Superior
Court Orange County, No. 94CF0821 John J. Ryan Judge
Peter
Giannini, under appointment by the Supreme Court, for
Defendant and Appellant.
Bill
Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris,
Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Gary W. Schons, Assistant
Attorney General, Holly D. Wilkens and Daniel Rogers, Deputy
Attorneys General, for Plaintiff and Respondent.
Cuéllar, J.
An
Orange County jury found defendant William Clinton Clark
guilty of the first degree murders of Kathy Lee (count 1) and
Ardell Williams (count 7). (Pen. Code, §§ 187,
189.)[1] The jury found true the five
special-circumstance allegations charged, as follows: that
defendant committed the murder of Lee while engaged in the
commission of a burglary (§ 190.2, subd. (a)(17)(G)) and
while in the attempted commission of a robbery (§ 190.2,
subd. (a)(17)(A));[2] that the murder of Williams was the
murder of a witness for the purpose of preventing her from
testifying in a criminal proceeding (§ 190.2, subd.
(a)(10)) and a murder while lying in wait (§ 190.2,
subd. (a)(15)); and a multiple-murder special-circumstance
allegation (§ 190.2, subd. (a)(3)).[3] The jury hung on a
penalty verdict, but a new jury returned a verdict of death
at the penalty phase retrial. The trial court denied
defendant’s motions for a new trial (§ 1181) and
modification of the penalty (§ 190.4, subd. (e)), and it
sentenced him to death. This appeal is automatic. (Cal.
Const., art. VI, § 11; § 1239, subd. (b).)
We
vacate the burglary-murder and robbery-murder
special-circumstance findings, but otherwise affirm the
judgment.
Introduction
The
jury convicted defendant and sentenced him to death for two
murders. He was the shooter in neither of them. The first
murder was that of Kathy Lee, who was shot by Nokkuwa Ervin
on the evening of October 18, 1991, during an attempted
robbery of a CompUSA store in a Fountain Valley shopping
center.[4] The second murder was that of
defendant’s former associate Ardell Williams, who was
shot in Gardena during the early morning of March 13, 1994,
by either Antoinette Yancey, who was defendant’s
girlfriend at the time, or by someone acting at
Yancey’s direction.[5] The prosecution’s theory of
defendant’s accomplice liability for Lee’s murder
was that defendant organized, and was present at, the CompUSA
murder. The prosecution’s theory of defendant’s
accomplice liability for Williams’s murder was that
defendant conspired with Yancey to have Williams killed
because Williams had testified to a grand jury about
defendant’s involvement in the CompUSA murder, and she
was going to testify against defendant at his trial.
Defendant
denied involvement in either murder. As to the first murder,
the defense sought to challenge the credibility of the
prosecution witnesses, including Williams. Defendant also
presented as an alibi evidence that he was present at a
recording studio in Glendale during the time of the CompUSA
murder. As to the second murder, the defense acknowledged
defendant’s close personal relationship with Yancey,
but it contended there was no evidence he conspired with
Yancey to have Williams murdered.
I.
Facts
A.
Guilt Phase
1. The
Prosecution’s Case
a. The
CompUSA Murder
i.
Surveillance of the Store
The
prosecution introduced Williams’s Orange County grand
jury testimony to establish defendant’s preparations
for the attempted robbery at the CompUSA store.[6]
At the
end of August or in the early part of September 1991, Ardell
Williams accompanied defendant while he surveilled a CompUSA
computer store in the Fountain Valley Mall near its 10 p.m.
closing time.[7] From the vantage point of a Del Taco
restaurant parking lot –– which faced the CompUSA
store about 500 feet away –– defendant, his
brother, Eric Clark, [8] and his cousin, Damian Wilson,
scrutinized the closing operations of the computer store and
noted the amount of time it took the employees to leave.
During Williams’s conversations with defendant that
night, defendant implied several times that he was planning
some sort of crime involving the CompUSA store. After
defendant and his companions finished watching the CompUSA
store, they drove to a street near the mall where defendant
checked on a U-Haul truck that he had parked there.
ii.
The Night of the Crime
At
approximately 10 p.m. on October 18, 1991, after the CompUSA
store had closed for the evening, a man later identified as
Ervin approached the three remaining employees in the store
with a gun and eventually handcuffed them in the men’s
restroom. At about 10:30 p.m., Fountain Valley Police Officer
Raymond Rakitis was on car patrol near the CompUSA store when
he heard a gunshot. From 15 to 20 yards away, he saw a silver
BMW back out of the parking lot and Ervin run from an open
loading door in the back of the CompUSA store toward the BMW.
When Ervin reached the BMW, he tried to enter the car through
the driver’s window and then tried to open the
passenger side door. But the BMW did not wait for him, and it
drove off, leaving him in the parking lot. Officer Rakitis
exited his police car and subdued Ervin. Officer Rakitis then
noticed a dead woman lying on her back with blood pooling
under her head near the CompUSA loading doors. The police
later determined that the woman, Kathy Lee, had come to pick
up her son, who was an employee at the store. The autopsy
showed that she died as a result of a single gunshot wound to
the head, fired while the gun directly touched the skin
behind her left ear.
Police
recovered a blue-steel.38-caliber revolver with a two-inch
barrel, from the left inside pocket of Ervin’s jacket.
The cylinder of the revolver contained one expended.38
caliber cartridge casing and some human tissue. Ballistic
testing matched the bullet that killed Lee to the revolver
found on Ervin. At trial, two CompUSA employees identified
Ervin as the man who held them at gunpoint.
iii.
Matthew Weaver’s Testimony
Matthew
Weaver was present in the CompUSA parking lot that night and
placed defendant at the scene of the crime. Weaver testified
under a grant of transactional immunity. Weaver knew Eric and
Wilson, who were fellow members of the Moorpark College
basketball team. They had offered to pay Weaver $100 to help
them move computers to a warehouse from a store they said
belonged to defendant. On the night of the crime, Eric drove
Weaver to the mall parking lot where they waited for the
CompUSA store to close. While they were waiting, Wilson
introduced Weaver to his brother “Bill, ” who had
driven up in a BMW. Weaver identified defendant in court as
the man to whom he had been introduced.
Defendant
eventually told Weaver that the group could start moving the
computers, and he drove Weaver over to the store in the
BMW.[9] As they approached the store, Weaver
saw a woman lying on the ground next to a car. Suddenly
Weaver saw an African-American man, later identified as
Ervin, run up and unsuccessfully attempt to dive through the
driver’s side window of the BMW. Weaver ducked down
toward the dashboard and noticed that two police cars with
flashing lights were approaching the BMW. Defendant made a
U-turn and drove off, leaving Ervin in the parking lot. After
driving some distance away from the mall, defendant stopped
at the side of the road and told Weaver and the other
passenger to get out.
iv.
Investigation of the U-Haul Truck
On
October 22, 1991, four days after the CompUSA murder, police
investigators found a U-Haul truck that had been parked near
the store for several days. They determined that Jeanette
Moore had rented the truck on October 3, 1991, using a
fraudulent driver’s license with her picture but with
the name “Dena Carey.”[10] Moore testified under
a grant of transactional immunity. She testified that, in
June or July of 1991, defendant obtained the fraudulent
driver’s license for her.[11] Defendant and Moore
had gone to the DMV where defendant knew the clerk who
processed the license. Moore subsequently rented the U-Haul
truck at defendant’s request using the
license.[12] Eric drove Moore to the U-Haul lot
and drove the truck away after Moore filled out the forms and
obtained the key. Defendant rewarded Moore with $100 the next
day. A U-Haul clerk testified that, on October 9, 1991, which
was six days after Moore rented the truck, an
African-American male came to the U-Haul lot in Glendale and
extended the contract.[13]
Moore
moved to Yuma, Arizona in 1992 or 1993 and did not see
defendant again. But while living in Arizona in 1993, she
received a three-way phone call from Gary Jackson (an
ex-boyfriend through whom she had met defendant) and a woman
identifying herself as “Nina, ” who claimed to be
defendant’s wife.[14] Nina told Moore to expect some
money via Western Union. In the winter of 1993, Moore
received $100.
In June
1994, while Moore was in custody at the Orange County Jail
pursuant to a commitment under section 1332 to ensure her
availability as a witness at defendant’s preliminary
hearing, she received an anonymous letter urging her not to
testify. The letter included a photocopy of a newspaper
article describing a witness who was released from jail after
refusing to testify at a trial.[15]
v.
Sale of Defendant’s BMW After the CompUSA Murder
Defendant
bought a BMW model 735i on July 31, 1991. On October 24,
1991, six days after the CompUSA murder, he arranged to sell
it through the dealer from whom he had bought it. The dealer
suggested that defendant would get more money selling it
retail rather than on auction wholesale, but defendant told
him that he just needed to get rid of it and wanted to sell
it wholesale.
b.
The Murder of Williams
i.
Arrest of Defendant and Williams in Las Vegas and Her
Cooperation with the Authorities
In
September 1991, sometime after Ardell Williams had
accompanied defendant during his surveillance of the CompUSA
store, she traveled with him to Las Vegas. On the evening of
September 22, the police arrested Williams and defendant for
passing stolen traveler’s checks at the Mirage Hotel.
Defendant posted bail and was released the next day, but
Williams remained in jail. While in custody, Williams helped
the local police and the FBI in their investigation of the
Mirage Hotel incident and other related bad check cases.
Williams
subsequently testified to the Orange County grand jury that
she had a conversation with Eric approximately two weeks
after her arrest in Las Vegas, when she had returned to Los
Angeles. Eric asked her whether she had been talking to
anyone about “this Las Vegas thing” because
someone was “pointing the finger” at defendant,
saying that he was “the top dog in this case.”
Williams denied talking to the authorities. She asked Eric,
“[W]hatever happened to the computer store?” Eric
answered that “it went down bad.” He recounted
that his group of burglars went into the store and handcuffed
a cashier and a night manager to a hand rail in the bathroom.
But the mother of one of the employees came into the store
looking for her son and surprised one of the burglars, who
shot her. Eric told Williams not to mention what he said to
anyone.[16]
Seven
to ten days after this conversation, defendant called
Williams, telling her that he was going to find her a lawyer
in Las Vegas to take care of the bad check charges pending
against her. Williams asked defendant about his BMW, and
defendant stated that he had sold it “because you never
know who could have seen the two of us sitting eating nachos
that one night, ” and “he didn’t want
anybody to suspect anything.”
After
her conversation with Eric, Williams decided to tell the
authorities about the CompUSA murder because her own sister
had been the victim of an unsolved murder many years before.
On December 31, 1991, she contacted FBI Special Agent Todd
Holliday, whom she had met following the bad check incident
in Las Vegas. Williams told Holliday about the surveillance
of CompUSA and about her later conversations with defendant.
Agent Holliday contacted the Fountain Valley police and the
Orange County District Attorney’s investigators to tell
them that Williams claimed to have information about the
CompUSA murder. Williams agreed to talk on the phone with
Frank Grasso, an inspector with the Orange County District
Attorney’s Office, on April 1, 1992. In two interviews,
which were tape-recorded and played to the jury, Williams
implicated defendant in the CompUSA murder.
ii.
Tape Recordings of Defendant’s Phone Calls
In
August 1992, Inspector Grasso provided Williams’s
sister, Elizabeth Fontenot, with a tape recorder so that
Fontenot could record phone calls she received from
defendant. The tape of defendant’s conversations with
Fontenot was played in court to the jurors. During these
conversations, defendant expressed concern that Williams
might talk to authorities and try to link him to a murder in
Orange County. Defendant told Fontenot that the authorities
knew things that only Williams knew. He said he was
“shocked” that Williams “rolled over so
quickly.” He told Fontenot that if Williams were to
testify against him, it would be “serious” and
would “wipe [him] out.” He stated that the best
answer that Williams could tell the authorities about him was
“I don’t know.” He explained,
“[Y]ou’re her big sister, she don’t know
nothing about me. Whatever she’s told them,
that’s it. You follow me?... She can ‘I
don’t know’ ’em to death.”
“Anything that she might of [sic] already said, she
could come to court and get complete amnesia.”
iii.
Defendant’s Admissions to a Fellow Inmate
While
defendant awaited trial for the CompUSA murder, he was
incarcerated in the Orange County Jail. There, he met fellow
inmate Alonzo Garrett. Unbeknownst to defendant, Garrett was
acquainted with Williams because one of Garrett’s
friends was married to Williams’s sister. At one point,
defendant showed Garrett what appeared to be a trial
transcript and referred to Williams.[17] Garrett stated in
a phone call to an acquaintance, which was recorded and
played to the jury, that defendant had said, “
‘Hey, this is the woman right here that could put me
away.’ ”[18] Concerned that Williams was involved
in a dangerous situation because she was “snitching,
” Garrett phoned Williams, who admitted that she was
the key witness in defendant’s case, but assured him
that there was nothing to worry about.
Before
trial, prison authorities seized from defendant’s cell
an apparently undelivered letter to Garrett threatening him
for talking to the police.[19]
iv.
How Defendant Received the Grand Jury Transcripts
The
prosecution’s theory was that the transcripts that
defendant had shown to Garrett concerning Williams were
transcripts of her grand jury testimony. The prosecution had
provided these transcripts through discovery to
defendant’s attorney, who gave them to defendant.
Criminal defense attorney John D. Barnett testified as an
expert witness that a competent defense attorney would have
given a defendant information about Williams’s
interviews with the police and her grand jury testimony -
information that would had been produced in discovery by the
prosecution. Barnett testified that Williams’s police
interviews and grand jury testimony would be, absent certain
exceptions, inadmissible at trial if she was unavailable as a
witness because she had not been subject to cross-examination
at those proceedings.
v.
The Flower Delivery at the Home of Williams
On
February 10, 1994, an African-American woman who said her
name was “Carolyn” and claimed to be from a local
flower delivery shop, delivered flowers bearing a card signed
“Secret Admirer” to Williams at the Gardena home
where she lived with her mother, Angelita Williams, and her
sister, Nena Williams. Nena thought the delivery girl was
suspiciously trying to loiter around the house after making
the delivery, including spending a long time in the restroom.
In court, Nena identified the woman who had called herself
“Carolyn” as Yancey. During defendant’s
preliminary hearing, the parties stipulated that Angelita
also identified Yancey as “Carolyn.”
On
March 9, 1994, Williams phoned Inspector Grasso and told him
about “Carolyn” and the unusual flower delivery.
Grasso assembled a series of photos of women associated with
defendant, including Yancey, and showed them to Williams,
Nena, and Angelita. All three identified Yancey as the person
who delivered the flowers. The parties stipulated at trial
that one of Yancey’s fingerprints was found on the box
in which the flowers were delivered.
vi.
Phone Calls to the Home of Williams and a Purported Job
Interview
After
the flower delivery, someone calling herself “Janet
Jackson” telephoned Williams. This person had
previously spoken by phone several times to Angelita.
“Janet Jackson” asked Williams to come for a job
interview at a company named Continental Receiving on Sunday,
March 13, 1994 at 6:30 a.m.[20]
vii.
The Morning of the Murder and the Crime Scene
Williams
went to the purported job interview sometime after 6:00 a.m.
on the morning of March 13, 1994. At 8:00 a.m., a
neighborhood resident discovered Williams’s body near
Williams’s car in the driveway of Continental Receiving
in Gardena, which was about a two-minute drive from her home.
Williams had a gunshot wound behind her left ear. She was
clothed with no evidence of sexual assault, and had $114 in
cash on her person. A.25-caliber bullet casing and two job
application forms were found near her body - one on the trunk
of the car, and the other one on the ground. The application
form on the ground was partially completed. A photograph of
patterns in dust on the trunk of the car suggested that an
arm had been resting on the trunk lid near where the
partially completed form had been.
Yancey
visited defendant at the Orange County Jail the same morning.
Her visit began at 8:45 a.m. and ended at 9:35 a.m. According
to Inspector Grasso, it would take 37 minutes to drive from
Continental Receiving to the Orange County jail, driving on
average at the speed limit of 55 miles per
hour.[21]
viii.
Investigation of Williams’s Murder
Five
days after Williams’s murder, police conducted a voice
lineup, where they played tapes of four voices to Angelita
and Nena. Both of them identified Yancey’s voice as
that of the woman who had called herself “Janet
Jackson” in her telephone calls.
On
March 17, 1994, the police searched Yancey’s apartment.
They found: (1) a California driver license with
Yancey’s picture on it and the name “Keia
Thomas”; (2) a resume with Thomas’s name; (3) a
Western Union receipt for $100 sent to “Jeanette
Alexander” from “Nina Howard” on December
27, 1993;[22] (4) an income tax return and
receipts in defendant’s name; (5) a phone bill receipt
in Eric’s name; and (6) numerous love letters from
defendant to Yancey where defendant expressed explicit sexual
fantasies. The trial court provided edited versions of the
letters to the jury.[23]
Yancey’s
phone records for the period of January through March of 1994
listed numerous calls to the home of Williams; to the office
of defendant’s attorney, Jack Earley; to the office of
defense investigator, Alan Clow; and to a pay phone in Orange
County Jail accessible to defendant.
2.
Defense Case
a.
Williams’s Credibility
To
challenge Williams’s credibility, the defense called
Satanand Sharma, a neuropsychologist who had seen Williams on
four occasions through court-ordered counseling. In his notes
from one of the sessions, Dr. Sharma wrote: “She
[Williams] feels that Bill [defendant] was involved in that
case [the computer store attempted robbery and murder]
because she was pushed [sic - parked] in front of a
computer store and had conversations with Bill regarding the
bust at the store.” Dr. Sharma’s recollection was
that Williams said she was present at the attempted robbery.
A loss
prevention officer at the Disney Store in Torrance where
Williams had worked described how she was fired in February
1994. The Disney Store fired Williams after the officer
investigated her for employee theft. Williams admitted to the
officer that she had put extra merchandise into her
friends’ bags when they made purchases.
b.
Alibi Evidence
As an
alibi, defendant presented evidence of his whereabouts during
the CompUSA murder on the night of October 18, 1991 through
the testimony of Geoffrey Gilstrap, a musician in a band
called Full Swing that defendant was managing at the time.
Defendant had booked time for the band at a Glendale
recording studio and, on the evening of a Friday at the end
of October (either Friday, Oct. 18, or Friday, Oct. 25),
Gilstrap was at the studio at about 8:30 p.m. for a scheduled
recording session. Defendant was there, but no recording took
place because the recording engineer did not show up, owing
to a pay dispute concerning the previous session. Gilstrap
left the studio after about 15 to 20 minutes, which was
between 8:30 and 9:00 p.m. The manager of the recording
studio also testified and brought the studio’s schedule
book, which showed that defendant had reserved time there for
October 12, 13, and 18, 1991. She did not remember seeing
defendant in the studio on October 18, the night of the
CompUSA murder.
B.
Penalty Phase Retrial
1.
Prosecution Evidence
Defendant’s
first penalty trial resulted in a hung jury.[24] At the
penalty phase retrial, the prosecution re-presented the guilt
phase evidence from both the CompUSA murder and the murder of
Williams. The prosecutor did not present any other evidence
in aggravation.
2.
Defense Evidence
For his
case in mitigation at the penalty phase retrial, defendant
mounted a lingering doubt defense for both murders. As in the
guilt phase, he again attacked the credibility of the main
prosecution witnesses and presented alibi evidence for his
whereabouts on the night of the CompUSA felony murder.
Defendant also presented evidence in mitigation based on his
family background, his good character, and his ability to be
a positive influence on other inmates. Finally, he presented
evidence that he had brain damage and psychological
impairments because of head injuries he suffered during
childhood and young adulthood.
a.
Credibility of Moore
The
defense presented the testimony of Gary Jackson,
Moore’s former boyfriend. Moore, as described above,
had linked defendant to the CompUSA murder by testifying that
defendant had obtained a fraudulent driver license for her
and then asked her to use it to rent the U-Haul truck that
the police later found parked near the crime scene.
Jackson
portrayed Moore in a negative light, describing her as a
fellow drug user and thief whom he had dated for about six
months between 1990 and 1991. In May 1991, Jackson and Moore
found a wallet that contained department store credit card
receipts in the name of Dena Carey. Moore devised a plan to
obtain a driver license with Carey’s name so that she
could use the department store receipt numbers to buy
merchandise on those accounts. But she needed to have an
address for the driver license, and Jackson refused to let
her use that of his father. In May 1991, Moore met defendant
through Jackson. Moore asked defendant if she could use his
address for her welfare checks because she did not have a
stable address.
Jackson
further testified that a man called “Ricky, ” not
defendant, asked Moore to rent the U-Haul truck that was
found parked near the CompUSA robbery scene. Jackson
described Ricky as one of his “dope dealers” who
was a five foot, 10 inch tall light-complected
African-American man with a Jheri curl.[25] Ricky drove a
grey BMW.
b.
Family Background
Many of
defendant’s family - including defendant’s
father, mother, aunt, first wife, and two cousins - along
with several family friends, testified about
defendant’s life. Defendant’s mother and father
married at a young age and had a tumultuous 10-year marriage,
during which defendant and his brother Jonathan were born.
Defendant’s father remarried and had two more children:
defendant’s half brothers Eric and Jason.
Defendant
was described as having a high IQ but failing to perform
academically the way he should have; he had a C average in
high school. With a combination of high Scholastic Aptitude
Test scores and his basketball ability he was admitted to
UCLA. But he did not complete a degree there, nor did he
become a starting player on the basketball team. He
eventually went to Fresno, where his father was living, and
attended Fresno State University, where he continued playing
basketball. He left Fresno, returned to Los Angeles, and
moved into an apartment building owned by his mother. He was
married for five years, and had two children. During this
time, defendant and his brother Jonathan started a business
venture to design and license animated characters for the
1984 Olympic games in Los Angeles. Defendant lost
approximately $750, 000 of investment money provided by his
mother and aunt on this unsuccessful business.
Many of
defendant’s family members described him as lively and
positive in attitude as a young man but, as his first wife
testified, he became depressed and distant after the business
failure. She eventually filed for divorce. In 1985, soon
after the divorce, defendant’s young son from his first
marriage died. The deaths of defendant’s grandmother
and brother-in-law followed in close succession.
Defendant’s first wife testified that defendant was
deeply affected by all these deaths in the family. By 1987 or
1988, defendant married his second wife, with whom he had a
son and daughter.
Family
members described several serious accidents that defendant
suffered in his life. When he was six or seven, he was
accidentally hit in the head with a champagne bottle by his
young cousin at a wedding, and, as a result, suffered
convulsions. While playing football at Fresno State, he
tripped on a lawn sprinkler and broke his jaw and leg. Just
before his first marriage, he was in a car accident and
remained in a body cast for six months.
c.
Inmate Testimony
Three
inmates testified about defendant’s positive influence
on them while they were incarcerated in the Orange County
Jail. Two of these inmates also testified that it was common
for inmates to write sexually explicit letters to women
outside of jail.[26]
d.
Asserted Brain Damage
Through
the testimony of Dr. Joseph Wu, the director of the
University of California, Irvine Brain Imaging Center,
defendant presented evidence that he had brain damage and
psychological impairments. Based on a positron emission
tomography (PET) scan of defendant’s brain done on June
11, 1996, Wu stated that defendant had abnormalities in his
frontal lobes that were consistent with a closed head injury.
Wu gave his opinion that the abnormalities shown in the PET
scan indicated that defendant had “suffered some kind
of serious blow to the head which caused some kind of severe
malfunction of his frontal lobes.” What the PET scan
showed was consistent with the fact that, when defendant was
six years old, he had been struck on the head with a
champagne bottle. Wu further stated that people with damage
to their frontal lobes, “in many cases, ” exhibit
personality changes in which they “seem to lack the
ability to be able to fully understand or appreciate the
significance of their actions” and have “impaired
social judgments.”
Psychiatrist
George Woods testified to his clinical assessment that
defendant suffered from a mild case of bipolar affective
disorder. Woods explained that people suffering from this
mood disorder experience periods of elevated mood, are very
easily distracted, and lack good insight into their actions.
The diagnosis of this mood disorder was consistent with the
frontal lobe damage shown in defendant’s PET scans.
II.
Pretrial Issues
A.
Order Denying Defendant Telephone Access from Jail
On
March 23, 1994, at the initial arraignment of defendant and
his then-codefendant Yancey for the murder of Williams, the
trial court granted, over defense objection, the
prosecutor’s request for an order restricting defendant
from making any telephone calls from jail, including any
calls to defense counsel. About a year later, defense counsel
successfully moved the court to modify the restriction to
allow defendant to call his defense counsel or defense
investigator at specified hours. Defendant contends the March
23, 1994 restriction prevented him from communicating with
his counsel, investigator, and potential witnesses in the
case, which violated his federal constitutional rights and
his rights under state law. As discussed below, we conclude:
(1) the court did not err in granting the prosecutor’s
request for the initial March 23, 1994 restriction on
defendant’s telephone calls; (2) defendant forfeited
his claim concerning the continuing application of the
restriction order when defense counsel expressly declined to
argue against it in the April 15, 1994 hearing and asked to
take his motion challenging the order “off
calendar”; and (3) even if his claim is not forfeited,
defendant has failed to show that his defense was prejudiced
by the phone call restriction.
1.
Background
Attorney
Jack Earley began representing defendant in September 1992
for the charges arising from the CompUSA
murder.[27] Earley was defendant’s
attorney when Williams was murdered on March 13, 1994. Four
days later, on March 17, the police searched Yancey’s
apartment. Among other evidence connecting Yancey and
defendant was Yancey’s personal phonebook, which
contained the name and phone numbers of Earley and his
investigator, Alan Clow. Phone records showed several
telephone calls from Yancey’s apartment to
Earley’s office in the period before Williams’s
murder, as well as several phone calls from Yancey’s
apartment to Clow’s office both before and after
Williams’s murder. On March 23, 1994, 10 days after
Williams was murdered, the prosecutor charged defendant and
Yancey with her murder. The prosecutor initially refused to
give discovery information to Earley because the prosecutor
was fearful for the safety of the other witnesses in the
case.[28]
On
March 23, 1994, at the initial arraignment hearing for
defendant and his then-codefendant Yancey, the prosecutor
stated that new information had developed, and that Earley
and his investigator might be potential witnesses in the
case.[29] The prosecutor asked that Earley
come to the prosecutor’s office to discuss the
situation. The prosecutor also requested “a blanket
order” to deny defendant any telephone access
(including to Earley) for at least 48 hours until the
prosecutor had a chance to discuss the situation with Earley
and devise a course of action. The prosecutor, however,
agreed to allow Yancey telephone contact with her attorney if
a deputy sheriff dialed the number. The trial court granted
the prosecutor’s request for the order over defense
counsel’s objection and continued the arraignment to
two days later, Friday, March 25, 1994, when the court would
review the restrictions on phone calls.
At the
March 25 hearing, Earley raised the issue of the telephone
restrictions, which Earley thought would expire at this
point. The prosecutor stated his position that the
court’s order should remain in effect. The parties
agreed to a hearing on the issue, with the restrictions
remaining in the meantime. The hearing was held on April 15.
At the
April 15 hearing, Earley stated, “[T]he people at this
point are alleging that my client made various phone calls
from the jail to make some arrangements. I’m not asking
that we change the order at this point today.” Earley
said he could work out an agreeable order with the prosecutor
concerning defendant’s telephone access and stated,
“I don’t mind taking it off calendar to deal with
it at the preliminary hearing, if need be.”
Yancey’s defense counsel, however, argued that the
trial court should modify its order to allow Yancey to
telephone people other than her attorney. After hearing
argument from Yancey’s counsel and the prosecution, the
court ruled that it was retaining the existing restrictions
on Yancey’s telephone access as stated in the March 23,
1994 order.
Earley
did not again ask the court to modify the restrictions on
defendant’s telephone access until about a year later,
on March 10, 1995, when he made a motion, unopposed by the
prosecutor, to allow defendant to have contact with defense
counsel at specified times if the number was dialed by a
deputy sheriff.
2.
Analysis
Citing
Small v. Superior Court (2000) 79 Cal.App.4th 1000,
1010, petitioner contends that former section 2600, the
statute defining the civil rights of prisoners, is the
starting point for matters involving security measures
affecting prisoner rights.[30] But, unlike
Small, petitioner’s claim does not involve a
challenge to a security measure promulgated by prison
authorities. Rather, it involves a restriction imposed by the
trial court at the urging of the prosecutor due to concerns
that defendant would use telephone access to threaten or
order the execution of witnesses in the case. In the absence
of authority applying former section 2600 to a court-ordered
limitation on the telephone access of a pretrial detainee, we
decline to apply it here.
Yet
defendant may challenge the telephonic restriction based on
his right to access to counsel under the state and federal
Constitutions. Restrictions on the ability of a prisoner,
including a pretrial detainee, to use the telephone to
consult with counsel implicate the right to assistance of
counsel in the prisoner’s defense. (See In re
Grimes (1989) 208 Cal.App.3d 1175, 1182.) Nevertheless,
“[n]ot every restriction on counsel’s time or
opportunity... to consult with his client or otherwise to
prepare for trial violates a defendant’s Sixth
Amendment right to counsel.” (Morris v. Slappy
(1983) 461 U.S. 1, 11.)
We
recently rejected a claim with similar facts. A defendant who
was a pretrial detainee in jail faced restrictions on
telephone contact with her attorney based on her misuse of
that privilege to attempt to solicit the murder of a witness.
(People v. Rodriguez (2014) 58 Cal.4th 587, 621.) As
we noted, “[j]ail authorities and the court did limit
defendant’s telephone privileges, but properly so given
her criminal behavior in jail that abused those
privileges.” (Ibid.)
Given
the grave and highly unusual circumstances under which the
prosecutor made the initial request to restrict
defendant’s phone access, we find no error in the trial
court’s ordering a complete restriction of
defendant’s telephone access. Initial evidence
indicated that defendant had used the jail telephones to
arrange the murder of a prosecution witness, and the
prosecutor subsequently discovered evidence that
defendant’s attorney or his investigator had been in
communication with the individual suspected of carrying out
that murder.[31] Under these circumstances, a blanket
restriction of defendant’s phone access was justified
for at least the limited period between the March 23, 1994
order and the April 15, 1994 hearing at which the court took
up its continuing status. At that hearing, the court asked
defense counsel to address the issue of whether the
restriction should be modified after the limited period, and
defense counsel asked that the court take the issue off
calendar in favor of defense counsel’s working out an
agreement with the prosecutor. Defendant therefore forfeited
the issue of the restriction on defendant’s telephone
access from the period of April 15, 1994, until March 10,
1995, when defense counsel again raised the issue and sought
modification of the order.
Finally,
even if defendant’s claim were not forfeited for that
period, he has failed to show that his defense was negatively
affected by this period of telephonic restriction such that
we could conclude he had been denied his right to the
effective assistance of counsel. Defendant acknowledges that
he was not denied personal visits from trial counsel. As
reflected in the record, defendant’s trial counsel
actively litigated the case during this period at the
preliminary hearing and through various pretrial motions and
hearings. Defendant generally contends that his
“input” was crucial to the defense’s
investigations of his alibi and other aspects of the case,
including his life history in preparation for a possible
penalty phase. But he fails to show that he was unable to
provide this input during personal visits from trial counsel,
and fails to indicate any area of the defense’s
investigation of the case that was inadequate because of his
lack of telephone communication with his attorney during the
period in question.
B.
Continuance of the Preliminary Hearing
Defendant
contends that his right to a speedy preliminary hearing was
violated because the trial court continued the date of the
preliminary hearing over defendant’s objections. As
discussed below, the court did not violate defendant’s
statutory rights concerning his preliminary hearing. Even if
it had, defendant fails to show any prejudice.
1.
Background
Defendant
entered a not guilty plea to the amended complaint on April
15, 1994, and requested that his preliminary hearing be set
for April 28. On April 28, on the motion of codefendant
Yancey, and over the objection of defendant, the trial court
ordered the continuance of both Yancey’s and
defendant’s preliminary hearings to June 30, 1994 for
good cause under section 1050.1. On June 29, 1994, the
prosecutor filed the second amended complaint, to which
defendant also pleaded not guilty. Yancey’s counsel
also requested another continuance based on the need to
review additional discovery material that the prosecutor had
disclosed in connection with the second amended complaint.
Again, over defendant’s objection, the court found good
cause for the continuance and continued the matter for both
codefendants to July 13. On July 13, both defense counsel
agreed to a continuance to July 18, when the preliminary
hearing commenced.
2.
Analysis
Defendant
now contends that the trial court’s granting of the
first continuance on April 28, 1994 violated his statutory
right under section 859b. Section 859b provides that a
criminal defendant has a right to a preliminary hearing
within 10 court days of the arraignment or plea, unless the
parties waive this right or the court finds good cause to
continue the preliminary hearing under section 1050.
(Landrum v. Superior Court (1981) 30 Cal.3d 1, 5.)
Under section 1050, a “trial court has broad discretion
to determine whether good cause exists, ” and we review
its decision on the motion for abuse of discretion.
(People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
Section 1050.1 provides that, “[i]n any case in which
two or more defendants are jointly charged in the same
complaint” and the magistrate finds good cause to
continue the preliminary hearing regarding one defendant, the
continuance constitutes “good cause to continue the
remaining defendants’ cases so as to maintain
joinder.” (§ 1050.1; Tapia v. Superior
Court (1991) 53 Cal.3d 282, 299.) At the April 28
hearing, the court found good cause to continue the
preliminary hearing for Yancey because her counsel requested
additional time to review the large amount of discovery
recently disclosed by the prosecutor. This, in turn,
established good cause to continue defendant’s
preliminary hearing for the purpose of maintaining joinder.
We therefore conclude that the court did not abuse its
discretion.
In his
reply brief, defendant raises an additional argument. He
notes that section 859b also provides that the
“magistrate shall dismiss the complaint if the
preliminary examination is set or continued more than 60 days
from the date of the arraignment [or] plea..., unless the
defendant personally waives his or her right to a preliminary
examination within the 60 days.” (§ 859b, subd.
(b).) Defendant contends that section 859b was violated
because he entered a not guilty plea on April 15, 1994, and
the preliminary hearing started 94 days later, on July 18,
1994. But he fails to address whether his not guilty plea to
the second amended complaint on June 29, 1994 reset the
60-day period under section 859b. If so, defendant’s
July 18, 1994 preliminary hearing, which commenced 19 days
later, was timely under the 60-day rule. Nonetheless, we need
not resolve this apparently still-undecided issue of
California law. (See Ramos v. Superior Court (2007)
146 Cal.App.4th 719, 724, fn. 3 (Ramos) [deferring
the question of whether an arraignment on an amended felony
complaint starts a new 60-day period under section 859b].)
This new argument is forfeited both because defendant failed
to raise it in the opening brief (People v. Tully
(2012) 54 Cal.4th 952, 1075) and because he failed to object
below. Moreover, even if he had preserved the claim,
defendant shows no prejudice from the delay. (People v.
Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530.)
Defendant
contends, citing Ramos, supra, 146
Cal.App.4th at page 737, that violation of the 60-day rule
does not require a showing of prejudice. To the extent the
Ramos court correctly concluded a defendant need not
show prejudice, that case involved circumstances where the
defendant objected to the delay and sought a pretrial writ to
dismiss the information. Here, defendant did not object;
moreover, he raises the issue for the first time on appeal.
As we stated in People v. Pompa-Ortiz,
supra, 27 Cal.3d at page 529, “[t]he presence
of a jurisdictional defect which would entitle a defendant to
a writ of prohibition prior to trial does not necessarily
deprive a trial court of the legal power to try the case if
prohibition is not sought.” We further stated that
non-jurisdictional irregularities in preliminary examination
procedures do not require reversal unless the defendant
establishes that he or she was deprived of a fair trial or
otherwise suffered prejudice as a result. (Ibid.) A
denial of a defendant’s right to trial within a
prescribed statutory time period falls within this class of
irregularities that are not jurisdictional in the fundamental
sense and which, therefore, require a showing of prejudice.
(Ibid.) The same analysis applies to a violation of
the 60-day rule in section 859b.
In the
alternative, defendant contends that, because his trial was
severed from that of codefendant Yancey after the preliminary
hearing, and because the strategy and tactics in preparing
for a joint trial are different than that of preparing for a
single trial, he ended up with less time to prepare for trial
as a single defendant. Defendant bases this contention on the
assumption that the severance with Yancey would have occurred
earlier if the preliminary hearing had occurred earlier. Even
assuming for the sake of argument that this is so, defendant
points to no specific issue at his trial that he would have
presented differently and thus fails to make a showing of
prejudice.
C.
Asserted Violations of Venue and Vicinage Rights
Defendant
contends that his venue and vicinage rights under the United
States Constitution, the California Constitution, and
California statutes were violated because he was tried in
Orange County for the Williams murder, which took place in
Los Angeles County. Defendant raised a vicinage claim as one
of several claims in an unsuccessful motion to dismiss the
indictment under section 995. He raised the vicinage claim
again during pretrial motions, and the trial court rejected
it. As we conclude below, the venue of defendant’s
trial was proper under statutory law and did not violate
defendant’s vicinage rights under the federal and state
Constitutions.
Venue
and vicinage are distinct. Venue concerns the location where
the trial is held; vicinage refers to an area from which the
jury pool is drawn. (Price v. Superior Court (2001)
25 Cal.4th 1046, 1054.) Defendant’s contentions
implicate both venue and vicinage because he contends that
the venue of his trial, Orange County, was statutorily
improper and that the racial composition of the jury pool of
Orange County violated his vicinage rights because there were
fewer jurors of defendant’s race (African-American) in
Orange County than in Los Angeles County (where defendant
contends venue was proper).
Under
section 790, the proper venue for a murder trial lies in the
county where the fatal injury was inflicted, where the victim
died, or where the victim’s body was discovered. But
under section 781, venue is also proper in the county where
“the defendant made preparations for the crime.”
(People v. Price (1991) 1 Cal.4th 324, 385.)
“The long-standing former rule was that venue presented
a question of fact and was thus for the jury to
decide.” (4 Witkin & Epstein, Cal. Criminal Law
(4th ed. 2012) Jurisdiction and Venue, § 65, p. 179
[citing cases].) Ten years after the completion of
defendant’s trial, we rejected that rule in favor of
the new rule that venue is a question of law to be determined
by the trial court. (People v. Posey (2004) 32
Cal.4th 193, 215 (Posey).) Following People v.
Simon (2001) 25 Cal.4th 1082, 1086-1087
(Simon), Posey, at page 200, set forth a
prospective rule that a defendant must raise a claim of
improper venue to the court prior to the commencement of
trial. Since defendant’s case was not final at the time
of the new rules set forth in Simon and
Posey, these new rules do not apply to him.
Defendant
could have proceeded under the authority at that time and
submitted the issue of venue to the jury. Instead he elected
to challenge venue in front of the trial court before the
commencement of trial (a procedure that would become the
exclusive method for deciding the issue after
Posey.) The burden of proof for proper venue remains
unchanged - it rests with the prosecutor and must be proved
by a preponderance of the evidence. (4 Witkin & Epstein,
Cal. Criminal Law, supra, Jurisdiction and Venue,
§§ 66-67, pp. 181-182 [citing cases].) Either
direct or circumstantial evidence may suffice. (4 Witkin
& Epstein, § 67, p. 181.) Whether we review the
sufficiency of the evidence in light of the court’s
decision or in light of the possible decision of a
hypothetical jury to whom defendant could have submitted the
issue, the result is therefore the same. The evidence
presented by the prosecutor was sufficient to prove, by a
preponderance of the evidence, that Orange County was an
appropriate place for the trial under section 781.
(Posey, supra, 32 Cal.4th at pp. 220-221.)
The
evidence establishes numerous visits and phone calls between
defendant and Yancey while defendant - in the months before
Williams’s murder - was incarcerated in the Orange
County Jail. A reasonable conclusion from this evidence is
that it was during this period that the two planned for
Yancey to lure Williams to her death. Defendant objects that
the evidence of Yancey’s visits and phone calls was not
sufficient to support the conclusion that defendant and
Yancey conspired to kill Williams because this evidence is
circumstantial - not direct - evidence of defendant’s
guilt. Defendant protests that there was no direct proof of
what was discussed during those visits or phone calls. But
the evidence supporting venue can be either direct or
circumstantial. In combination with the totality of
incriminating evidence in the case, the visits and phone
calls were compelling circumstantial evidence that it was
within Orange County that defendant conspired with Yancey to
have Williams murdered. Venue in Orange County was therefore
proper for the Williams murder under section 781 because it
was the county in which defendant made preparations for the
crime.
Defendant’s
vicinage claim also falters. His rights under the United
States and California Constitutions, we conclude, were not
violated. The vicinage clause of the Sixth
Amendment[32] has not been incorporated by the
Fourteenth Amendment to apply in a state criminal trial.
(Price v. Superior Court, supra, 25 Cal.4th
at pp. 1063-1069.) For vicinage rights under the state
Constitution, “the vicinage right implied in article I,
section 16 of the California Constitution... constitutes
simply the right of an accused to a trial by an impartial
jury drawn from a place bearing some reasonable relationship
to the crime in question.” (Posey,
supra, 32 Cal.4th at p. 222, citation omitted.)
Defendant contends that, at the time of defendant’s
trial, African-Americans comprised 21.5 percent of potential
jurors in Compton, the superior court judicial district of
Los Angeles for Gardena, where the Williams murder was
committed, but comprised only 1.77 percent of the potential
jurors of Orange County, where the trial occurred. The
prosecutor below stipulated to the truth of defendant’s
statistical breakdown of the racial composition of the jury
pools in Compton and Orange County. But the prosecutor
pointed out that defendant failed to produce any authority
that the vicinage right under the state Constitution gives
rise to a defendant’s right to have a trial moved to a
county that has a greater percentage of jurors with the same
race as that of the defendant. On appeal, defendant likewise
fails to produce any authority for this position. To the
contrary: because venue was proper in Orange County under
section 781, as the place where preparations for the crime
were committed, the place of trial did bear “some
reasonable relationship to the crime in question” and
therefore satisfied the implied vicinage requirement of the
California Constitution. (Posey, at p. 222.)
D.
Asserted Unduly Suggestive Identification of Defendant by
Weaver
Weaver
identified defendant to police investigators as being present
at the CompUSA murder through a pretrial photographic array.
Defendant unsuccessfully made a pretrial motion to exclude
admission of the identification on the ground that the
photographic array was unduly suggestive. Defendant contends
the trial court erred and that Weaver’s in-court
identification was tainted due to the photographic array. As
we conclude below, the court did not err in denying
defendant’s pretrial motion. And because the pretrial
photographic array was not unduly suggestive, Weaver’s
in-court identification of defendant was not tainted.
1.
Background
According
to Weaver’s testimony, he met defendant in the CompUSA
parking lot on the night of the CompUSA murder. Inspector
Grasso testified that, at a hearing on defendant’s
pretrial motion to suppress that about eight months after the
CompUSA murder, he showed Weaver three photographic array
cards. Each photographic array card contained six
photographs. Grasso gave Weaver a lengthy admonition that
instructed him, among other things, that he did not have to
identify anyone (because it was just as important to free
innocent persons from suspicion as it was to identify those
who were guilty); that photographs do not always depict the
true complexion of a person, which might be lighter or darker
than that shown in the photograph; and that he should pay no
attention to whether the photos were in color or black and
white or to any other difference in the type or style of the
photographs.[33] The first photographic group
included a photograph of defendant’s brother Eric and
photographs of five other men. The second photographic group
contained a photograph of defendant and photographs of five
other men. The third photographic group contained a
photograph of Ervin (the shooter in the CompUSA murder) and
photographs of five other men.
Eric is
a dark-complexioned African-American man, as were the five
other men in his photographic array card. Defendant, however,
is a light-complexioned African-American man, and the five
other men in his photographic group were apparently White,
Hispanic, or of mixed race. [34] Ervin is a
dark-complexioned African-American man, as were the five
other men in his photographic group. Weaver identified Eric
from the first photographic array card and defendant from the
second, but he did not identify anyone from the third.
At
trial, during his direct examination by the prosecutor,
Weaver made an in-court identification of defendant. In
recounting his interviews with the police during the
investigation and his pretrial identification of defendant
through the photographic array, he was again shown the
pretrial photographic array card, from which he also
identified defendant.
2.
Analysis
In
determining whether a defendant’s right to due process
is violated by the admission of identification evidence, we
consider “(1) whether the identification procedure was
unduly suggestive and unnecessary, and, if so, (2) whether
the identification itself was nevertheless reliable under the
totality of the circumstances.ˮ (People v.
Kennedy (2005) 36 Cal.4th 595, 608.) A claim that an
identification procedure was unduly suggestive raises a mixed
question of law and fact to which we apply a standard of
independent review, although we review the determination of
historical facts regarding the procedure under a deferential
standard. (Id. at p. 609.)
Defendant
contends that the background color of the photographs of
defendant and his brother was darker than the background
color of the other photographs. Examining the array cards, we
note that the background colors of the photographs of
defendant and his brother are a slightly darker shade of
gray. But this difference did not render the photographic
lineup unduly suggestive, particularly in light of the
express admonition given to Weaver that he should pay no
attention to whether the photos were in color, in black and
white, or to any other difference in the type or style of the
photographs. We have previously rejected claims that
photographic arrays were unduly suggestive based on minor
variations in background color or discoloration of the
photograph. (People v. Johnson (1992) 3 Cal.4th
1183, 1217; People v. Gonzalez (2006) 38 Cal.4th
932, 943.)
Defense
counsel asserted below, and defendant renews on appeal, the
argument that defendant’s photographic array card was
unduly suggestive because defendant was the only
African-American man in it. But, as the prosecution argued
below, the races of the five other men in the photographic
array card were never established. Like defendant, the five
other men were similarly complexioned, had dark hair, and had
mustaches. As the trial court remarked, defendant’s
“racial characteristics are not outstandingly
apparent.” Indeed, defendant’s substantial
mustache, almost a handlebar, was his most distinctive
feature. In preparing the photographic array, the police were
faced with matching at least three relevant features of
defendant’s appearance - his complexion, his prominent
mustache, and his apparent racial or ethnic identity. The
police here did an admirable job of matching complexion and
mustaches. But apparent racial or ethnic identity is
something that is harder to quantify and agree on, so
opinions in this area can vary.
The
additional factor here is that Weaver knew that his teammate
Eric Clark, defendant’s brother, was African-American.
Given this, Weaver may have (correctly) assumed that
defendant, as Eric’s brother, was also
African-American. and been primed to look for a photograph of
an African-American on the card, or, conversely, to reject
out of hand a photograph of someone of another race.
But we
need not decide the issue here because, even if we assume for
the sake of argument that the photographic array was unduly
suggestive in regard to apparent racial or ethnic identity,
we conclude that the pretrial identification was
“nevertheless reliable under the totality of the
circumstances.” (People v. Cunningham (2001)
25 Cal.4th 926, 989.) In making this determination we take
into account “such factors as the opportunity of the
witness to view the suspect at the time of the offense, the
witness’s degree of attention at the time of the
offense, the accuracy of his or her prior description of the
suspect, the level of certainty demonstrated at the time of
the identification, and the lapse of time between the offense
and the identification.” (Ibid.) Weaver
certainly had a meaningful opportunity to closely observe
defendant during their extended contact on the night of the
CompUSA murder, including both a face-to-face meeting in the
parking lot and being in the passenger seat while defendant
drove towards and later made a quick getaway from the
computer store. That Weaver was a passenger in
defendant’s car as defendant engaged in a high-speed
escape from police cars with their signals flashing also
supports the inference that Weaver was focused on defendant
during such a memorable event.
E.
Asserted Unconstitutional Coercion of Alonzo Garrett
Prosecution
witness Alonzo Garrett refused to take the oath at
defendant’s preliminary hearing and was held in
contempt of court. But he later testified at
defendant’s trial. Defendant contends that
Garrett’s trial testimony was coerced and unreliable
because Garrett had been held in contempt for refusing to
take the oath at the preliminary hearing. But as we explain
below, defendant fails to show that Garrett’s trial
testimony was made unreliable by coercion.
1.
Background
At the
preliminary hearing, the prosecution called Garrett as a
witness. As Garrett had previously told the authorities and
later testified at defendant’s trial (recounted,
ante at pages 10 to 11), Garrett was a fellow
prisoner with defendant at the Orange County jail and knew
Ardell Williams. Defendant had shown Garrett transcripts of
Williams’s grand jury testimony and stated, “
‘Hey, this is the woman right here that could put me
away.’ ” Concerned that Williams was involved in
a dangerous situation because she was “snitching,
” Garrett later phoned Williams, who admitted that she
was the key witness in defendant’s case but assured him
that there was nothing to worry about.
Garrett
refused to even be sworn as a witness at the preliminary
hearing. Before Garrett was brought to the courtroom, his
counsel stated that he believed that Garrett had a Fifth
Amendment right to remain silent if asked any questions about
the murder of Williams. Garrett’s counsel also
acknowledged that he did not “know if we’ll ever
get there because... [Garrett] doesn’t even want to be
in the courtroom.” Garrett had asked counsel “to
inform the court that he’s not going to say a
word.” Garrett’s counsel contended that Garrett
could invoke his Fifth Amendment privilege on the grounds
that his phone call to Williams could be interpreted as an
attempt to dissuade a witness. The prosecutor’s
position was that the burden was on the witness for taking
the Fifth Amendment and that the prosecution should at least
be allowed to ask the witness questions before he could
assert the privilege.
Garrett
was then brought before the trial court and refused to speak.
After twice instructing Garrett, in the face of his continued
silence, to take the oath, the court informed him that he
could be found in contempt of court under section 166,
subdivision (a)(6), which provides that an unlawful refusal
of any person to be sworn as a witness constitutes a
misdemeanor. When Garrett continued to refuse to take the
oath, the court found that he had unlawfully refused to be
sworn as a witness and found him in contempt. The court
committed him to custody “until such time as he can
purge himself of contempt by taking the oath as a
witness.” Garrett never agreed to return to court as a
witness at the preliminary hearing. He pleaded guilty to the
contempt charges and was sentenced to one additional year to
be served consecutively to the 25-year sentence he was
already serving.
But
almost two years later, when the prosecution called Garrett
to testify at defendant’s trial, he agreed to testify.
As part of his testimony, Garrett acknowledged that he had
refused to testify at the preliminary hearing. But he stated
that he was testifying at defendant’s trial for a
number of reasons: (1) the prosecutor persisted in bringing
Garrett to court to testify; (2) Garrett did not want to
accrue any additional prison time by being held in contempt
of court again for refusing to testify; and (3) he had
“finally gotten over” the anger he had before the
preliminary hearing, when he refused to testify.
2.
Analysis
Defendant
contends that Garrett’s Fifth Amendment right against
self-incrimination was violated at the preliminary hearing
when the trial court found him in contempt of court for
refusing to testify. Respondent counters that Garrett failed
to properly invoke his privilege against self-incrimination
at the preliminary hearing and that, even if Garrett had made
a proper invocation, his claim would have failed because
Garrett’s testimony would not have been incriminating
to him. But we need not evaluate the substantive legal issues
surrounding Garrett’s constitutional rights.
Even if his Fifth Amendment rights were violated at the
preliminary hearing, such an error alone does not provide a
basis for excluding his trial testimony. Defendant has no
standing to raise a claim involving an alleged violation of
Garrett’s Fifth Amendment privilege. (People v.
Jenkins, supra, 22 Cal.4th at p. 965.) The
issue in this appeal is whether the circumstances of
Garrett’s testimony impacted defendant’s
constitutional rights.
Defendant
can raise a claim that the admission of Garrett’s
allegedly coerced testimony rendered defendant’s trial
fundamentally unfair. (People v. Jenkins,
supra, 22 Cal.4th at p. 966.) But he can succeed
only if he demonstrates “fundamental unfairness at
trial, ” usually by establishing that the evidence was
made unreliable by coercion. (Ibid.) Defendant fails
to do so.
What
defendant contends is that Garrett’s testimony was
coerced because Garrett had been previously held in contempt
for refusing to testify and he stated that one of the reasons
that he was now agreeing to testify was that he did not want
to be held in contempt again and accrue additional prison
time. Under these circumstances, though, Garrett was no more
“coerced” than is any witness at trial who is
subject to compulsory process and called to testify.
Furthermore, an analysis of the immediate circumstances
surrounding Garrett’s testimony at defendant’s
trial shows that Garrett was not coerced when he testified
there. Whether or not he had properly invoked his privilege
against self-incrimination at the preliminary hearing by
refusing even to be sworn, he took the oath at
defendant’s trial and would have been able to invoke
his privilege against self-incrimination when being
questioned if he chose to do so. He did not. Defendant points
to the fact that Garrett’s attorney was not present
when he testified at defendant’s trial as indicating
that he would have not believed that he could successfully
assert his Fifth Amendment privilege. But before he testified
in front of the jury, the trial court held a colloquy with
Garrett in which he stated that he was agreeing to proceed
with his testimony even though his attorney was not present
and that his decision to do so was uncoerced and voluntary.
Defendant also points to Garrett’s statement to the
court and the parties, outside the presence of the jury, that
Garrett had heard rumors that if he did not testify he would
“find [himself] somewhere in Pelican Bay, ” the
state’s supermaximum security prison. But outside the
presence of the jury, the prosecutor told him, “I want
you to know before the jury is brought in, that, as a
representative of the District Attorney’s office, I am
telling you that there is not going to be a recommendation
from the District Attorney’s office to send you to
Pelican Bay.” Defendant therefore fails to show that
Garrett was threatened with retaliation that would have
rendered his testimony unreliable.
Considering
Garrett’s testimony in light of the wider circumstances
also indicates that coercion did not render his testimony
unreliable. First, any pressure that was exerted on Garrett
was for him to testify, not for him to testify in a
particular manner. Defendant fails to show that there was any
pressure on Garrett to testify in a way that helped the
prosecutor and hurt the defense. Along these lines, defendant
fails to show that Garrett had something to gain personally
by testifying against defendant. Indeed, defendant
acknowledges that, in Garrett’s testimony, he
“demonstrated that he cared only about avoiding
additional jail time and his own ‘snitch’
status.” Defendant concludes that this shows that
“Garrett therefore clearly did not have
appellant’s interests in mind when he testified, nor
should he have.” But by the same reasoning, Garrett did
not have a motivation to skew his testimony against defendant
either. Second, the fact that Garrett gave the same account
of his jailhouse discussion with defendant before the
allegedly coercive events at the preliminary hearing further
undercuts the claim that the events at the preliminary
hearing rendered his trial testimony
unreliable.[35] Finally, the jury heard
Garrett’s own account that he was now testifying at
defendant’s trial, at least in part, because he had
previously been held in contempt. The jury could therefore
evaluate his testimony in light of that fact. In conclusion,
because defendant has not met his burden of showing that
Garrett’s testimony was unreliable as a result of
coercion, defendant fails to show that the admission of the
testimony rendered his trial fundamentally unfair.
F.
Admission of Conversations Between “Janet
Jackson” and Members of the Williams Family
Defendant
contends the trial court erred in admitting Yancey’s
statements under the Evidence Code section 1223 coconspirator
exception to the hearsay rule. As recounted, ante,
at page 12, the prosecutor presented evidence of the delivery
of flowers to Williams’s home on February 10, 1994 and
a subsequent series of phone calls where a woman identifying
herself as “Janet Jackson” arranged a “job
interview” for Williams, resulting in her murder.
Defendant contends insufficient evidence was presented to
support a prima facie case of the existence of the conspiracy
under Evidence Code section 1223 to allow the admission of
Yancey’s statements under the coconspirator exception
to the hearsay rule.
Respondent
contends that no objection was made at trial, thus forfeiting
this claim on appeal. Defendant responds that, at the
preliminary hearing, defense counsel raised an objection
under Evidence Code section 1223, which was rejected, to the
admission of Yancey’s statements. We agree with
respondent that the claim is forfeited for failure to raise
it below. Defendant fails to provide any authority that an
objection at a preliminary hearing is sufficient to preserve
the issue at trial and on appeal. Defendant is also
unconvincing in his argument that raising the hearsay issue
again at trial would have been futile. The absence of an
objection deprived the prosecutor and the court the
opportunity to identify which statements were actually
hearsay and which were not, and, for the hearsay ones, to
assess the exceptions under which they might be admissible.
For example, many, if not most, of the statements Yancey made
in posing as “Carolyn, ” the flower delivery
girl, and as “Janet Jackson” were lies and part
of a scheme of deception to lure Williams to her death. Thus,
these statements were not offered for the truth of the
matters asserted, but for the effect they had on Williams.
“[A]n out-of-court statement can be admitted for the
nonhearsay purpose of showing that it imparted certain
information to the hearer, and that the hearer, believing
such information to be true, acted in conformity with such
belief.” (People v. Montes (2014) 58 Cal.4th
809, 863.) On the other hand, some parts of Yancey’s
statements to Williams, like the date and time of the job
interview to which Williams was lured, arguably were meant to
be used for the truth of the matter asserted. But because
there were no hearsay objections at trial to Yancey’s
statements generally, let alone objections to specific
statements, the court was deprived of the opportunity to rule
on these issues.
Even if
we considered this claim on the merits, we would conclude
that Yancey’s statements were properly admitted under
Evidence Code section 1223. Under Evidence Code section 1223,
three preliminary facts must be established for evidence of a
coconspirator’s declaration to be admissible: (1) that
the declarant was participating in the conspiracy in question
at the time of the declaration, (2) that the declaration
furthered or was meant to further the conspiracy’s
objective, and (3) that the party against whom the evidence
is offered was - at the time of the declaration -
participating in the conspiracy, or would later participate
in it. (People v. Leach (1975) 15 Cal.3d 419,
430-431, fn. 10; see also People v. Hardy (1992) 2
Cal.4th 86, 139.) The party offering the coconspirator
statements is required to present “independent evidence
to establish prima facie the existence of... [a]
conspiracy.” (People v. Leach, supra,
15 Cal.3d at p. 430.) As we have stated in the context of
establishing criminal liability for a conspiracy,
“[e]vidence is sufficient to prove a conspiracy to
commit a crime ‘if it supports an inference that the
parties positively or tacitly came to a mutual understanding
to commit a crime. [Citation.] The existence of a conspiracy
may be inferred from the conduct, relationship, interests,
and activities of the alleged conspirators before and during
the alleged conspiracy.’ ” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1135.)
In this
case, the prosecution presented sufficient independent
evidence from which the trial court could have found a
conspiracy between defendant and Yancey to kill Williams.
Williams’s grand jury testimony, in which she described
her knowledge of defendant’s involvement with the
CompUSA murder and her subsequent cooperation with the
police, was evidence pointing to defendant’s motive to
have her murdered to prevent her from testifying at his
trial.[36] Garrett testified about
defendant’s awareness that Williams was a damaging
witness by recounting defendant’s remark that
“this is the woman right here that could put me
away.” Yancey’s relationship with defendant in
the period leading up to the Williams murder (Jan. through
Mar. 1994) was established through evidence of her phone
records indicating numerous calls to defendant’s
attorney and investigator, a pay phone in the Orange County
Jail accessible to Clark, and to Williams’s home.
During a search of Yancey’s apartment, police recovered
numerous letters between Yancey and defendant.
Moreover,
considerable evidence established that Yancey was the woman
who delivered the flowers to the Williams’s household
and who represented herself as “Janet Jackson” in
the phone conversations with Williams’s mother. In a
voice lineup, Williams’s mother and sister identified
Yancey’s voice as that of “Janet Jackson.”
They also identified Yancey in a photo lineup as the person
who delivered the flowers. One of Yancey’s fingerprints
was found on the box in which the flowers were delivered.
Defendant
also raises questions about the evidence showing that Yancey
was the flower delivery girl and the “Janet
Jackson” of the phone calls. He contends that
“this evidence is meaningless in the absence of what
was said during the Janet Jackson calls or flower
delivery” because “the prima facie finding of the
conspiracy must be made in the absence of those
statements.” In making this argument, defendant
presupposes that the only basis for admitting any of
Yancey’s statements was through Evidence Code section
1223, the coconspirator hearsay exception. But defendant
fails to appreciate the point, discussed above, that many, if
not most, of Yancey’s statements were also admissible
as nonhearsay. Thus, the trial court admitted the statements
independent of the requirements of the coconspirator hearsay
exception. As independent evidence, these statements
supported the inference that Yancey was involved in a
conspiracy with defendant to kill Williams.
Finally,
defendant contends that the admission of the statements under
the coconspirator exception to the hearsay rule violated his
right to confrontation under the Sixth Amendment to the
United States Constitution as it has subsequently been
defined in Crawford v. Washington (2004) 541 U.S. 36
(Crawford). Defendant failed to raise a
confrontation clause objection at trial. But because
defendant’s trial occurred before the decision in
Crawford, he has not forfeited his Crawford
challenge. (People v. Rangel (2016) 62 Cal.4th 1192,
1215-1216.) Defendant’s claim nonetheless fails on the
merits because he fails to show how Yancey’s statements
to Williams and her family were “testimonial”
under Crawford. The high court has left open the
possibility that statements to individuals who are not law
enforcement officers may, in certain circumstances, qualify
as testimonial. (Ohio v. Clark (2015) 576 U.S. ____
[135 S.Ct. 2173, 2181].) It has also noted, however, that
“statements made to someone who is not principally
charged with uncovering and prosecuting criminal behavior are
significantly less likely to be testimonial than statements
given to law enforcement officers.” (Id. at p.
2182.)[37]
III.
Jury Selection Issues
A.
Asserted Witt Error
Defendant
contends that various prospective and serving jurors were
erroneously included or excluded by trial court rulings on
prosecution and defense motions to exclude prospective jurors
for cause based on their views of the death penalty under
Wainwright v. Witt (1985) 469 U.S. 412
(Witt). We reject all of defendant’s
Witt claims.
The
federal constitutional standard for excusing a prospective
juror for cause based on his or her views of capital
punishment is whether “the juror’s views would
‘prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.’ ” (Witt, supra, 469 U.S.
at p. 424, fn. omitted.) Applying Witt, we have
stated that a prospective juror “is properly excluded
if he or she is unable to conscientiously consider all of the
sentencing alternatives, including the death penalty where
appropriate.” (People v. Rodrigues,
supra, 8 Cal.4th at p. 1146.) “On appeal, we
will uphold the trial court’s ruling if it is fairly
supported by the record, ” and we accept “as
binding the trial court’s determination as to the
prospective juror’s true state of mind when the
prospective juror has made statements that are conflicting or
ambiguous.” (People v. Mayfield (1997) 14
Cal.4th 668, 727.) “The same analysis applies to claims
involving erroneous juror exclusion or inclusion.”
(People v. Hoyos (2007) 41 Cal.4th 872, 905.)
1.
Erroneous Inclusion Claims
Defendant
contends the trial court erred in denying his challenges for
cause against 12 prospective jurors. Respondent contends
defendant has forfeited these claims. “[A] defendant
challenging on appeal the denial of a challenge for cause
must fulfill a trio of procedural requirements: (1) the
defense must exercise a peremptory challenge to remove the
juror in question; (2) the defense must exhaust all available
peremptory challenges; and (3) the defense must express
dissatisfaction with the jury as finally constituted.”
(People v. Weaver (2001) 26 Cal.4th 876, 910-911.)
Defendant acknowledges that he failed to meet these
requirements, to which there are no exceptions. He has
therefore forfeited his claims.
Even if
these claims were not forfeited, defendant fails to show any
possible prejudice. The 12 prospective jurors defendant
challenges are from defendant’s first trial in which
the jury returned a guilt phase verdict but failed to return
a penalty phase verdict. Witt error does not require
reversal of a guilty verdict. (People v. Tate (2010)
49 Cal.4th 635, 666.) Therefore, even if a Witt
violation occurred for any of these jurors, defendant is not
entitled to a reversal of his guilt phase conviction.
Defendant
advances further Witt claims regarding five of the
jurors who sat at his penalty retrial, where the jury
returned a sentence of death. But defendant acknowledges that
he failed to meet the procedural requirements for an
erroneous inclusion claim. In fact, defendant acknowledges
that “[s]everal of these jurors were not challenged for
cause by appellant’s counsel.” And defendant does
not identify where in the record trial counsel challenged
any of these jurors. Defendant therefore forfeited
these claims. Contrary to defendant’s assertions
otherwise, a trial court has no sua sponte duty to excuse
jurors for their views on the death penalty. (People v.
Taylor (2009) 47 Cal.4th 850, 884.) As noted
ante, to preserve a claim of error, the defendant
must challenge the juror for cause, exercise a peremptory
challenge, exhaust the available peremptory challenges, and
express dissatisfaction with the jury ultimately selected.
(Ibid.) Defendant, satisfying none of these
requirements, has forfeited these claims.
2.
Erroneous Exclusion Claims
Defendant
contends that the trial court erroneously granted, over his
objection, three of the prosecutor’s challenges for
cause based on the prospective jurors’ death penalty
views. These three prospective jurors, however, were at
defendant’s first trial, where no death verdict was
returned. As explained above, defendant cannot show any
prejudice from a Witt error at his first trial
because no death verdict was returned at that trial and any
Witt error would not be reversible on the guilty
verdict.
B.
Batson/Wheeler Challenge
Defense
counsel brought a motion under Batson v. Kentucky
(1986) 476 U.S. 79, 84-89 and People v. Wheeler
(1978) 22 Cal.3d 258, 276-277 based on the prosecutor’s
use of a peremptory challenge against a Native American
prospective juror. The trial court denied the motion, finding
that defense counsel failed to make a prima facie showing
that the prosecutor had exercised a peremptory challenge in a
discriminatory manner. As discussed below, we conclude the
trial court did not err in its ruling.
1.
Background
The
prosecutor exercised a peremptory challenge against
Prospective Juror P. M., to which defense counsel objected on
Batson/Wheeler grounds. The trial court
then held a hearing outside the presence of the prospective
jurors. Defense counsel explained that he had brought the
motion because of the small number of minority prospective
jurors in the pool and stated: “I don’t see
anything in his questionnaire that would make him any
different than any other member that’s on the jury.
This is as vanilla as you can get, this juror.” When
defense counsel was asked to make his prima facie showing of
discrimination, he stated that P. M. had been one of the two
minority prospective jurors in the jury box. Defense counsel
explained that there had been three minority prospective
jurors: Prospective Juror C. T., whom the parties dismissed
by stipulation; juror number 9, a Hispanic woman, who was
currently in the jury box; and P. M., whom the prosecutor had
dismissed. P. M. self-identified as “American
Indian” in his jury questionnaire. The prosecutor
responded that defense counsel had not made a prima facie
case, and the prosecution would not indicate its reasons for
the peremptory challenge unless the court made such a
finding. The court denied the motion, finding that the
defense had not made a prima facie showing of discrimination.
2.
Analysis
We
follow a familiar three-step analysis in considering a
Batson/Wheeler motion: (1) a defendant must make a
prima facie case by demonstrating that the totality of the
relevant facts establishes an inference of discriminatory
purpose; (2) if the defendant makes a prima facie case, the
prosecutor bears the burden of adequately explaining the
exclusion with permissible race-neutral justifications; and
(3) if the prosecutor offers a race-neutral explanation, the
trial court must decide whether the defendant has proved
purposeful racial discrimination. (Johnson v.
California (2005) 545 U.S. 162, 168, fn. omitted.)
Defendant
argues that we should presume the trial court applied the
“strong likelihood” standard for the first stage,
which was controlling California law before the United State
Supreme Court’s articulation of the standard in
Johnson v. California, supra, 545 U.S. at
page 168. But, as we have held, “[r]egardless of the
standard employed by the trial court, and even assuming
without deciding that the trial court’s decision is not
entitled to deference, we have reviewed the record and, like
the United States Supreme Court in Johnson... [we]
are able to apply the high court’s standard and resolve
the legal question whether the record supports an
inference that the prosecutor excused a juror on the basis of
race.” (People v. Cornwell (2005) 37 Cal.4th
50, 73, citation omitted.)
Defendant
contends that the trial court erred in denying the motion
because the court at one point referred to “no prima
facie showing of pattern.” Defendant points to the
United States Supreme Court’s statement that even
“ ‘ “a single invidiously discriminatory
governmental act” is not “immunized by the
absence of such discrimination in the making of other
comparable decisions.” ’ ˮ (Johnson v.
California, supra, 545 U.S. at p. 169, fn. 5.)
But the court merely referred to defendant’s failure to
make a prima facie showing of discrimination on the grounds
that defendant himself raised in explaining his basis for the
motion, which was based on pattern - namely the fact that P.
M. was one of two minority jurors in the jury box at the time
that the prosecutor excused him. The court did not state that
only evidence of a pattern of improper challenges could
establish a prima facie showing of a violation. As we have
stated, “To be sure, the ultimate issue to be addressed
on a Wheeler-Batson motion ‘is not
whether there is a pattern of systematic exclusion; rather,
the issue is whether a particular prospective juror has been
challenged because of group bias.’ [Citation.] But in
drawing an inference of discrimination from the fact one
party has excused ‘most or all’ members of a
cognizable group [citation], a court finding a prima facie
case is necessarily relying on an apparent pattern in the
party’s challenges. Although circumstances may be
imagined in which a prima facie case could be shown on the
basis of a single excusal, in the ordinary case, including
this one, to make a prima facie case after the excusal of
only one or two members of a group is very difficult.”
(People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.)
We
agree with the trial court: defendant failed to make a prima
facie case based on the excusal of this one Native American
prospective juror. Defense counsel below pointed to no
circumstances beside an asserted pattern of exclusion of
minority prospective jurors in support of his
Batson/Wheeler motion. But one challenge is
not a pattern. The excusal of one minority juror was the
result of a stipulation by the parties. There was one
minority juror remaining in the jury box when the prosecutor
challenged P. M. The fact that defense counsel said he saw no
reason for the prosecutor to challenge P. M. does not raise
an inference that the prosecutor’s reason for doing so
was improper group bias.
On
appeal, defendant seeks, for the first time, to make a case
based on comparative juror analysis, contending that, based
on statements made during voir dire, R. R., a Caucasian
prospective juror not challenged by the prosecutor, was more
likely to vote for a sentence of life without the possibility
of parole than P. M. We decline to engage defendant’s
attempt to raise comparative juror analysis for the first
time on appeal in this stage one
Batson/Wheeler claim. Our obligation to
consider comparative juror analysis for the first time on
appeal only applies to stage three
Batson/Wheeler claims, not stage one
claims. (People v. Lenix (2008) 44 Cal.4th 602, 622,
fn. 15.) Defense counsel did not engage in comparative juror
analysis below by pointing to any specifics about any other
prospective jurors. Defense counsel merely made the generic
claim that P. M. was no different than the other jurors. As
we have stated in declining to consider comparative juror
analysis in a first-stage Batson/Wheeler
claim, “[w]here, as here, no reasons for the
prosecutor’s challenges were accepted or posited by
either the trial court or this court, there is no fit subject
for comparison. Comparative juror analysis would be formless
and unbounded.” (People v. Bell,
supra, 40 Cal.4th at p. 601.)
IV.
Guilt Phase Issues
A.
Exclusion of Defendant from the Immunity Proceedings of
Prosecution Witnesses
Under
the Fifth Amendment to the federal Constitution, “a
defendant is guaranteed the right to be present at any stage
of the criminal proceeding... critical to its outcome if his
presence would contribute to the fairness of the
procedure.” (Kentucky v. Stincer (1986) 482
U.S. 730, 745.) Defendant contends that his federal
constitutional right was violated because he was excluded
from the section 1324 immunity hearings for prosecution
witnesses Matthew Weaver and Jeanette Moore.[38] Defendant
forfeited this claim by failing to object or seek relief from
the trial court. Defendant also contends that the appellate
record is inadequate because transcripts of the immunity
hearings are not included in the record. Defendant fails to
meet his burden of showing that this deficiency is
prejudicial to his ability to prosecute his appeal.
Weaver
and Moore were important witnesses for the prosecution in
tying defendant to the CompUSA murder. Both witnesses were
also potentially liable for prosecution for aiding and
abetting the crime. Weaver was at the scene of the CompUSA
murder in order to help move the computers. Moore
fraudulently obtained a driver’s license in someone
else’s name, which she used to rent the U-Haul truck
that defendant intended to use to haul away the computers.
Thus, the prosecutor sought immunity for Weaver and Moore
under section 1324, which was granted by another judge in a
separate proceeding that occurred on the mornings that Moore
and Weaver testified at defendant’s trial.
Defendant
contends that he was “excluded” from the Moore
and Weaver immunity hearings. But defendant failed to raise
any objection to his or his attorney’s absence from the
hearings. The prosecutor informed defendant and the trial
court about the immunity proceedings for Moore and Weaver
that were to take place in front of another judge. Defendant
did not seek any ruling from the court on these immunity
proceedings. Rather, the court, out of a stated concern for
the record, independently inquired: “Have adequate
provisions been made for the reporting, and is there any
requirement that for that proceeding, in view of the status
of the trial, that [defendant] and his counsel be present at
any proceeding involving a during-the-trial grant of
immunity?” The prosecutor replied, “Not to my
knowledge, there is none. I mean, it’s not between
[defendant] - [defendant] is not a party to that.” The
court stated, “I will rely on your opinion. I just
wanted to throw it out.” Defendant states that
“ultimately appellant and counsel were not present at
the immunity hearing for either Jeanette Moore or Matt
Weaver, ” but nothing in the record establishes the
defense asserted a right to be present or even asked to
attend. Similarly, at no point during the trial did the
defense assert that these witnesses could not be effectively
cross-examined in light of the defense’s absence from
the hearings or the lack of a transcript of the hearings. On
this record, defendant has forfeited his claim that his
rights were violated and we therefore do not address the
merits of the claim.
Defendant
also contends that the appellate record is inadequate because
transcripts of the immunity hearings are not included in the
record in violation of his constitutional rights and section
190.9 and its implementing rule of court, currently rule
8.610 of the California Rules of Court. In fact,
Weaver’s immunity hearing on Tuesday, April 2, 1996,
was reported and is included in the record. Moore’s
immunity hearing, however, does not appear to be in the
record.
Defendant
fails to point to any particular provision of the rules to
support his contention that the transcripts of the immunity
proceeding should have been included. But even if they should
have been, defendant fails to show prejudice. “ ‘
“A criminal defendant is... entitled to a record on
appeal that is adequate to permit meaningful review.... The
record on appeal is inadequate, however, only if the
complained-of deficiency is prejudicial to the
defendant’s ability to prosecute his appeal.
[Citation.] It is the defendant’s burden to show
prejudice of this sort.” ʼ ˮ (People v.
Huggins (2006) 38 Cal.4th 175, 204.) Defendant contends
that defense counsel was prejudiced by the lack of a
transcript because counsel could not effectively
cross-examine Moore and Weaver about the precise nature of
the immunity they were granted and any other benefits they
received. Defendant contends that, on appeal, he cannot now
show that their testimony before the jury was false.
Defense
counsel had the opportunity to cross-examine Moore and Weaver
on the precise nature of the immunity these witnesses were
granted. Indeed, the topic of their immunity was thoroughly
explored when each one testified at trial. At the beginning
of each witness’s testimony, the prosecutor extensively
questioned each one about the immunity that had been granted.
Defense counsel cross-examined Moore on the topic, but did
not raise the issue with Weaver. Because defendant fails to
specify what aspect of these witnesses’ grant of
immunity was not already explored at trial - and would have
been illuminated by the transcripts of Moore’s hearing
- he has failed to show how the assumed deficiency in the
record is prejudicial to his appeal.
B.
Admission of Williams’s Statements for a Nonhearsay
Purpose
Defendant
contends the trial court improperly admitted Williams’s
grand jury testimony and police interview statements for the
nonhearsay purposes of establishing defendant’s motive
to kill her and establishing that she was a witness against
defendant, as alleged in the murder of a witness
special-circumstance allegation under section 190.2,
subdivision (a)(10). The court did not err in admitting this
material for these nonhearsay purposes or in denying
defendant’s objection to this material under Evidence
Code section 352.
1.
Background
The
prosecutor initially sought to admit Williams’s grand
jury testimony and police interview statements under Evidence
Code section 1350, a hearsay exception for instances in which
a defendant causes the unavailability of a witness. The
prosecutor also raised the possibility of admitting the
material for the nonhearsay purpose of showing motive.
[39] The trial court conducted a hearing
and called witnesses to assess whether Williams’s
statements were made under circumstances that indicated
trustworthiness, as required by Evidence Code section 1350,
subdivision (a)(4). Ultimately, the court ruled that
Williams’s statements did not meet the trustworthiness
requirement of Evidence Code section 1350 and denied the
admission of the statements under that section.
But the
trial court also ruled that the statements were admissible
for the nonhearsay purposes of showing motive and
establishing the corpus delicti of the witness-killing
special-circumstance allegation. Defendant argued, however,
that only the fact that Williams testified to the grand jury
and gave statements to the police should have been
admissible, not the content of her statements. The court
inquired whether there was another way of placing before the
jury the information that she had been a witness adverse to
defendant, other than admitting the statements verbatim. The
court presented as a possibility, “thinking out loud,
” that someone who had been present at the grand jury
proceeding could testify that Williams was called as witness
against defendant and gave statements that were detrimental
to him. The prosecutor replied that “the heart of the
People’s case... is how the information was given by
the prosecution to the defense team during that period of
time, and what [defendant] then did with that knowledge,
” and that this information “fuel[ed] the motive
for [defendant’s] wanting Ardell Williams murdered in
retaliation for giving the information, and to prevent her
testimony” at trial. The prosecutor stated that merely
calling a witness to testify that Williams testified at the
grand jury and implicated defendant would deny the
prosecution “the ability to show ...