California Court of Appeals, Fourth District, First Division
Cal.Rptr.3d 284] APPEAL from a judgment of the Superior Court
of San Diego County, Jeffrey F. Fraser, Judge. Affirmed.
(Super. Ct. No. SCE361596).
[Copyrighted Material Omitted]
Bookout, San Diego, under appointment by the Court of Appeal,
for Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting, and Daniel J. Hilton, Deputy
Attorneys General, for Plaintiff and Respondent.
the jury deadlocked and the trial court declared a mistrial,
a second jury was empaneled and then it convicted Marlin
Royal of first degree murder (Pen. Code, � 187). The jury
also found true that Royal personally used a firearm in the
commission of the murder (� 12022.5, subd. (a)) and
intentionally discharged a firearm causing death (� 12022.53,
subd. (d)). Royal subsequently admitted a serious felony
prior (� 667, subd. (a)(1)) as well as two prior strikes (�
667, subds. (b)-(i)). The court sentenced Royal to prison for
100 years to life, plus five years.
appeals, contending: (1) the prosecution did not exercise due
diligence in securing the key witness to testify during
Royal’s second trial (leading the prosecution to read the
transcript of the witness’s testimony at the second trial);
(2) the trial [256 Cal.Rptr.3d 285] court erroneously
admitted hearsay evidence as past recollection recorded; and
(3) the trial court improperly limited the scope of the
cross-examination of the prosecution’s expert witness.
Although we conclude the trial court erred in admitting
certain evidence under the past recollection recorded
exception to the hearsay rule, we determine such error to be
harmless. Additionally, we find Royal’s other claims of error
without merit. We therefore affirm the judgment.
7, 2007, at around 10:15 p.m., a man left his house on Millar
Ranch Road to meet his friend at a nearby restaurant. As he
drove down Millar Ranch Road, he had to swerve to avoid
striking an object in the road. Because the object resembled
the lower half of a person, the man called 911. As he was
calling 911, a car with three women pulled up next to him.
The driver of this other vehicle, who appeared Middle Eastern
or Hispanic, seemed confused or nervous and asked the man if
he had seen anything in the road. When the man informed her
that he had, and that he was on the phone with 911, the women
drove off in the direction from which the man came.
10:25 p.m., a San Diego County Sheriff’s Deputy was
dispatched to the scene. The responding deputy found the
victim, R.J., lying partially in the bushes. Part of his
brain and skull fragments were scattered in the road by his
feet. Paramedics pronounced R.J. dead at the scene.
lighter, cigarette butt, gum wrapper, and saliva were found
near the victim’s body. The victim’s wallet contained only a
autopsy revealed that R.J. died from a shotgun blast to the
head. The fatal shot was likely fired from within three feet.
There was methamphetamine in his system. Based on the
evidence recovered at the scene, a criminalist stated the
shotgun shell used to kill R.J. was most likely "a
Remington shot shell of .12 gauge caliber containing No. 6
shot." The criminalist believed that Remington had
likely sold hundreds of millions of shotgun shells in the
past 25 years, and she acknowledged the shell that killed the
victim could have come from any 12-gauge shell with number 6
shot with similar manufacturing characteristics. The
criminalist also testified that it could be possible that
other manufacturers could use Remington components such as
wadding inside their own shells, so that the shell that
killed the victim potentially could have come from any number
victim’s cell phone, found underneath his body, provided
investigators with certain information regarding where the
victim was leading up to his death. R.J. had last been seen
alive in a parking lot by Wrigley’s Supermarket on Euclid
Avenue near his home. Cell tower records confirmed his phone
had been in that area. These records showed the victim’s cell
phone, and a cell phone with the number (310) 693-3741,
moving in the same direction toward the crime scene. The 310
number belonged to Royal.
Investigators examined R.J.’s call logs. R.J. had called
several people on May 7th including his father, sister, and
girlfriend. R.J. had placed four outgoing calls to Royal’s
number around 11:30 a.m. Cell data indicated the calls were
placed from a tower in National City near his home. At 1:59
p.m. and 2:58 p.m., R.J. placed two [256 Cal.Rptr.3d 286]
more calls to Royal’s phone. R.J. again called Royal at 7:59
p.m. A call made from the victim’s phone at 9:06 p.m.
connected to a different cell tower than the previous calls,
indicating that R.J. might have been moving. The victim made
several more calls between 9:32 p.m. and 9:40 p.m. These
calls utilized a cell tower by Jamul and Rancho San Diego,
near where R.J.’s body was found.
night he was killed, R.J. exchanged several flirtatious texts
with a female friend between 8:03 p.m. and 8:24 p.m. He never
responded to a follow up text she sent him at 8:45 p.m.,
which was unusual. Sometime between 8:30 p.m. and 9:00 p.m.,
R.J. called one of his friends looking for his girlfriend.
The friend detected nothing unusual about R.J.’s voice.
Royal’s phone records from the day of R.J.’s death also were
analyzed. His phone had called numbers associated with his
mother, stepfather, a landline
registered in his stepfather’s name, and a landline
registered to a woman living with him. Royal’s phone also had
been used to call a "Livelinks/phone sex" hotline.
Phone records also showed a call from a pay phone off of
Jamacha Road to Royal’s mother’s number on the night R.J. was
killed. Royal’s mother’s cell phone also had called a Ralph’s
grocery store around the time of R.J.’s death. The last call
between Royal and his mother occurred at 1:00 a.m. on May 8.
around 8:30 p.m., Royal’s phone had been connected to a cell
tower in National City. After that, his phone had connected
to the tower by Jamul and Rancho San Diego. There were no
calls between 8:31 p.m. and 10:18 p.m.
Royal’s friend introduced him to R.J. R.J.’s nickname was
"Snake," and he occasionally engaged in minor
scams. For example, he once sold a friend a phone for $50
that did not have a working home button. Before his death,
R.J. was using methamphetamine and losing weight.
day he died, R.J. received a phone call, after which he said,
"Oh, I just need to go take care of something. I’m
meeting somebody at Wrigley’s." He also changed into
nicer clothes. His girlfriend asked him who he was meeting
but he did not say, mentioning that the person he was meeting
told him not to bring her along because "they were about
to go handle man business." R.J. sometimes served as a
middleman in drug transactions, matching up a seller and
buyer in return for a cut of the drugs.
R.J. left for Wrigley’s, his girlfriend followed him for a
short while. However, R.J. told her to wait for him at
another friend’s house, where she ended up sleeping that
was a key prosecution witness. She testified during Royal’s
first trial, but did not do so in the second. Instead, a
transcript of her testimony was read to the jury during the
met Royal when she was 24 or 25 years old. The couple began
dating and remained in a relationship for about eight years.
After dating for six months, Royal persuaded L.N. to begin
prostituting herself. She gave the money she earned as a
prostitute to Royal. However, Royal became violent with L.N.,
beating her on multiple occasions, which resulted in several
separate incidents, Royal’s two vehicles were shot up. One
night, L.N. saw Royal putting a shotgun into his pants. Royal
normally kept the shotgun under his bed. Royal was upset that
his vehicles had been shot up. Later that night, Royal called
L.N. and told her he needed to be picked up at a
supermarket. L.N., Royal’s mother, and Royal’s stepfather
drove to pick up Royal at the supermarket off of [256
Cal.Rptr.3d 287] State Route 94. After they picked him up,
Royal told them he had murdered someone. Royal explained that
he had asked R.J. who had shot at his car. R.J. refused to
tell him and was pleading for his life. Royal told R.J. he
would give him "one more chance." After "the
victim said he couldn’t tell him ... everything went
did not have the shotgun when he got back to the car. Around
2:00 or 3:00 a.m., Royal left to find the gun. When he
returned, Royal and L.N. went to a diner in Mission Valley.
They stayed there until early morning and then went to
Royal’s grandfather’s house. There, they saw a television
broadcast about R.J.’s murder. When Royal saw the news story,
he announced, "That’s it. That’s him."
and L.N. then went to Texas for a few days before returning
to San Diego. A few weeks later, Royal and L.N. decided to
drive to Missouri. As they were passing through Arizona, they
were pulled over by law enforcement. An Arizona police
officer found a box of shotgun shells in the trunk of Royal’s
car. These shotgun shells were Remington 12 gauges with No. 6
shot. L.N. also had a small amount of drugs in her purse.
After the Arizona incident, the couple’s relationship ended,
and L.N. moved to Georgia to live with family.
2013, detectives contacted L.N. in Nevada. She initially
denied having information about the murder, but in a second
interview, she admitted that Royal had confessed to
committing the crime. She added that the shooting might have
been related to Royal’s car getting shot up. L.N. also
informed the detectives that a lot of men were angry with
Royal because he had pimped their girlfriends or wives.
also claimed that Royal made her call R.J. multiple times to
get him to meet her at Wrigley’s. She denied that she was
arranging to meet R.J. for paid sex. L.N. was "deathly
afraid" of Royal.
Additionally, L.N. told the detectives that "there might
be an association between [an individual identified as] Ali
and one of the [car] shootings ...." Royal and Ali had
formerly worked together at NASSCO. Royal and Ali went to Los
Angeles together, where Ali got arrested for a parole
violation because he had left San Diego County. At some point
before the murder, Royal beat up Ali, apparently because he
thought Ali was involved in one of the car shootings.
According to one of the detectives, regarding R.J.’s death,
L.N. "suggested that [Ali] might be somehow involved or
a reason why."
prosecution also called a clinical social worker as a sexual
trafficking expert. She testified that women who are
trafficked and abused commonly suffer from memory loss and
Kenneth Stewart, the lead investigator assigned to the case,
testified that L.N. avoided cooperating with the
investigation. In 2015 and 2016, it took Stewart almost a
year to locate and serve her with a subpoena. L.N. testified
at the preliminary hearing in December of 2016 and the first
trial in September of 2017. Before her September testimony,
she was informed that the defense planned to argue that she
had committed the murder. This upset her, making her more
fearful and less cooperative.
weeks before the second trial began, in March 2018, L.N.
called the prosecutor and told her she would not [256
Cal.Rptr.3d 288] come to court, give up her location, or
cooperate. Stewart believed that L.N. had moved from Nevada
attorney testified at Royal’s second trial. He testified that
L.N. had contacted him in the last ten days. L.N. told him to
present the prosecutor with a list of demands if she was to
testify. She wanted immunity from prosecution for R.J.’s
murder, her mother to be left alone, and $15,000.
parties also stipulated that L.N. had attempted to invoke her
Fifth Amendment right not to testify in the first trial. The
trial court, however, had ruled that she had no Fifth
Amendment right because her testimony "did not
incriminate herself and implicate the Fifth Amendment."
testified in his defense. He claimed he did not have anything
to do with R.J.’s murder. He met L.N. on a Livelinks phone
sex hotline. She was already prostituting herself, but Royal
decided to act as her pimp to "show her the correct way
to do it." Royal also was pimping another woman in Los
Angeles. Royal stated that he wanted to help L.N. prostitute
herself in a safe manner, but admitted he had beaten her up
on two occasions.
According to Royal, L.N. "became a very ruthless, very
conniving, deceiving prostitute." In 2005, Royal quit
pimping and began working at NASSCO. He claimed that he
obtain "a lot of certifications" while at NASSCO,
including certified sheet metalist, crane operator,
electrician, and pipefitter. He denied he started at NASSCO
as a student pipefitter and left as a pipefitter trainee. In
2006, Royal left NASSCO because he was devoted to his other
two jobs, a cell phone business and a printing business.
testified that he made over $100,000 a year from his two
companies. However, he admitted that he did not always pay
his bills. L.N. helped Royal
with the administrative work for the cell phone business. He
also admitted the (310) 693-3741 phone number was his and his
business cards included that number. He stated that the
number was "important," and he chose the 310 area
code because "310 was like a nice neighborhood, Beverly
Hills," and he wanted the business to be associated with
November 6, 2006, Royal took his friend Ali, to Los Angeles.
Ali was detained in Los Angeles and found to be in violation
of his parole. Ali ended up going back to prison and blamed
his misfortune on Royal. When Ali got out of custody, he
arranged for "three assassins" to shoot up one of
Royal’s friends introduced him to R.J. Royal and R.J. hung
out about 10 times. Royal knew that R.J. had a
methamphetamine problem. He employed R.J. as a telemarketer.
According to Royal, he gave L.N. the phone with the 310 area
code on May 7 and told her to give to it R.J. so he could use
it to make cold calls. Royal explained that he decided to
give this phone to R.J. because "the 310 number was kind
of like a phone [he] didn’t really care about."
7, Royal got home from work around 3:00 or 3:30 p.m., and
went out with one of the women he was seeing. He returned
home around "11:00ish, somewhere around there, at
nighttime." L.N. was not home when he got home, which
was unusual. Royal became upset because he thought L.N. was
cheating on him.
11:15 p.m., L.N. called Royal from the supermarket acting
nervous and timid. Royal was "highly upset" when
she told him she had not given the phone to R.J. like he had
told her to do. Royal claimed the series of calls from his
phone to his mother and stepfather were a subsequent [256
Cal.Rptr.3d 289] "huge argument" between him and
L.N. According to Royal, they argued and hung up on each
other, and he changed phones as he walked around his house.
Royal also explained that the call at 11:39 p.m. to the
supermarket from his mother’s phone occurred because he did
not believe that L.N. had been calling from the supermarket
and wanted to see if she was actually there.
did not see L.N. until the following morning around 6:00 or
7:00 a.m. She was still carrying Royal’s phone, but Royal did
not know what she did with it. Royal did not go to a diner in
Mission Valley or his grandfather’s house.
admitted he suffered from a "terrible record" that
included three prior robbery convictions and an assault
conviction. He also admitted to
beating L.N. on two occasions. He beat her the first time
because she was "lying" and "difficult."
The second time he beat her because she gave him food
poisoning. L.N. had lied to Royal about her stepfather
sexually abusing her.
claimed he had never had any firearms at his mother’s house,
and that he did not have access to his stepfather’s firearms.
He also testified, "I don’t think I knew they was in
there," when asked about the shotgun shells found by
Arizona police in his car.
Royal’s mother testified that while L.N. was living with
Royal she came and went as she pleased and did not appear to
be afraid of leaving the house. During this time, L.N. would
visit her own family. L.N. drove a white compact car and
never appeared to be afraid of Royal.
did not have a gun in the house, and his mother was adamant
she would have found it if he did. Both Royal and L.N. had
separate cell phones, and there were separate landlines in
Royal and L.N.’s bedroom and in the kitchen. Royal’s mother
would leave her own cell phone in various locations whenever
she was at home; her husband would leave his cell phone in a
charger at night and would not have known if anyone used it.
Royal’s mother also claimed she did not drive to pick up
Royal from Spring Valley in May of 2007, and that she never
heard him say he had killed someone.
stepfather had triple bypass surgery in April of 2006 and
experienced a significant recovery period, which included
being hospitalized with pneumonia. According to him, there
was no way he could have driven to Spring Valley in May 2007
to pick up Royal. He likewise was confident he did not hear
Royal confess that he had killed anyone. He owned a shotgun
and many other guns, but kept them locked up.
defense investigator testified that Royal’s mother expressed
frustration with the fact that L.N. stopped running Royal’s
businesses and was not generating money for his legal
defense crime scene analyst testified that he could not
definitively establish whether the victim was standing,
kneeling, or ducking when he was shot. There was dried grass
and dirt on the victim’s back, which could not have been
there had the victim been shot from behind while kneeling
execution-style and fallen straight forward.
forensic examiner reviewed the calls made from Royal’s phone.
He testified that the prosecution’s experts ...