IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
June 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD ANTONIO HUNDLEY, DEFENDANT AND APPELLANT. THE PEOPLE, PLAINTIFF AND RESPONDENT,
CURTIS LEVEL CHAPMAN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F09808)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Hundley
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
Substantial Evidence Supports Hundley's Conviction For First Degree Murder
Hundley contends his first degree murder conviction must be reversed because there is insufficient evidence he aided or abetted in the robbery or murder of Barreda. We disagree.
In addressing whether there is sufficient evidence to support Hundley's conviction, we view the entire record in the light most favorable to the judgments and presume in support of the judgments the existence of every fact that the jury reasonably could deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Golde (2008) 163 Cal.App.4th 101, 108.)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Murder that is committed in the perpetration of robbery is first degree felony-murder. (§ 189.) "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." (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt).) The felony-murder rule generally acts as a substitute for the mental state ordinarily required for murder; the only mental state required is the specific intent to commit the inherently dangerous underlying felony. (Id. at pp. 197, 205.) Where, as here, the inherently dangerous underlying felony is robbery, the prosecution must only prove the defendant's specific intent to steal. (People v. Pollock (2004) 32 Cal.4th 1153, 1175.)
Under the felony-murder rule, for a nonkiller to be liable for the felony murder committed by the killer, the nonkiller must at a minimum, "have been, at the time of the killing, a conspirator or aider and abettor in the felony." (People v. Pulido (1997) 15 Cal.4th 713, 723.) A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating or encouraging commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 561.)
Viewed in the light most favorable to the judgment, the evidence showed that Hundley wanted Barreda's gun and had attempted to steal it the night before Barreda was shot. When Chapman told Hundley he was going to kill Chapman for his gun, Hundley told him he did not need to kill him; rather, he could simply "put [his] gun to [Barreda's] head and take his property." Immediately before Barreda was shot, Hundley and Chapman told him, "we are going to take your shit." Hundley distracted Barreda, while Chapman shot him in the back of the head. After Barreda hit the floor, Chapman removed Barreda's gun from his waistband and told Hundley "it's me [sic] and yours." On this record, a jury reasonably could conclude Hundley knew of Chapman's plan to rob Barreda and facilitated, encouraged, and participated in the commission of the robbery. As previously discussed, that is all that is required under the felony-murder rule. (See People v. Pollock, supra, 32 Cal.4th at p. 1175; People v. Pulido, supra, 15 Cal.4th at p. 723.)
As for Hundley's assertion that he instructed Chapman not to kill Barreda and was "shocked" when Chapman shot Barreda, "it is no defense to felony murder that the nonkiller did not intend to kill, forbade his associates to kill, or was himself unarmed. [Citations.]" (Cavitt, supra, 33 Cal.4th at p. 198, fn. 2.) Thus, even if true, Hundley's assertions are not a defense to felony murder. (See id. at p. 202.)
Sufficient evidence supports Hundley's first degree murder conviction.
The Trial Court Did Not Abuse Its Discretion
In Allowing Chapman's Counsel To Question Hundley Concerning His Prior Conviction
Hundley next contends the trial court prejudicially erred in permitting Chapman's counsel "to delve into the facts underlying [Hundley's] prior felony conviction [for possession of rock cocaine with the intent to sell] after [Hundley] admitted to the conviction." More particularly, Hundley complains that "[d]espite [his] admission, [Chapman's] attorney . . . engaged in a line of questions repeatedly asking if [Hundley] was a 'dope dealer . . . .'" We discern no error.
Chapman's counsel's cross-examination of Hundley began with the following colloquy:
"Q: What did you get out of jail for two weeks before living at [Heather's home]?
"A: Possession for sales.
"Q: Possession for sales?
"Q: Possession with the intent to sell drugs?
"A: Possession for sale. I just, mean possession for sales."
"Q: Does that mean you were a dope dealer?
"[Hundley's counsel]: Wait a minute. That's an improper question, Your Honor.
"THE COURT: There is a very limited way you can ask a question about a prior felony.
"THE COURT: Well, overruled. It can either be the felony or could be the circumstances, and he is a competent witness to talk about the circumstances.
"[Hundley's counsel]: The circumstances of the crime?
"THE COURT: Yes.
"Q: So possession for sale means you were dealing dope, right?
"[Hundley's counsel]: It doesn't mean that, Your Honor. That's -- possession for sale is not sale. Possession for sale is not dealing. That's why you can't go into these questions.
"THE COURT: The question is for Mr. Hundley.
"[Hundley]: Can you ask again.
"Q: Yeah. Possession for sale means you were dealing dope?
"A: No. I wasn't dealing dope.
"Q: Okay. Was it cocaine?
"Q: Cocaine rocks?
"Q: All right. We call that crack, right?
"Q: So you were a crack dealer?
"Q: All right. But you had crack with the intent to sell it, right?
"[Hundley's counsel]: Been asked and answered, Your Honor.
"[Hundley]: That doesn't mean that --
"THE COURT: Overruled . . . . Do you have an answer?
"[Hundley]: Yeah. That doesn't mean that the crack was mine that the guy found.
"Q: Okay. But you were charged with and you were convicted with possession of crack with the intent to sell, correct?
"Q: So you were intending to sell crack cocaine?
"Q: So you weren't really guilty, were you?
"A: I got found guilty, but I just took a deal, because I didn't want to tell on the guy whose crack it was.
"Q: Now, when you take a deal, that means you had admitted to the crime, right?
"Q: So you were guilty, weren't you?
While Hundley acknowledges that where, as here, a defendant testifies at trial, he may be impeached with a prior felony conviction (Evid. Code, § 788), he contends that Chapman's counsel exceeded the permissible scope of such an inquiry by delving into the facts underlying the conviction. (See People v. Heckathorne (1988) 202 Cal.App.3d 458, 462.) As we shall explain, Chapman's counsel properly limited his inquiry to the nature of the crime itself and did not delve into the underlying facts.
As demonstrated by the preceding colloquy, Hundley was reluctant to admit the exact nature of his prior conviction. When initially asked about it, he indicated he had been convicted of "possession for sales." Thereafter, Chapman's counsel properly asked more questions about the exact nature of the conviction, i.e. facts that would appear on the face of the record of judgment. (People v. Smith (2003) 30 Cal.4th 581, 634.) "Drug dealer" and "dope dealer" are alternative ways of referring to someone who illegally possesses a controlled substance for sale. While they may be more pejorative or colorful descriptions of the offense, they are ones the jury likely would better understand. That the phrases also describe one who is convicted of selling a controlled substance, a separate crime (Health & Saf. Code, § 11352), as Hundley's counsel argued at trial, they also accurately describe someone who has been convicted of possessing the same with the intent to sell it. On this record, the trial court reasonably could have concluded that Chapman's counsel was attempting to clarify the nature of Hundley's prior conviction -- possession of rock cocaine with the intent to sell -- and was not, as Hundley claims, delving into the underlying facts of that conviction.
Finally, even if the court erroneously permitted impeachment, any error is necessarily harmless since it is not reasonably probable Hundley would have received a more favorable result had counsel not been permitted to ask him whether he was a "drug dealer" or "dope dealer," questions he answered in the negative, given his admission that he had recently been released from jail following a conviction for possession of crack with the intent to sell. (Evid. Code, § 353; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Castro (1985) 38 Cal.3d 301, 319.)
The Trial Court Did Not Err In Admitting Evidence of Chapman's Out-Of-Court Statements Implicating Hundley
Hundley contends the admission of Chapman's out-of-court statements implicating Hundley "as a knowing participant in the shooting" violated his Sixth Amendment right to confront and cross-examine Chapman and the rule established in Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton). We disagree.
The People moved in limine to admit evidence that shortly after Barreda's murder, Chapman told Anthony that "while . . . Hundley was talking to Barreda and distracting him, he (Chapman) leaned over and shot him." The People also sought to admit evidence that Chapman told Anthony where he put Barreda's gun after the shooting. The People argued the statements were admissible against Hundley because they were not testimonial, "were made many days prior to police involvement," were "directly against Chapman's penal interest," and "describe[d] [Chapman's] own involvement as more serious than that of Hundley." Hundley objected, arguing the statements were not trustworthy and ran afoul of Bruton. The trial court ruled the evidence was admissible against Hundley, as well as Chapman, finding the statements were trustworthy and "clearly implicate[d] [Chapman's] penal interests."
The Bruton rule bars the admission of one defendant's out-of-court statement that incriminates a co-defendant. (Bruton, supra, 391 U.S. at pp. 135-136 [20 L.Ed.2d at p. 485].) The rule assumes that the statement is inadmissible hearsay against the co-defendant. (People v. Smith (2006) 135 Cal.App.4th 914, 922.) "[I]f the statement is admissible against the co-defendant under a hearsay exception, and its admission otherwise survives confrontation analysis, then the jury may consider it against the co-defendant; no reason exists for severance or redaction. [Citation.]" (Ibid.) Such is the case here.
The statements were admissible under the declarations against interest exception to the hearsay rule, which permits admission of those portions of a declarant's statement that are "specifically disserving" to the declarant's interest. (People v. Leach (1975) 15 Cal.3d 419, 441.) Under this particular exception to the hearsay rule, the trial court must redact any portion of a statement not specifically disserving to the declarant. (People v. Duarte (2000) 24 Cal.4th 603, 612.)
However, a statement of one defendant that implicates another is admissible provided it satisfies the statutory definition of a declaration against interest and satisfies the constitutional requirement of trustworthiness. (People v. Cervantes (2004) 118 Cal.App.4th 162, 176-177.) "'This necessarily requires a "fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved; . . ." [Citation.]'" (Ibid.)
In this case, the statements are sufficiently against the penal interest of Chapman to satisfy the exception. Chapman's statement that "while . . . Hundley was talking to Barreda and distracting him, he (Chapman) leaned over and shot him" was against Chapman's penal interest because it implicated him as the shooter. Chapman's statement as to where he hid Barreda's gun was against Chapman's penal interest because it implicated him in the robbery.
There was also evidence of trustworthiness. "There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry." (People v. Greenberger (1997) 58 Cal.App.4th 298, 334-335.) "[T]he most reliable circumstance is one in which the conversation occurs between friends in a non-coercive setting that fosters uninhibited disclosures." (Id. at p. 335.)
Here, Chapman's statement was made shortly after the crime, in a non-coercive environment to a trusted friend. Chapman did not attempt to shift blame to Hundley; rather, he ascribed the greatest criminal culpability to himself by acknowledging he was the shooter. All of this was sufficient evidence to support the trial court's conclusion that the statements were trustworthy.
Turning to the confrontation analysis, there was no confrontation clause violation because Chapman's statements to Anthony were not testimonial. The confrontation clause of the Sixth Amendment is concerned solely with hearsay statements that are testimonial. (Davis v. Washington (2006) 547 U.S. 813, 821-825 [165 L.Ed.2d 224, 237-239].) "[I]t is the 'involvement of government officers in the production of testimonial evidence' that implicates confrontation clause concerns." (People v. Geier (2007) 41 Cal.4th 555, 605.) Chapman's statements to Anthony were not formal statements to a government officer, but informal statements to a friend, thus they were not testimonial and did not violate the confrontation clause. (People v. Jefferson (2008) 158 Cal.App.4th 830, 842.)
Because Chapman's statements were not inadmissible hearsay, and were not testimonial, they were admissible under both Bruton and Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. The trial court did not err in so concluding.
Any Error In Excluding Evidence That The Individuals Who Threatened Heather Were Gang Members Was Harmless
Chapman contends the trial court abused its discretion in excluding evidence that the individuals who threatened Heather "to inculpate Chapman and exculpate . . . Hundley and Turney" were gang members. Chapman asserts that such evidence was probative because "a jury could conclude that a threat made by an organized and violent criminal street gang is much more likely to sway the witness than blustering by an incarcerated co-defendant or her relatives," and any prejudice to Hundley could have been avoided by excluding his jury during the presentation of such evidence. Chapman further asserts that "[t]he error was prejudicial [as to his murder conviction and the jury's findings on the special circumstance and firearm allegations] notwithstanding the fact that the jury heard other evidence impeaching Heather's credibility, for the threats by the gang were far more powerful than Heather's other motives to lie." We need not determine whether the trial court abused its discretion in excluding the gang evidence because, as we shall explain, any such error was harmless.
Chapman moved in limine to introduce evidence that Heather "changed her story" to inculpate him in part because she had been threatened by gang members associated with Hundley, Turney and Turney's ex-husband Eric Bell. In addition, Chapman sought to have a gang expert testify about "the culture of gangs, the violent nature of gangs, [and] the disdain for snitches in gangs."
At an evidentiary hearing conducted pursuant to Evidence Code section 402, Heather testified as follows: before she was interviewed by law enforcement in connection with this case, Turney told her that she better say that Chapman was the person who shot Barreda and not place any blame on Turney or Hundley. When first interviewed by law enforcement, Heather lied and denied knowing anything about the case, including anyone dying in her home or anyone's involvement in Barreda's death. After law enforcement promised to protect her, however, she told the truth about what had happened, including that Chapman was the shooter.
Thereafter, she was told by someone in South Sacramento that Eric Bell, Turney's "supposed ex-husband," wanted to "get his hands on [her]." She assumed that Bell wanted her to "take any blame off of [Turney] and possibly her son [Hundley]." While Bell never "got at" her, others did. On three occasions people made it "very clear as to what the outcome w[ould] be" if she did not "take all the blame off" of Turney and Hundley "and put it on" Chapman. On one of those occasions a man with dread locks slapped her, told her he was going to rape her, ripped her shirt and pants, "robbed the jewelry off [her] neck," told her "things happen to snitches," and said that if she did not "point everything on to [Chapman]" she would "get it." Heather admitted telling law enforcement that Chapman was the one responsible for the homicide but denied doing so because of the threats she received.
Following the hearing, the trial court ruled that everything Heather testified to was admissible but evidence the individuals who threatened her were gang members was not, noting, among other things, that it "didn't hear anything about gangs."
"Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court." (People v. Burgener (2003) 29 Cal.4th 833, 869.) In other words, a jury is entitled to evaluate a witness's testimony knowing it was given under circumstances that might engender retaliation. "And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness's fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into her house the night before the trial." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
Chapman claims the trial court prejudicially erred in refusing to admit evidence that Heather "was aware that the threats were from gang members." Like the trial court, we question the probative value of such evidence insofar as Chapman failed to make any showing that that Heather knew the individuals who threatened her were gang members. Absent such a showing, Chapman could not establish their gang membership had any impact whatsoever on Heather. Chapman acknowledges "Heather had not in fact testified to any gang involvement" but asserts that "the [trial] court understood the offer of proof to be that Hundley and Bell were involved in the same gang, and hence the jury could infer that Bell was making his threats on behalf of the gang." Again, even if true, Chapman made no showing Heather knew that Bell or any of the other individuals who threatened her were gang members. In any case, we need not decide whether the trial court abused its discretion in excluding such evidence because any error was harmless.
We review the assumed evidentiary error under People v. Watson, supra, 46 Cal.2d at page 836 (whether "'it is reasonably probable that a result more favorable to [Chapman] would have been reached in the absence of the error.'")*fn7
At trial, evidence was presented that Heather feared Turney and would have taken her threats seriously. Turney threatened to hurt or kill Heather and her children if Heather did not exculpate Turney and Hundley and implicate Chapman. Heather believed Turney would make good on her threats because Turney told Heather she "had been involved in violence before" that "involved individuals being seriously hurt or killed." Indeed, Heather conveyed so much fear during the interview that law enforcement placed her and her children into protective custody.
Moreover, contrary to Chapman's assertion, Heather did implicate Chapman in Barreda's murder during her first interview with law enforcement. While she did not state that Chapman admitted shooting Barreda, she did say that he told her that "they did it" and that his family's gun was used to shoot Barreda.
Finally, Heather was not the only witness to implicate Chapman in Barreda's murder. Anthony testified that shortly after the murder Chapman told him he shot Barreda. Anthony was surreptitiously recorded telling Heather the same thing while the two were alone in an interview room. Perhaps most significantly, when asked directly if he was the shooter, Chapman nodded his head in the affirmative. A videotape of Chapman's confession was played for the jury.
On this record, it is not reasonably probable that a result more favorable to Chapman would have been reached had the jury also learned that the individuals who threatened Heather were gang members.
Imposition Of The $30 Court Facilities Assessment Did Not Violate Prohibitions Against Ex Post Facto Laws
Hundley contends that imposition of the $30 court facilities assessment mandated by Government Code section 70373 violated state and federal prohibitions against ex post facto laws because the crime for which he was convicted was committed before the enactment of the statute. We recently rejected an identical claim in People v. Fleury (2010) 182 Cal.App.4th 1486. There, we concluded that "imposition of the assessment mandated by [Government Code] section 70373 for crimes committed before the statute's enactment does not violate state or federal prohibitions against ex post facto statutes," (id. at p. 1494) finding "the Legislature did not intend for the assessment to constitute punishment, and that the assessment is not so punitive as to override the Legislature's intent." (Id. at p. 1488.) We see no reason to revisit that decision here.
The Trial Court Erred In Imposing Parole Revocation Fines Pursuant To Section 1202.45
Defendants contend the trial court erred in ordering each of them to pay a $10,000 parole revocation fine pursuant to section 1202.45 because defendants were sentenced to life without the possibility of parole. The People concede the error. "[A] parole revocation fine is inapplicable where there is no possibility of parole." (People v. DeFrance (2008) 167 Cal.App.4th 486, 505-506.) We accept the concession.
We Decline to Remand This Case To Allow The Trial Court To Calculate Defendants' Presentence Custody Credit
Lastly, defendants contend, and the People concede, that the trial court erred in refusing to award presentence custody credit for actual time served.
Section 2900.5, subdivision (a) provides in pertinent part: "In all felony . . . convictions . . . when the defendant has been in custody, including . . . any time spent in a jail, . . . all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon [the] term of imprisonment . . . ." While section 2933.2 prohibits an award of presentence conduct credit under section 2933 for persons convicted of murder, neither section 2933 nor section 4019 concern custody credit for presentence jail time.
However, section 190.2, subdivision (a)(17)(A) provides: "The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if" the jury finds that the "murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, . . . [¶] . . [r]obbery in violation of Section 211 or 212.5." Here, defendants were convicted of murder in the first degree, the jury found the murder was committed while defendants were engaged in the commission of a robbery, and, as a result, defendants were sentenced to life in prison without the possibility of parole.
Given our affirmance of defendants' convictions for first degree murder and the special circumstance findings, we conclude the judgments need not be modified to reflect an award of presentence custody credit.*fn8
The trial court is ordered to strike the $10,000 parole revocation fines imposed under section 1202.45. In all other respects, the judgments are affirmed.
We concur: NICHOLSON , J. HULL , J.