(Super. Ct. No. 09F03013)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In 1991, 65-year-old Richard Jackson picked up defendant Carolyn Marie Simmons on a street corner in the Oak Park neighborhood of Sacramento and brought her back to his apartment. His body was found the next morning on his couch with a fractured skull and several deep lacerations to the right side of his head caused by multiple strikes from a blunt object. His body was naked from the waist down and covered by a blanket. A nylon Brillo pad was placed in his mouth. While defendant's fingerprints were found in Jackson's apartment and vehicle, the District Attorney determined there was insufficient evidence to prosecute her for the murder.
In 2009, defendant's son, Anthony Tyree, contacted police and reported that his mother had confessed to robbing and killing an "old dude" at the man's home in Oak Park. According to Tyree, defendant stated she became angry when the man tried to postpone paying her, so she hit him in the head with an object and took "every dime in his pocket." Defendant also told her son where they were living when the crime occurred, which led him to estimate the crime was "18 or 19 years old." This revelation caused police to conduct further investigation into the Jackson murder, during which police discovered defendant had confessed to other people over the years.
In 2010, defendant was tried by jury and convicted of second degree murder. She was sentenced to an indeterminate term of 15 years to life in state prison.
On appeal, defendant contends the trial court prejudicially erred and violated her constitutional rights by: (1) declining to dismiss the action for pre-accusation delay; (2) erroneously instructing the jury with respect to aiding and abetting; (3) erroneously instructing the jury with respect to voluntary intoxication; (4) denying a defense request to re-open closing argument; (5) declining to declare a mistrial after the jury was mistakenly read a portion of a certain witness's testimony that was provided during a hearing outside their presence; and (6) admitting into evidence Tyree's out-of-court statement that defendant had previously threatened to kill another man. Defendant further contends: (7) the cumulative prejudice arising from the foregoing assertions of error requires reversal; and (8) the main jail booking and classification fees imposed by the trial court must be stricken because there is insufficient evidence of her ability to pay.
As we explain, defendant's contentions lack merit. Defendant's claim that her constitutional right to due process was violated by the delay in charging her with Jackson's murder fails because substantial evidence supports the trial court's conclusion that the justification for the delay outweighed any prejudice suffered by defendant. With respect to defendant's assertions of instructional error, we conclude any error to have been harmless. We also reject defendant's claim that her constitutional rights were violated by the trial court's decision to deny her request to re-open closing argument because the jury question that prompted the request did not introduce a new theory to the case. We further conclude that while the jury was mistakenly read a portion of a certain witness's testimony that was provided during a hearing held outside their presence, there is no reasonable possibility the outcome would have been different had the jury not heard this hearing testimony. The hearing testimony and trial testimony were nearly identical. Nor did the trial court abuse its discretion by admitting Tyree's out-of-court statement as a prior inconsistent statement. Defendant's claim of cumulative prejudice also fails. Finally, defendant's challenge to the booking and classification fees has been forfeited. Accordingly, we affirm the judgment.
On June 16, 1991, Jackson made plans to have Father's Day dinner with his close friend Addie Hayes. Jackson lived alone in a small apartment on Clauss Court in South Sacramento, on the periphery of Oak Park. Hayes lived a few blocks away. Because Jackson was an alcoholic, Hayes was the payee for certain government benefits Jackson received and made sure his rent and utilities were paid. Jackson called Hayes on a nightly basis to inform her that he had made it home safely. Hayes also had a key to Jackson's apartment in case she needed to check on him. That afternoon, Jackson called Hayes and told her that he might not come over for dinner and to save him a plate of food for the next day. Hayes became worried when Jackson did not call to check in later that night. The next morning, after a couple of unsuccessful attempts to reach him on the phone, Hayes went to Jackson's apartment and discovered his body on the couch.
As already mentioned, Jackson had been repeatedly hit in the head with a blunt object, "something like a hammer," and had "multiple deep lacerations of the right side of his head." His skull, cheekbones, and eye socket were fractured. Jackson also suffered blunt-force injuries to the right side of his neck. His carotid artery was "torn almost completely through," his jugular vein was "torn completely," and the right portion of his thyroid gland was "crushed and torn." Jackson did not have any defensive wounds on his body, suggesting that the first blow "could have been an incapacitating blow, a blow to the side of the head, possibly the one that caused the [skull] fracture."
Hayes yelled for the apartment manager, who called the police. When Detective Dick Woods arrived, he noted there were no signs of forced entry. Nor was any blood found outside of the apartment. On the couch in the living room, Jackson's body was naked from the waist down and covered with a blanket. A nylon Brillo pad was placed in his mouth. Blood covered Jackson's head and neck, staining his previously white shirt. A blood swipe was found on his left thigh and blood spatters were found on both legs beneath the blanket. The blanket itself appeared free of blood. Blood spatters were also found on three living room walls, the ceiling, and the coffee table. There was no sign of blood in either the kitchen or bathroom. Based on the location of the blood and the spatter patterns, Detective Woods concluded all of the blood came from Jackson and declined to have any of it tested.
The overall appearance of the apartment was clean and orderly. There were no signs of ransacking. Several items were on top of the coffee table, including an empty bottle of Seagram's Seven Crown whiskey, a jar of Vaseline, four prescription bottles made out in Jackson's name, and a cardboard Brillo pad wrapper that had been torn into two pieces. Jackson's pants were on the floor by the front door. Police searched the pants and found a lighter, pocketknife, and soiled linen. They did not find a wallet, money, driver's license, or car keys either in the pants or anywhere else in the apartment. The bedroom was also neat and clean, with the exception of the bed's mattress being off of the frame and pushed about a foot and a half toward the wall. A closet door in the hallway was partially open. Inside the closet was an assortment of tools. Police found nothing in or around the apartment they believed to be the murder weapon.
Jackson's car was also missing. It was found in Oak Park the next morning, illegally parked at the intersection of Martin Luther King Boulevard and 22nd Avenue. The driver's seat was positioned as close to the steering wheel as possible. Several cigarette butts were in the ashtray, some of which were marked with lipstick. There did not appear to be any blood in the vehicle.
Police processed both the apartment and vehicle for latent fingerprints and interviewed several people in connection with the crime. Defendant became a suspect after her fingerprint was found on the toilet seat in Jackson's apartment and was brought in for questioning. After additional fingerprints were matched to defendant, she was again questioned by police.*fn1 At the time, defendant lived at her mother's house on Schreiner Street in South Sacramento. Police executed a search warrant at this location, but found nothing tying defendant to the crime. Defendant's son was present during the search. The District Attorney determined there was insufficient evidence to prosecute defendant for the murder.
The case went cold for nearly 18 years.
On January 23, 2009, Tyree walked into the police station and told Detective Kyle Jasperson that his mother had confessed to committing a murder. Tyree explained that on a Sunday morning the previous summer, defendant told him that she wanted to go to church but was not able to do so. Tyree suggested that she go to church with her neighbors, Dan Elliott and his wife. Defendant then stated that she was not allowed to go to their church because she had previously told their pastor, who was also a police officer, that she was "involved in a homicide."
After some coaxing, defendant confessed certain details of the crime to her son. Tyree explained that defendant, who was "a known prostitute," told him that she was hanging out in Oak Park when an "old dude" picked her up and offered her money to come over to his house. Defendant agreed and accompanied the man to his house. But when the man tried to postpone paying her the money he promised, defendant became angry and "picked up some type of object." The man "took a drink or turned his head," at which point defendant "hit him in the head really hard." Defendant "took every dime in his pocket and left," taking the murder weapon with her. She then "went somewhere and changed her clothes."
Defendant also told her son that the crime occurred when they lived on Schreiner Street. Tyree, who was 21 years old at the time, remembered the police searching the house and bringing his mother in for questioning. He estimated the crime occurred between 1988 and 1990, stating the crime could not have happened after he was arrested in January 1991 and sent to prison. Detective Jasperson did not find a cold case matching the description Tyree provided during the specified years. Jasperson then checked Tyree's criminal record and discovered that he was actually arrested in January 1992. Expanding the search to include 1991, Jasperson found that the Jackson murder matched Tyree's description.
The next month, Detective Jasperson contacted the bishop of the church attended by the Elliotts between 2001 and 2004, Stephen Hinkson. Hinkson, who was also a police officer, told Jasperson that a woman had come to the church "about eight years ago" and stated that she was "involved" in a murder. When Jasperson showed Hinkson a picture of defendant from 2001, he could not positively identify her as the same person, but stated that she was "the same race" and "about the right age." At trial, Hinkson testified that while the woman did not go into details, she did state that "it was a male victim," that "the cause of death may have been a blunt force trauma," and that she felt "responsible" for the man's death. Hinkson told the woman that she would have to reveal everything she knew about the murder to law enforcement before she could become a member of the church.
On March 3, 2009, Detective Jasperson tried to contact defendant at her residence. Tyree answered the door. He told Jasperson that his mother was not home, but that she had also confessed the murder to Rebecca Person, a close friend of the family. At Jasperson's request, Tyree went down to the police station and called Person on the phone. During the phone call, which was recorded, Tyree asked Person whether defendant had told her that "she killed somebody" and then changed the story and said that "she cleaned up the crime scene" after somebody else committed the crime. Person responded: "Yeah, something like that. I don't know. I don't know what to believe."
The next morning, Tyree called Detective Jasperson and said that his cousin, Alicia Joseph, might have information about the murder. Jasperson then called Joseph on the phone and told her that he was investigating an old homicide that potentially involved defendant. Joseph responded: "Well, I know that she confessed herself to me." As Joseph explained, defendant stated that she went to an "older" man's house, and when he "made her mad," she picked up an object and "hit him on top of his head, and she just kept hitting him." Defendant told Joseph that after she killed the man, she "cleaned herself up, and she cleaned up as much as she could so she wouldn't get caught." Defendant also told Joseph that she was questioned by police in connection with the murder. Joseph believed defendant confessed to her in order to "get it off her chest."
On March 5, 2009, Detective Jasperson provided Tyree with a police "bait car," which was equipped with a hidden video camera and audio recorder. Tyree had previously agreed to use the car to pick up defendant and engage her in conversation about the murder. When Jasperson spoke to Tyree after he dropped defendant off, Tyree stated that he asked his mother why she told Person about the murder. Defendant responded that she "felt guilty about it." For some reason, the car's equipment failed to record the conversation.
That night, Joseph called the police and reported that defendant had assaulted her with a deadly weapon. Defendant was arrested and taken to jail. She was not under arrest for the murder.
On March 6, 2009, Detective Jasperson contacted Person at her home. After a brief conversation in the kitchen, Person asked if they could talk somewhere else, and the interview was moved to the police station. At the station, Person explained that an emotional defendant called her one night at around 10:30 p.m. and said: "I just can't live with myself, things that I've done in my life." Person tried to console defendant by saying that God would forgive her for whatever she had done. Defendant responded: "I killed somebody." Person said that she did not want to discuss the matter over the phone and agreed to meet defendant at the Bonfare Market on Broadway.
At the market, defendant told Person that two male drug dealers killed a man in front of her and forced her to clean up the crime scene. According to defendant, one of the drug dealers promised to give her "some dope" in exchange for helping him "get in contact" with the man. She agreed. Pursuant to the plan, when defendant went to the man's house, the drug dealers showed up and defendant opened the door for them. The drug dealers killed the man in front of her and demanded that she clean up the crime scene. When she refused, one of the drug dealers pointed a gun at her head and forced her to do so. After defendant used ammonia and bleach to clean up the crime scene*fn2 , the drug dealers told her "you better keep your mouth shut" and dropped her off a couple blocks from her mother's house. Defendant also stated the fact that the drug dealers needed to "go through her" to get in touch with Jackson should have tipped her off that this "wasn't a good situation."
As Detective Jasperson drove Person home following the interview, she told him that she remembered the "street name" of one of the drug dealers defendant claimed was responsible for the murder, "Little Ray." The next two days, Person twice visited defendant at the jail. During the first visit, Person told defendant that she had spoken to Jasperson about the murder and told him that two drug dealers had committed the crime. Defendant responded: "You shouldn't have even told him that." Person also told defendant that she made up the name "Little Ray" because she felt pressured. During the second visit, defendant told Person that instead of two male drug dealers, two women were actually responsible for the murder. After this visit, Person called Jasperson and told him that defendant had "changed her story," and that "now there were two females who were supposedly responsible or involved in this homicide." Person stated that this was the first time defendant told her this version of the murder.
On April 8, 2009, Detective Jasperson went to Person's house to follow up on her conversations with defendant at the jail. By this point, defendant had been released from jail and was at Person's house. Jasperson spoke with Person alone in the driveway. Person continued to assert that defendant had told her that two male drug dealers committed the murder and that "Little Ray" was the name of one of the drug dealers.
After obtaining permission to enter the house, Detective Jasperson spoke to defendant alone in one of the back rooms. Defendant admitted to being at Jackson's apartment the day he was killed, but claimed "there were two females who came walking into the apartment as she was leaving." Defendant denied that drug dealers were involved. Jasperson then brought Person into the room and asked whether defendant had told her that two drug dealers had committed the murder. Defendant answered that she never said that to Person. Person's only response was that "she did not want to be involved in this." Defendant then repeatedly denied that drug dealers were involved in the murder. She then revised her story about the two women who were purportedly involved, and said that they were not walking into the apartment, but were instead coming into the apartment complex as she left. Defendant provided no names for these women.
As already mentioned, aside from defendant's statements to Tyree, Joseph, Person, and Hinkson concerning the murder, she left several fingerprints both in Jackson's apartment and in his vehicle. Two such prints were found on the Brillo pad wrapper on Jackson's coffee table.
Delay in Bringing Charges
Defendant contends the trial court violated her state and federal constitutional rights to a fair trial and due process by denying her motion to dismiss the case. According to defendant, the 18-year delay in bringing charges for Jackson's murder was both unjustified and prejudiced her defense. She is mistaken.
We begin by noting that "'[t]he statute of limitations is usually considered the primary guarantee against bringing overly stale criminal charges,' and there 'is no statute of limitations on murder.' [Citation.]" (People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Nevertheless, "[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.]" (People v. Catlin (2001) 26 Cal.4th 81, 107; People v. Nelson, supra, 43 Cal.4th at p. 1250.)
While "[a] claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant" (People v. Catlin, supra, 26 Cal.4th at p. 107), "under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process." (People v. Nelson, supra, 43 Cal.4th at p. 1255.) As our Supreme Court has explained: "'The ultimate inquiry in determining a claim based upon due process is whether the defendant will be denied a fair trial. If such deprivation results from unjustified delay by the prosecution coupled with prejudice, it makes no difference whether the delay was deliberately designed to disadvantage the defendant, or whether it was caused by negligence of law enforcement agencies or the prosecution. In both situations, the defendant will be denied his right to a fair trial as a result of governmental conduct.' [Citation.]" (Ibid.) However, "whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Id. at p. 1256.)
Whether delay in bringing charges is unjustified and prejudicial is a question of fact, the trial court's resolution of which "'must be upheld on appeal if it is supported by substantial evidence.' [Citation.]" (People v. New (2008) 163 Cal.App.4th 442, 460 (New).) As we shall explain, substantial evidence supports the trial court's conclusion that the justification for the delay outweighed any prejudice suffered by defendant.
Defendant accurately describes the relevant background in her motion to dismiss the case: "The investigation, at the time of discovery of the decedent, continued in the usual manner: [h]omicide detectives were assigned to the case; evidence was collected; [Jackson's] car was located and searched; photographs were taken; [defendant's] home was searched; witnesses were interviewed. None of the evidence collected or witnesses interviewed proved that [defendant] had killed [Jackson]." Accordingly, "the determination was made that there was insufficient evidence to support any charges being filed against [defendant] or anyone else." Eighteen years later, there was a "'change'" which prompted the filing of charges: Tyree walked into the police station and informed police that his mother had confessed to committing the crime. Subsequent investigation revealed that defendant had also confessed to other people.
Defendant argued in her motion to dismiss that, notwithstanding these changed circumstances, the delay in prosecution was not justified because law enforcement should have done a more thorough investigation at the time of the murder. Defendant further argued the delay in bringing charges prejudiced her defense because of "the loss and destruction of physical evidence, the loss of witnesses, and the loss of some of the witnesses' ability to recall and remember events." With respect to the loss of witnesses, defendant asserted, "Millicent Slater, the neighbor, and the decedent's son Richard Jackson, Jr., with whom he had a volatile relationship, are both dead. Furthermore, Blue and John Gaines, the culprits in this homicide, are likewise dead." Defendant offered no evidence that these individuals were the murderers.
With respect to the loss of witness memories, defendant argued: "Since so much time has passed, it is now impossible to test the observations of witnesses on the night in question or test the accuracy of what the police claim was said that night. It is impossible to ask the questions that were not asked at the time of [Jackson's] death about things they may have seen or heard. [¶] If asked, witnesses could have supplied evidence as to the comings and goings of other potential suspects, of suspicious things they saw or heard on the date in question, reports of any fights, yelling or struggles coming from the room and ...