuck is wrong with you[?]" Chapman ignored Hundley and went through Barreda's pockets. Chapman took Barreda's gun from Barreda's waistband, put it on the table, and told Hundley, "it's me [sic] and yours." When Turney entered the kitchen, Chapman began barking orders. Hundley initially refused to assist him, but ultimately helped get rid of Barreda's body because he wanted it out of the house as soon as possible.
During cross-examination, Hundley conceded that he failed to say anything about not wanting Chapman to rob Barreda when he was interviewed by law enforcement. Rather, he told the police that Chapman "wasn't supposed to kill him, he was just supposed to rob him . . . ." Hundley also admitted having a prior conviction for possessing crack cocaine for sale. (Health & Saf. Code, § 11351.5.) Additional relevant facts are set forth below.
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