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The People v. John Clyde Abel

March 19, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN CLYDE ABEL, DEFENDANT AND APPELLANT.



Orange County Super. Ct. No. 95CF1690 Judge: Robert R. Fitzgerald

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

A jury convicted defendant John Clyde Abel of the first degree murder of Armando Miller (Pen. Code, § 187, subd. (a)), also finding he had personally used a firearm in the commission of the offense (id., § 12022.5, subd. (a)) and finding true the special circumstance that defendant had committed the murder during the course of a robbery (id., § 190.2, subd. (a)(17)). It imposed a sentence of death. We affirm the judgment.

I. FACTS

A. Introduction

Armando Miller's family owned the Alameda Market in the City of Orange. Every Friday morning, Miller or his father withdrew either $10,000 or $20,000 from the Sunwest Bank in Tustin to provide check-cashing services to the market's customers. On Friday, January 4, 1991, Miller withdrew $20,000. A few moments later, an unidentified man in the bank's parking lot shot Miller once in the head, killing him. The man left, carrying a paper bag. The money was never recovered. Defendant was linked to the crime by the descriptions provided by witnesses who saw the man in the parking lot, the witnesses' selection of defendant's photograph out of photographic lineups, one witness's in-court identification of defendant, and a second witness's testimony that a photograph taken of defendant near the time of Miller's death was a photograph of the man she had seen. In addition, defendant admitted he had been in the market on at least one occasion, and there was evidence he was aware someone from the market typically withdrew large sums from the bank on Fridays. Further, a woman who had participated in a series of armed robberies with defendant later in 1991 testified defendant had told her about killing Miller and given her the murder weapon.

B. Prosecution's Guilt Phase Case

Police responding to reports of the murder found an expended .22-caliber shell casing close to Miller's body, but little other physical evidence. No one saw the shooting, but several witnesses reported seeing a man with a gun, or a man running from the vicinity of the shooting carrying a paper bag.

Detectives showed witnesses numerous photographs and many photographic lineups of men resembling the description of the gunman, but the witnesses reported that none was of the man they had seen. Detectives also interviewed Miller's family and showed them photographs, trying to discover if they knew anyone who might have been the killer, but again to no avail. The investigation was suspended after all leads had been exhausted without bringing the police any closer to identifying the killer. It was reopened on August 3, 1993, after Police Detective Nasario Solis received an anonymous telephone call from a woman who told him Miller was killed by a man named John Abel, who was then serving a long prison sentence for a series of bank robberies. Detective Solis learned that defendant was incarcerated in Folsom State Prison for a number of armed robberies. He obtained defendant's photograph and over the next year attempted to corroborate other information provided by the anonymous caller.

Detective Tom Tarpley picked up the investigation when he rotated into the homicide unit in 1995. In March 1995, he showed witness Bettina Redondo a photographic lineup containing defendant's photograph. Redondo picked defendant's photograph out, saying he was the man she had seen. Tarpley showed the photographic lineup to a second witness, Colleen Heuvelman, who immediately identified defendant as the man she had seen. Tarpley showed the photographic lineup to Miller's mother, America Miller, who reported having seen defendant in the market with James Gano, a regular customer who had also arranged mortgage loans for the business and was aware of the family's practice of obtaining funds on Friday mornings for the check-cashing aspect of the business. Tarpley also contacted Lorraine Ripple, who had been convicted of committing a number of armed robberies with defendant, asking her if she had any information about Miller's murder. Ripple said defendant had told her he killed Miller and had given her the murder weapon.

Linda Pratt, who had been a teller at Sunwest Bank, testified she cashed a $20,000 check for Miller on the morning of his death. A short time later, she heard a popping sound from outside the bank, looked out the window, and saw Miller lying on the ground. She also saw a person wearing a navy blue watchman cap and carrying a bag run away through a gap in the bushes outside the bank.

Bettina Redondo testified she was outside a building next to the bank when she heard what sounded like a gunshot and saw a man standing with his arm extended, holding in his hand a small, smoking gun. The man walked toward her through the bushes. She went back into the building, but watched the man, who passed within approximately 15 feet of her. She looked carefully so she could describe him to the police. He appeared to be in his late 40's or early 50's, was of medium build, and was carrying a brown bag with a holiday design that looked like it was from a grocery store. He wore a dark blue or black watchman cap over his ears and hair, a dark blue windbreaker, and loose trousers. Redondo estimated she observed the man's face for between 20 and 30 seconds. She recalled he was unshaven and had well-defined cheeks and jaw and the beginnings of a mustache.

Redondo related having worked with a police artist to put together a composite picture of the man she had seen, being shown "over a thousand" photographs and selecting a photograph of a man who later was identified as Larry Jones. But after viewing Jones in a live lineup, she realized he was not the gunman. In March 1995, Detective Tarpley showed her another photographic lineup. She picked out defendant's photograph, telling Tarpley "on the record" she was 80 percent certain defendant was the man, but "off the record" she was 100 percent certain he was the man. Redondo explained she had not wanted to be the only person to identify defendant. She did not identify defendant at trial, explaining she was not comfortable because so much time had passed. But she confirmed defendant's photograph was a photograph of the man she had seen.

Colleen Heuvelman testified she was working at the bank on the morning of January 4, 1991, but had to leave early to take care of her son, who was ill. She was acquainted with Miller and chatted with him for a moment on her way out. She left through a door to the parking lot, turned a corner, and nearly ran into a man standing there. Heuvelman got into her car but continued to watch the man while she put the seatbelt on her son and placed her keys in the ignition; she estimated she observed him for well over a minute. She kept watching because it was unusual to see anyone where the man was standing. She described him as a White male, approximately 46 to 48 years old, with high cheek bones, the mustache of a man who had not shaved in three or four days, thin lips, and very dark eyes. He wore a coat and a dark-colored watchman cap. He had a bit of graying hair sticking out from under the cap. When Heuvelman got home, she learned Miller had been shot in the bank's parking lot. She immediately called the police, telling them she thought she might have seen the gunman. The following day, and again about two months later, police showed Heuvelman a number of photographs, but although some resembled the man she had seen, his picture was not among them. In 1995, Detective Tarpley showed her a photographic lineup that contained defendant's photograph. She identified defendant almost immediately. She also identified defendant at trial, stating she was 100 percent certain he was the man in the bank's parking lot on the morning of January 4, 1991.

Lorraine Ripple, who had committed a large number of robberies with defendant, admitted to multiple convictions for robberies committed in 1987 and 1991. She also admitted she had been convicted of assaulting a prison guard, and stated she would be spending the rest of her life in prison. She said she had not been promised anything in return for her testimony and would not benefit from it; to the contrary, she believed her overall situation would be made more difficult. Ripple testified she had known defendant since the early 1960's and had spent time with him on and off over the years. In March 1991, after being released from prison, she lived for a while with Deborah Lankford. During that time, defendant spent five days a week with her. He was married at the time and spent weekends with his wife. Ripple reported that once when they were in bed together defendant told her he had killed someone in Tustin, telling her it was "an easy score, that he had hit a guy inside a bank, coming out. And [the victim] had a business, a little mini store . . . and he cashed checks for a lot of 'wetbacks' . . . ." Ripple testified defendant had given her the gun he used to kill Miller, which she described as a .22-caliber automatic handgun that ejected casings. She later traded it to a Mexican connection for drugs.

Ripple stated defendant always had a mustache in 1991. He had a blue windbreaker and a navy knit watchman cap he wore with the cuff turned up. He used glasses for reading, but did not normally wear them at other times. When shown a June 1991 picture taken of defendant wearing a windbreaker and a watchman cap, Ripple reported it accurately represented defendant's appearance at that time.

Ripple confirmed Detective Tom Tarpley had contacted her in 1995, asking if she had any information about Miller's death. She said she did not tell him anything immediately, but after he had "earned her respect" she told him what she knew, even though she was aware she would receive no benefit for it.

On cross-examination, Ripple agreed that when Detective Tarpley first contacted her he told her defendant had "given her up," but she said she knew it was not true, asserting investigators always said such things to try to play people off against one another. Defense counsel also brought out, apparently in an attempt to suggest Ripple had fabricated stories about defendant, that Ripple told Tarpley defendant had been involved in other murders. Ripple also testified that in early 1991 a lot of guns were "floating around" among her acquaintances, including more than one .22-caliber weapon, several MAC-11 "machine pistols," and an AK-47 assault rifle. They traded or provided guns to one another depending on need. She had seen defendant with two MAC-11's. Defendant gave her the gun he used to kill Miller after she asked for a "hot gun" that she would dispose of after committing a crime. Ripple reaffirmed she traded the gun to a Mexican connection for drugs, adding she later robbed the connection and had a bad habit of robbing connections.

Detective Steven Rubino testified that in October 1991 he was part of a team that had arrested defendant in connection with another offense. Police searching defendant's car found in it a loaded MAC-11 semiautomatic pistol, a loaded .22-caliber pistol, extra ammunition for both weapons, a photograph of James Gano, a pill bottle with Lorraine Ripple's name on it, and two savings passbooks that did not belong to defendant. The .22-caliber pistol was not the weapon used to kill Miller.

C. Defendant's Guilt Phase Case

Defendant testified on his own behalf. He admitted to "around two dozen" felony convictions, "almost all for robbery," many of which were for armed robbery. He admitted he had committed bank robberies in 1973 and 1981. He admitted to a series of armed robberies in 1991. He also admitted he was serving a state prison sentence of 44 years 8 months, and a federal prison sentence of 53 years 8 months. Defendant admitted he had once gone with James Gano to the Alameda Market. He admitted knowing Lorraine Ripple, but disputed her claim that they had been acquainted since the 1960's, asserting he first met her in March or April 1991, when she was living with his friend, Deborah Lankford. He explained he could not have known Ripple in the 1960's because he was in prison for most of that decade. He denied ever having an intimate relationship with Ripple. He denied telling her he had committed other murders or telling her the Tustin killing was "an easy score." He denied giving Ripple a .22-caliber automatic or any kind of gun. He said she had never told him she had given the gun to a connection, but she did tell him she had robbed her connection three times. Defendant stated he had been paroled in February 1990, after 17 years in prison. He initially worked at a restaurant, but began to work for James Gano in late 1990, after Gano started a mortgage company. He recalled working on a loan for Elaine Tribble, stating he had visited her at her home in Long Beach about a half-dozen times. He thought he might have delivered mortgage documents to her at her home on January 4, 1991, and he testified that after leaving Tribble's home that day he went to Wilmington and then to San Pedro to visit another potential customer. In San Pedro, he used a pay phone to make a collect call to Gano's office. He had been trying to obtain records of the call but understood from his lawyers and investigators that the mortgage company's records for the period from January 3 through February 4, 1991, were missing.

Defendant denied standing outside the Sunwest Bank at 10:30 a.m. on the morning of January 4, 1991, or shooting anyone there. He suggested he could not have been the man in the parking lot because, unlike that man, he wore glasses, stating he wore glasses in prison before his release on parole in 1990 and continued to wear them thereafter.

On cross-examination, defendant admitted he had been out of prison for various periods from 1966 until 1990, sometimes because he had escaped; it thus was possible for him to have become acquainted with Ripple in the 1960's. He also admitted committing armed robberies on 11 occasions during those years. He admitted gambling and using drugs in 1991, but stated he did not start using until February of that year, approximately one month after Miller was killed. He admitted committing approximately 10 robberies with Ripple. He also admitted he and Deborah Lankford had once broken into a residence and robbed the occupants at gunpoint, taking their savings passbooks. He believed the passbooks had been recovered from the trunk of his car when he was arrested in October 1991.

Defendant's friend, Deborah Lankford, testified for the defense. She admitted she was in state prison serving an 11-year term for armed robbery, had committed a number of other felonies, including numerous armed robberies and several bank robberies, and would later be going to federal prison. She said she had known defendant for nearly 20 years, but denied having any romantic or sexual relationship with him. She testified that during 1990 and early 1991, defendant was living in Fullerton, near a restaurant where he worked. His wife-to-be, Vicki, joined him on the weekends. Lankford provided an alibi for defendant, asserting he had been at her house every day in early 1991 taking care of her because she was sick with the flu. She thought he might have taken her to a clinic on January 4, 1991.

Lankford testified she introduced Ripple to defendant in 1991. She never saw anything suggesting defendant and Ripple were romantically involved, but she reported that by June 1991, Ripple was talking about defendant as if he belonged to her. Ripple also seemed to believe Lankford was in a sexual relationship with defendant and was telling other people bizarre stories about Lankford. In February 1996, Lankford wrote to Ripple, complaining Ripple was spreading vicious lies about defendant and Lankford. Ripple wrote back that defendant had used her and she was getting even with him. But Lankford could not produce Ripple's letter, explaining she had sent it to her parents from prison but they had never received it.

On cross-examination, Lankford admitted she had not told anyone defendant might have been with her when Miller was shot, even though she had been in regular contact with defendant and knew he had been accused of murdering Miller. The prosecutor showed her a letter defendant had written to her in which he made a number of sexual comments and described "doing it" to her in the dining room and up the stairs into the bathroom. Lankford claimed she had not received the letter. She admitted defendant sometimes made sexual remarks to her, but said again that she had never been intimate with him, theorizing that by "doing it," defendant might have been referring to taking drugs. The prosecutor also asked Lankford about Federal Bureau of Investigation (FBI) records detailing a statement she had made. She denied making the statement, denied involvement in the crimes described in the records, and denied she told agents defendant had a gambling habit. She also said she did not recall defendant wearing a dark-colored windbreaker jacket or a navy blue watchman cap. When she was shown the June 1991 photograph of defendant wearing the jacket and cap, she responded she could not say the photograph was of defendant and did not recognize the clothing.

Elaine Tribble confirmed that in late 1990 and early 1991 she was talking to defendant about obtaining a loan from James Gano's mortgage company. She recalled defendant had come to her home in Long Beach on several occasions, but she could not remember which days he visited or exactly when she filled out the mortgage application. She had been unable to locate any of the loan documents and could not remember if they had been returned to her.

Miller's fiancee, Holly Daniels, testified she had worked at or visited the Alameda Market in late 1990 and early 1991. She was very familiar with James Gano and had seen him at the market, but she did not recall that he had ever brought any friends with him and did not remember seeing defendant. She thought that Larry Jones, the man originally picked out of a photographic lineup by Bettina Redondo, might have been ejected from the market for drunkenness.

Sergeant Mark Bergquist, who had been involved in the first phase of the investigation, confirmed that Redondo had picked Larry Jones out of a photographic lineup. He recalled both America Miller and Holly Daniels saying Armando Miller had forcibly ejected Jones from the market. Bergquist took Redondo to a live lineup in March 1991. He remembered seeing Redondo become agitated when faced with Jones, but he said she picked another man out of the lineup and, as they were leaving, said that man also was not the person she had seen. Bergquist said the police had investigated whether Jones or another man might have been involved in Miller's death, but the investigations did not lead to any arrests.

No one who had seen the man in the bank's parking lot said he wore glasses. Heuvelman was particularly struck with the man's deep-set eyes and specifically stated he had not worn glasses. John Sano, defendant's parole officer in 1990 and 1991, testified he thought defendant might have worn glasses in 1990. Sano remembered defendant having a mustache but did not think it was the style of mustache described by the prosecution's witnesses. But on cross-examination, Sano agreed he was unlikely to remember if a client had worn glasses on a particular day or to perfectly recall the appearance of a client's mustache. He also agreed defendant was not wearing glasses in a photograph taken of him on the day of his release and had not worn glasses on that day.

Optometrist Dr. Eric Bass testified he had provided glasses to defendant in 1990. He stated his records indicated that, although defendant needed some correction to see distance in his right eye, he required only a very slight correction to his left eye for distance. In his opinion, a person with defendant's prescription would have difficulty reading, but would be able to see and probably would be permitted to drive without correction.

Susan Maitland, the sister of defendant's former wife, Vicki, testified she had been acquainted with defendant since the late 1980's and had socialized with defendant and Vicki in late 1990 and early 1991. She said defendant always wore glasses, was clean and neat in appearance, and his mustache did not match the mustache described by prosecution witnesses. On cross-examination, she admitted she could not recall if defendant always had the same style of mustache.

D. Prosecution's Penalty Phase Case 1. Other criminal activity (Pen. Code, § 190.3, factors (b) and (c))

The prosecution introduced evidence of 15 separate robberies committed by defendant, showing further that defendant had been armed during at least 14 of them.

On September 8, 1981, defendant and three other men, all armed, robbed a Los Angeles savings and loan. During the robbery, one of the men pointed a gun at the teller's face. On June 14, 1991, defendant and another man, both armed, entered a bank in Hacienda Heights, yelling and screaming. They threatened to blow the branch manager's head off; made all the employees and customers lie on the floor; pointed guns between the legs of two male tellers, threatening to blow their "f--ing balls off" if they did not give them hundreds fast enough; and threatened to hurt a baby if the baby did not stop crying. On June 25, 1991, defendant and another man, shouting and brandishing guns, held up a bank in Rowland Heights. One of the men, using a large automatic gun, shot through the glass on the "bandit barrier window" covering the teller service area. The other man had a handgun, which he pointed in turn at each teller, forcing the tellers to give him the cash out of their drawers.

On August 29, 1991, defendant and Ripple committed an armed robbery of a pharmacy and its owner. Defendant was armed with an Uzi submachine gun. On September 4, 1991, defendant and Ripple robbed a pizza restaurant. During the course of the robbery, defendant brandished a weapon that looked like an Uzi. On September 6, 1991, defendant and Ripple robbed a pharmacy in San Pedro and defendant threatened to shoot anyone who followed him. On September 8, 1991, defendant and a woman robbed a florist's shop in Harbor City. Defendant was armed with an Uzi. On September 12, 1991, defendant and a woman robbed a Hallmark store in Seal Beach, during which they herded everyone to the back of the store and forced an employee to open the cash register. On September 18, 1991, defendant and Ripple robbed a pizza restaurant in Lakewood. Defendant put a gun to the owner's head. He became upset as the owner fumbled trying to open the cash register, and Ripple admonished him not to hurt the owner. As they left with the money, defendant told the owner: "Don't come out or I'll shoot you." On September 19, 1991, a woman committed an armed robbery of a florist's shop in Wilmington. After leaving the shop, the woman got into a car driven by defendant.

On September 24, 1991, there was a disturbance at an Alpha Beta supermarket in Hacienda Heights. At the direction of the store's manager, checker David Clure grabbed a woman who was attempting to run out of the store. As Clure wrestled with the woman near the store's entrance, defendant drove up in a car that did not have any license plates. Defendant got out, holding a gun in his hand. He said, "Let her go," and fired the gun into the air. When Clure continued to hold onto the woman, defendant fired another shot into the asphalt near Clure's foot. He fired a third shot, hitting the building over the entrance to the store, and then fired into the door frame. Clure released the woman, who got into the car. Another woman was in the backseat of the car, holding a pistol.

On September 25, 1991, defendant and a woman robbed a San Pedro nail salon and its customers. Defendant, armed with what looked like a large rifle or shotgun, yelled at the customers to throw their purses into the center of the room where they were collected by the woman. On September 28, 1991, defendant entered a shoe store, pulled out a gun, and told an employee, Jerry Song, "Open the register. If you move, I'll kill you." The store's manager, Mark Inki Kim, tried to close the cash drawer and grabbed at defendant's hands. Defendant attempted to shoot Kim several times, but his gun failed to fire. He ran out of the store, chased by Song and Kim, and escaped by diving into a car being driven by a woman. On October 1, 1991, Ripple, armed with a gun, robbed the owner of a San Pedro pet grooming business. Ripple left in a car driven by defendant, who was holding a gun that looked like a machine gun.

On October, 3, 1991, Dolores and Fred Clay, after withdrawing approximately $400 from their bank, were having lunch in a Long Beach restaurant. They noticed defendant and Deborah Lankford at the bar. Defendant and Lankford broke into the Clays' residence later that day. Defendant pointed a gun at them and pushed Fred Clay back into a chair. Defendant took the Clays' money, jewelry, and a savings account passbook. The passbook was recovered from the trunk of defendant's car when he was arrested later in October 1991.

The jury was also provided with certified documents disclosing that defendant had suffered a 1963 conviction for armed robbery, a 1996 conviction for armed robbery, a 1976 conviction for possession of marijuana, a 1967 conviction for felony escape, a 1973 conviction for bank robbery, 1977 convictions for escape from federal custody and bank robbery, a 1981 conviction for bank robbery, and a 1986 conviction for racketeering and extortion.

2. Victim impact evidence (Pen. Code, § 190.3, factor (a))

Armando Miller's father, Robert Miller, testified that Armando was his oldest son. Robert was working at the family's market when someone from the bank called, telling him there had been a robbery and Armando had been shot and was being taken to the hospital. At the hospital, a doctor told him Armando had been shot in the head and was brain dead. Robert said it felt like "falling in a hole . . . something you're not expecting and it's hard to believe." He said the hurt and the sadness never go away; "[t]he only thing you can do, I guess, is just keep on going and think of other things in your life . . . ."

Armando's mother, America Miller, testified that Armando had been a very happy man. At the time of his death, he had a two-month-old daughter who had been very precious to him. America spoke about how difficult it was to lose her son, adding that they had not only lost Armando, "we lost another one, Bobby. He got real hurt because he love Armando . . . . [¶] So Bobby got hurt in his heart. He got so much hate, you know, that he can't trust, who could do this to his brother, so this make him sick for his heart. . . . [¶] So, you know, he don't just kill me one son he kill me two sons." She testified that her other children also missed Armando very much.

E. Defendant's Penalty Phase Case

The defense presented no evidence at the penalty phase.

II. PRETRIAL AND GUILT PHASE ISSUES

A. Delay in Bringing Charges

Defendant, noting that the police had learned his name from the anonymous caller on August 3, 1993, but charges were not filed against him until June 23, 1995, contends the case should have been dismissed for investigative delay. We disagree.

A defendant's state and federal constitutional speedy trial rights (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) do not attach before the defendant is arrested or a charging document has been filed. (People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Nonetheless, a defendant is not without recourse if a delay in filing charges is prejudicial and unjustified. The statute of limitations is usually considered the primary guarantee against overly stale criminal charges (People v. Archerd (1970) 3 Cal.3d 615, 639), but the right of due process provides additional protection, safeguarding a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence (Nelson, at p. 1250).

A defendant seeking relief for undue delay in filing charges must first demonstrate resulting prejudice, such as by showing the loss of a material witness or other missing evidence, or fading memory caused by the lapse of time. (People v. Archerd, supra, 3 Cal.3d at pp. 639-640.) Prejudice to a defendant from precharging delay is not presumed. (People v. Nelson, supra, 43 Cal.4th at p. 1250; People v. Catlin (2001) 26 Cal.4th 81, 107.) In addition, although "under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process . . . . If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Nelson, at pp. 1255-1256.)*fn1 If the defendant establishes prejudice, the prosecution may offer justification for the delay; the court considering a motion to dismiss then balances the harm to the defendant against the justification for the delay. (Id. at p. 1250.) But if the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified. (Serna v. Superior Court (1985) 40 Cal.3d 239, 249; Scherling v. Superior Court (1978) 22 Cal.3d 493, 506.)

Defendant claims he met his burden of showing prejudice from the precharging delay through evidence that Elaine Tribble could not remember the specific date defendant had delivered mortgage documents to her in Long Beach and was unable to produce any documents that might have supported his claim of visiting her on January 4, 1991. But defendant made no showing that Tribble's recall would have been more specific had she been contacted earlier, or that she could or would have provided documentary evidence to support his claim. To the contrary, Tribble said she could not remember if any mortgage documents had been returned to her, but if they had been, she had probably destroyed them. Defendant's claim that Tribble would have provided further support for the defense had police arrested defendant earlier is thus mere speculation.

Defendant also complains the delay caused his memory and the memory of James Gano to fade, but again he made no showing of actual prejudice. The record reflects that both defendant and Gano had detailed recall of events occurring on or near January 4, 1991. For example, defendant could describe Tribble's house and its location. He recalled Tribble had told him she had changed her mind about the loan because she would be getting a loan from a family member. He stated that after returning the loan documents to Tribble, he went to Wilmington and then to San Pedro to talk to a prospective client but was unable to find the prospective client. He then called the mortgage company from a pay phone in San Pedro located on Gaffney Street between Second and Fourth Streets, speaking with Gano's partner. Gano did not testify at trial, but at the preliminary hearing he specifically recalled defendant had come to his house on the evening of January 4, 1991. Gano provided a detailed report of the matters they discussed and the actions they had taken as a result of their discussion. Moreover, far from aiding defendant, Gano's testimony at the preliminary hearing directly and explicitly incriminated him.*fn2

Defendant also complains the delay rendered him unable to obtain telephone records from the mortgage company that would have shown he called the company from San Pedro on January 4, 1991. When defendant first raised the issue of precharging delay, the mortgage company records appeared to have been lost or destroyed, but by the time defendant testified at trial, the records, comprised of eight boxes found in a storage locker, had been located and examined. Defendant submitted the declaration of his investigator, Kristin Smith, that she had searched through all eight boxes of records for any loan documents that might have related to Elaine Tribble and for any telephone bills for calls received on January 4, 1991. She found telephone billing statements for August 1991 and January and February 1992, but no records for January 1991. Defendant has not shown Smith would have found additional records had the investigation proceeded more quickly.

Defendant also failed to show the delay prevented him from obtaining records from the telephone company. His investigator, Smith, asserted that on August 22, 1997, she requested copies of billing statements for Money Funders Mortgage that included January 1991, but was told the telephone company's records extended back only to August 1991. Assuming, as Smith's declaration suggests, the telephone company kept records for a six-year period, defendant had nearly one and a half years after the date of his arrest in which to obtain the records he claims would have exonerated him. Further, evidence of a call made on January 4, 1991, would not have provided him with an alibi. According to defendant's testimony, the call was made after he visited Tribble and conducted other business, suggesting that if it was made at all, it was made long after the murder.

Defendant, accordingly, did not meet his initial burden of showing prejudice resulting from the precharging delay. The prosecution therefore was not required to show justification for the delay, and the court had no obligation to balance the harm from the delay against the justification. (Serna v. Superior Court, supra, 40 Cal.3d at p. 249.) But the record also reflects that the police actively investigated the case after receiving the anonymous call, obtaining defendant's photograph and attempting to corroborate the information provided by the caller.*fn3 Defendant complains that police investigators could have pursued the case more aggressively, matters might have moved more quickly had investigators immediately shown defendant's picture to witnesses, and investigators chose to give priority to more recent cases or might have factored into their decisions that defendant would be incarcerated for a long time.

But "[a] court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. ' . . . Thus, the difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a valid justification for delay . . . .' " (People v. Nelson, supra, 43 Cal.4th at pp. 1256-1257.) For the same ...


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