California Court of Appeals, Second District, Fourth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA093526, Tia Fisher, Judge.
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Neil Rosenbaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
In the underlying action, a jury found appellant Stafford Joel Spicer guilty of the 1985 murder of Joanna Jones. Appellant contends his prior conviction for receiving Jones’s stolen car mandated the dismissal of the underlying action under Penal Code section 654, and that evidence of a 1974 incident of sexual misconduct was improperly admitted under Evidence Code section 1108; in addition, he maintains that his conviction for murder must be reversed due to insufficiency of the evidence and the ineffective assistance of his defense counsel.
In the published portion of this decision, we examine appellant’s contentions under Penal Code section 654 and Evidence Code section 1108. Regarding the former, the focus of our discussion is on the “unavailable evidence” exception to the rule regarding multiple prosecutions in Penal Code section 654, as annunciated in People v. Davis (2005) 36 Cal.4th 510 [31 Cal.Rptr.3d 96, 115 P.3d 417] (Davis). We conclude that under the exception, in cases where the prosecution has probable cause to charge the defendant with murder and a related crime and proceeds only on the related crime, it is not thereafter barred from bringing the murder charge upon obtaining additional evidence if, at the time it declined to proceed, the prosecution lacked evidence supporting the objectively reasonable belief that it could secure a murder conviction on the evidence then available, despite the exercise of due
diligence in the investigation of the crimes. Regarding Evidence Code section 1108, we conclude that the admissibility of prior sexual misconduct under the statute does not hinge on whether there is sufficient independent evidence to prove that a sexual act occurred in the current case.
In the unpublished portion of this decision, we reject appellant’s remaining contentions, with the exception of his challenge to the jury’s special circumstance finding that he committed the murder during the commission, or attempted commission, of a kidnapping. Because that error was not prejudicial, we modify the judgment to strike the finding, and affirm the judgment, so modified.
RELEVANT PROCEDURAL BACKGROUND
In June 1985, an information was filed, charging appellant with receiving stolen property (Pen. Code, § 496), namely, Jones’s car. In February 1986, after pleading guilty to the charge, appellant was sentenced to a prison term of three years eight months.
On December 16, 2011, an information was filed, charging appellant with Jones’s murder. Accompanying the charge were allegations (§ 190.2, subd. (a)(17)) that the murder was committed while appellant was engaged in the commission, or attempted commission, of robbery (§§ 211, 212.5), kidnapping (§§ 207, 209, 209.5), and rape (§ 261). In addition, the information alleged that appellant had suffered a prior conviction for a serious felony (§ 667, subd. (a)(1)), and had been convicted of two prior felonies (§ 1203, subd. (e)(4)). Appellant pleaded not guilty and denied the special allegations.
Prior to trial, the court denied appellant’s motion to dismiss the action on the ground that it constituted a “multiple prosecution” under section 654. Later, during the trial, the court dismissed the prior conviction allegations at the prosecution’s request. After a jury found appellant guilty of first degree murder, and found all the murder-related special circumstance allegations to be true, the trial court sentenced appellant to a term of life imprisonment without the possibility of parole. This appeal followed.
A. Prosecution Evidence
1. Events Preceding Jones’s Murder
In 1974, appellant lived near Linda Tulach’s apartment in Long Beach. Tulach testified that on August 4, 1974, at approximately 4:00 a.m., she and
her two-year-old son were in her apartment, sleeping in the same bed. At the sound of breaking glass, she awoke to see appellant holding a knife. He moved quickly to her bed and said, “Don’t scream, bitch.” When she asked, “Do you want money?, ” he replied, “No, I want you.” While holding the knife, appellant touched Tulach’s breasts and thigh, and ran his hands under the bed’s mattress, saying that he was looking for weapons. After permitting Tulach to remove her son from the bedroom, appellant disabled her telephone and began running his hands along the legs of a pair of Tulach’s pants he found on her bed. Tulach saw that her front door was unlocked, grabbed her son, and fled to a neighboring apartment. Several days later, while shopping, Tulach saw appellant in a parking lot, flagged down a police officer, and pointed out appellant as the man who had broken into her apartment.
Debra Perry was appellant’s “common law... wife” from 1977 to 1985. According to Perry, appellant was known as “Plumber Joe, ” and he sold drugs obtained from Bill Brummet, who was a “major drug supplier” in Long Beach.
2. Jones’s Disappearance
In April 1985, Martine Carcamo was dating Joanna Jones and living in an apartment building on Ocean Boulevard in Long Beach, near the Pacific Holiday Towers apartment complex. Jones sometimes spent weekends with Carcamo in his apartment. On the afternoon of April 28, 1985, Jones parked her blue Camaro close to his apartment and the Pacific Holiday Towers. After spending the night in Carcamo’s apartment, Jones left for work the following morning, April 29, between 5:00 and 5:30. a.m.
Eugene Blackburn testified that in 1985, he worked as a security guard in the Pacific Holiday Towers. On April 29, 1985, his shift began at midnight and ended at 7:00 a.m. At 2:47 a.m., three people entered the building, one of whom signed the visitor sheet as “Joe Spicer.” According to Blackburn, between 5:00 and 5:30 a.m., the same person left the building “going like a bat out of hell, ” and ran toward Ocean Boulevard.
After Jones left Carcamo’s apartment, she failed to return his phone calls. He informed the police that she was missing. A few days later, while standing outside his apartment building, Carcamo saw Jones’s Camaro pass by. The car was driven by appellant, and contained three other occupants. When Carcamo followed in his own car, appellant performed a U-turn and stopped. Carcamo also halted his car and yelled that he knew who owned the Camaro. The three passengers fled the Camaro on foot, and appellant drove away. Carcamo then reported to the police that he had seen Jones’s car.
On May 2, 1985, Long Beach Police Officer Paul Chastain and his partner responded to a call regarding Jones’s potential kidnapping and stolen car. The officers located Jones’s unoccupied Camaro parked at a market. The three passengers who fled from Carcamo were identified as Karen Zirpel, Lorraine McCrimmon, and Gerald Kuhnke, who then used the name “John Rustin.” The officers went to a nearby residence, where they saw appellant and Kuhnke. Although Kuhnke was detained, appellant fled from the officers.
Perry testified that after 11:00 p.m. on April 28, 1985, appellant left her apartment with two friends, and that she did not see him again until approximately 9:00 a.m. the following morning. On April 29, between 9:00 and 10:00 a.m., she walked to a convenience store with appellant, who pointed out a blue Camaro. He did not explain how he had obtained it. At some point, she saw appellant wipe down the car’s interior. On May 2, Perry was arrested. Following her release, she had a phone conversation with appellant, who said that he was running from the police and that Brummet had “set him up.” They discussed the stolen Camaro and the related investigation into a potential murder.
On May 8, when arrested at Perry’s apartment, appellant said he had not killed the car’s owner. Following his arrest, appellant made additional voluntary statements to Officer Chastain, who accompanied him to the police station. Appellant said that on April 29, at approximately 9:30 a.m., a man named “Sean” offered the Camaro to him for the purpose of arranging its sale. Sean wanted $1, 500 for the car, of which appellant would get $300. Appellant took possession of the car, although he was aware that it had probably been stolen. Later, when a man followed appellant while he was driving the Camaro, he decided to abandon it. Appellant told Officer Chastain that he had been “set up” for the homicide by Brummet.
On May 8, Long Beach Police Department Detective William Maclyman interviewed appellant. Appellant told Maclyman that Sean had asked him to try to sell the Camaro for him.
3. Discovery of Jones’s Body
On June 8, 1985, several weeks after Jones’s disappearance, hikers in Azusa Canyon smelled a foul odor from a drainage tunnel under the roadway. Looking into the tunnel, they observed a decomposing body, later identified as Jones’s, and reported it. Los Angeles County Sheriff’s Department Sergeant Robert Perry, who responded to the discovery, found Jones’s unclothed body inside a culvert under a rural road, approximately 48 miles from
Carcamo’s apartment. Jones lay on her back with her legs spread apart, each touching a side of the culvert. Other than a pair of shoes near her feet, no items of her clothing were present.
Two days later, Dr. Lakshmanan Sathyavagiswaran performed an autopsy on Jones. Her body was decomposed, and showed maggot and animal activity. Dr. Sathyavagiswaran found an injury to her rib, as well as nine sharp force trauma injuries consistent with stab wounds to her neck, chest, and torso. Evidence of bleeding from the neck wounds supported the conclusion that she was alive when they occurred.
4. Investigation (1985 through 1987)
After appellant’s arrest, fingerprints were lifted from the Camaro’s exterior and its passenger area. Investigators also identified bloodstains on a mat and a cup holder found in the car’s trunk.
On October 3, 1985, Sergeant Perry interviewed appellant at his attorney’s office. Appellant stated that on the evening of April 28, 1985, he bought some methamphetamine and visited two friends, Gineen Bertram and Dave Metcalf, in Bertram’s apartment in the Pacific Holiday Towers. During the night, appellant briefly left the apartment to buy drugs, and returned. At 8:00 a.m the following day, when appellant was walking on a street near the apartment to buy a soda, he encountered Sean, who was driving the Camaro, and asked appellant to arrange for its sale. Sean initially requested $2, 500 for the car, but agreed to accept $500 or a quantity of methamphetamine. Appellant identified “Sean” as Rick Castle, whom appellant characterized as a close associate of ...