Ct.App. 5 F056605 Kern County Super. Ct. No. BF11667B Judge: Kenneth C. Twisselman II
The opinion of the court was delivered by: Baxter, J.
A Kern County jury convicted defendant Eduardo Mil, Jr., of first degree murder and made true findings as to the burglary-murder and robbery-murder special circumstances. The jury was fully instructed as to the elements of the felony-murder special circumstances for a defendant who was the actual killer. However, the jury was not fully instructed as to the elements of the special circumstances for a defendant who was not the actual killer, including the requirement that a nonkiller, in the absence of a showing of intent to kill, must have acted with reckless indifference to human life and as a major participant in the commission of the underlying felony. (See Pen. Code, § 190.2, subd. (d); People v. Estrada (1995) 11 Cal.4th 568, 575.) The Court of Appeal determined the omission in the instructions was harmless and affirmed the judgment. We agree that the instructional error was amenable to harmless-error review, but find that the error here was prejudicial. We therefore reverse the jury's true findings on the special circumstances of burglary murder and robbery murder as well as defendant's sentence of life imprisonment without the possibility of parole, and remand the matter for further proceedings.
Around 5:00 a.m. on October 24, 2006, Rolland Coe, 60, was found lying in the doorway of his room at the El Don Motel in Bakersfield. He had multiple stab wounds, which were inflicted by a knife with a blade between three and one-half and four and one-half inches, as well as bruising on his face, which could have been caused by blows from a fist. The knife wounds eventually proved fatal.
Coe had checked into room 11 of the motel the day before. He shared his motel room with Crystal Eyraud, a drug addict who was much younger. Defendant, 35, was Eyraud's boyfriend and a fellow addict. On October 22, defendant had an argument with Eyraud, started a commotion, and was asked to leave the motel. On October 23, he and Eyraud were talking calmly between 10:00 and 11:00 p.m., but the motel manager, Michael McLane, nonetheless told him to leave the premises. Before defendant left, he vowed to Eyraud that he was "going to rob" Coe.
On October 24, Carl Cowen, a convicted felon who was McLane's best friend and Eyraud's stepfather, saw defendant at the motel between midnight and 2:00 a.m. Defendant said he was looking for Eyraud and had heard she was with "a guy in Room 11." If that was true, he said to Cowen, he was "going to beat the hell out of the guy and rob him." Cowen, who was working at the motel doing odd jobs, told defendant to leave the premises. An hour later, Cowen saw defendant talking with Eyraud in front of room 11. Cowen again told defendant to leave. Half an hour later, defendant returned but was told yet again to leave. Defendant did so, but not before repeating his threats.
Around 5:00 a.m., while he was checking the grounds of the motel, Cowen came upon Coe, who was slumped and bleeding in the doorway of room 11. Because Cowen had absconded from parole supervision, Cowen asked McLane to call 911 to report what Cowen had seen. Police found blood on the bed and carpet as well as on an ice chest in the middle of the room and a trail of blood leading into the bathroom. A knife with what appeared to be blood on it was recovered from a trash can about a block from the motel. The forensic pathologist who performed the autopsy on Coe testified that the knife could have caused Coe's injuries.
Neither defendant nor Eyraud testified. However, their statements to police, including a lengthy taped interview with defendant, were admitted into evidence.
During the taped interview on the evening of October 24, defendant denied any knowledge of Coe's death or even of any knife attack. He knew Eyraud was staying at the motel with "an older guy." Late on October 23 or early on October 24, Eyraud had asked him to steal a car "so she could take everything the guy had and go and sell it." She said she was going to give Coe some pills to put him to sleep and then take his "loot," and offered to give defendant some "dope" in exchange. Defendant did not want "to go through all that just to get a dime bag of fuckin' dope that's what she's going to end up giving me anyway," so he refused. They argued, and he left on his bicycle. Defendant denied going back to the motel. However, after being told that Eyraud had taken responsibility for the stabbing, defendant changed his story and gave the following account:
Defendant admitted he did return to the motel on October 24, and said that Eyraud let him into room 11. Coe was seated in a chair and started acting in a belligerent manner. Coe asked Eyraud, "[I]s this the guy? Is this the mother-fucker?" Coe started to stand up, and defendant punched him twice. Coe then jumped on defendant and pushed him down. Defendant got back up and hit Coe again, at which point Coe was screaming and yelling and "started going crazy" as the men continued to fight. Defendant told Eyraud they ought to leave; Coe yelled out to Eyraud, "What's wrong with you, Crystal? What the fuck?" The fight remained even, but defendant eventually escaped and left the motel on his bike. As he ran out, he told Eyraud to run. He said he saw her head towards Cowen's room.
Under further questioning, defendant claimed that Eyraud, during the struggle between defendant and Coe, had yelled at defendant, "Mother-fucker! I told you this was going to happen!" She then told defendant to "just let him go and get up," and (apparently in the same breath) to "[g]et his wallet! Get his wallet!" Coe interjected, "[Y]ou don't really have to do all of this for my wallet." Defendant eventually admitted that he "[p]retty much" knew Eyraud was going to "roll" Coe, that he was jealous of her "selling ass for dope," and that he had wanted Eyraud to give him some of Coe's money. (Eyraud had told him, during their initial conversation, that Coe had a couple of VCR's, some DVD's, and some cash, and that defendant should come back in an hour to get some money.) He also knew Eyraud liked to carry "big old steak knives," but said he did not see any knives at the motel. Defendant originally claimed that the cigarette police found on the bumper of Coe's van, which was parked in front of the motel room, was just a "smoke" he had asked her to get him, but then admitted that the cigarette was a signal that she had money to give him. Coe was supposed to have been "knocked out" by pills and alcohol by the time defendant arrived.
Eyraud told police, in an interview a few hours after Coe's body was discovered, that she had stabbed Coe and then tossed the knife in a trash can as she ran from the scene. She told her mother the same thing. According to Eyraud, she had tried to separate defendant and Coe during the fight but was kicked by Coe in the stomach. Worried that Coe might have thereby caused risk to her pregnancy, Eyraud reached for a knife (which she had earlier stolen from Coe) and stabbed him with it. Eyraud thought she had stabbed Coe only once. She said that the robbery was defendant's idea and that she had been instructed to leave the cigarette on the bumper of the van as a signal for defendant to return.
In an interview with police a couple of days later, Eyraud said she had "flipped out" before stabbing Coe. When asked why she had grabbed the knife in the first place, she said she did so "to stop whatever was happening from happening." She said that defendant ran out of the room first. She did not know how many times she stabbed Coe, nor did she know where she had stabbed him. Eyraud told police, "I'm looking at a lot of time for what I did and I really don't care."
Yet another account of the murder was offered through the testimony of Cowen, who was transported by bus from the jail to court with defendant, Eyraud, and Raquel Rodriquez on January 17, 2007. Cowen said he was two seats behind defendant and overheard defendant talking to Eyraud through the wire mesh separating the men and women. According to Cowen, defendant told Eyraud to "take the rap" for the stabbing because she was "retarded" and "could get away with this," in that she would be sent to an institution for less than a year while he would face life in prison. During this conversation with Eyraud, defendant recited details of the crime: he said he beat up Coe until Coe lost consciousness, then stabbed Coe several times to cover up their tracks. On the way off the bus, Cowen told defendant, who had appeared unaware of Cowen's presence until that moment, that he was "a piece of crap." Defendant replied that the best thing for Cowen was to stay out of it, and added a warning that he had friends who could "take care of" Cowen "on the streets or inside."
Rodriquez told police, in an interview on June 19, 2008, that she too had overheard the conversation on the bus. According to Rodriquez, defendant said that he had "gone crazy" because he thought Eyraud was being unfaithful and that he had "stuck [Coe] and kept sticking him and couldn't stop." Rodriquez, who had expressed concern to police about testifying in court and then claimed at trial to have no recollection of the content of the conversation on the bus, also told police that defendant had threatened to kill Cowen if he did not keep quiet.
Defendant was convicted of first degree murder with robbery-murder and burglary-murder special circumstances. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A), (G)). The court found two prior prison term allegations true (Pen. Code, § 667.5, subd. (b)) and sentenced defendant to life in prison without the possibility of parole, enhanced by two years. In a separate proceeding prior to defendant's trial, Eyraud pleaded no contest to voluntary manslaughter.
The Court of Appeal affirmed. The Court of Appeal determined that the jury, in accordance with the prosecution's argument, must have convicted defendant as an aider and abettor and not as the actual killer. The appellate court acknowledged that the trial court erred in failing to instruct the jury to determine whether defendant, as a nonkiller, was a major participant in the burglary and robbery and acted with reckless indifference to human life, but found the error to be harmless in light of the overwhelming evidence on those elements.
In People v. Anderson (1987) 43 Cal.3d 1104, this court determined that the felony-murder special circumstance, as it then read, applied only to the actual killer or to an aider and abettor who intended to kill. (Id. at p. 1147.) In 1990, the voters approved Proposition 115, which expanded the scope of Penal Code section 190.2 by adding subdivisions (c) and (d). Accordingly, a person other than the actual killer is now subject to the death penalty or life imprisonment without the possibility of parole if that person intended to kill or was a ...