Opinion
C083662
10-03-2018
THE PEOPLE, Plaintiff and Respondent, v. DIANA MARIE CREECH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F01268)
In this cold case homicide, the jury found defendant Diana Marie Creech guilty of first degree murder but found a personal firearm-use enhancement not true. (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a)(1).) The trial court sentenced defendant to prison for 25 years to life, and she timely filed this appeal.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends reversal is required because: (1) there was an unjustified and prejudicial pre-accusation delay; (2) trial counsel provided ineffective assistance of counsel (IAC) by not seeking exclusion of lay opinion evidence; (3) the trial court improperly allowed the jury to learn of defendant's criminal history, time in prison, and narcotics sales; (4) trial counsel provided IAC in not seeking a curative instruction about prior crimes; (5) the court improperly reopened jury selection after the jury was sworn; and (6) the court did not apply sentencing rules in place at the time of the crime, resulting in errors regarding a fine and presentence conduct credits. The Attorney General concedes error in reopening jury selection and sentencing, but argues trial counsel affirmatively acquiesced in the error regarding jury selection, which in any event was not prejudicial. The Attorney General also contends the case should be remanded for the trial court to correct the sentencing errors.
We find no prejudicial error warranting reversal. We shall modify the judgment (see § 1260), to strike a fine not authorized at the time of the crime and to award presentence conduct credits. We shall affirm the judgment as modified.
BACKGROUND
The evidence viewed in the light favorable to the verdict shows that defendant and Tom Hulsey posed as hitchhikers and engaged in robberies to feed their narcotics habit. During such a robbery in April 1986, one of them shot James Rowe twice in the head. They left Rowe's corpse in his pickup truck and fled on foot. Later that year defendant made inculpatory statements that were reported to the police in 1988, but this lead was not fully pursued. Much later, a cold case detective submitted fingerprints found on the truck for reevaluation using newer technology, and in 2014 a match to defendant was made. Defendant then made incriminating statements to the police, but claimed Hulsey shot Rowe and she thought only a robbery would occur.
Defendant asserts that the jury believed she was not the shooter because it returned a not true finding on the firearm enhancement. But it is well-settled that an acquittal on one count or a not true finding on an enhancement does not weaken evidence of other counts, because such findings could have been the product of lenity, compromise, or mistake. (See People v. Miranda (2011) 192 Cal.App.4th 398, 405-407.)
The Body
In April 1986 Rowe's body was found on the passenger floorboards of his truck, near the Highway 160 split from Interstate 80 Business. He was shot twice in the back of the head. A front pants pocket was turned out and his wallet was not found, but he had $13 in his pants. He was killed between the late night and late morning of April 24-25. There had been a Wonder Bread bakery factory over a fence nearby.
The Fingerprints
Several of defendant's fingerprints, some in blood, were found on the outside of the truck.
The Conversation
In 1986 Deborah McKay was dating John Silva, who had a friend named Mike Anderson. These three and defendant stayed in a South Lake Tahoe motel. While feigning sleep, McKay heard defendant tell Silva that she had shot a man in a truck to get drugs; defendant said she made the man get down and shot him in the back of the head. This occurred near Madison Avenue and Interstate 80. McKay told Terry Ross what she had heard. In 1988 McKay told a detective what she remembered, including that defendant--whom she knew as "Diana"--worked at a ski lodge. When she spoke to a detective in 2014, she said she heard defendant say "they" had beat up and shot someone.
Detective Brian Dedonder testified that when he spoke with McKay in 2014, she remembered that same conversation with all four people participating. McKay recalled someone said a car was broken down and she had heard defendant describe beating up and shooting someone in the head together with a man.
The Interviews and Jailhouse Telephone Calls
The jury saw three video recordings of police interviews with defendant and heard an audio recording of some jailhouse telephone calls between defendant and her husband.
Detectives Dedonder and Kyle Jasperson conducted two interviews with defendant in Myrtle Beach, South Carolina--where she had lived for over 20 years--and after they arrested her she requested a third interview when they arrived in Sacramento.
In the first interview, on November 7, 2014, defendant told the detectives she has dementia and sometimes hesitated before answering or seemed to struggle to recall things. But she related many details from her life and appropriately responded even when she did not know--or claimed not to know--the answers.
After defendant repeatedly denied recognizing the victim or his distinctive truck, she was told her name had come up and the detectives were "pretty confident" she had been in that truck. Defendant then said the victim might have picked her up hitchhiking, something she used to do all the time. When the detectives showed her photographs of her fingerprints on the truck, she said she did not know how her prints ended up on the truck and needed time to think. She insisted she did not kill anyone, and when asked if she was with someone said she could not remember. They told her a fingerprint was in the victim's blood, meaning she must have been in the car after he was dead. She asked for more time to think about it. She repeatedly admitted using and selling crystal methamphetamine, but when asked she denied having robbed people. When asked to provide a DNA sample, she volunteered that "[t]he prison has my DNA."
The second interview was on March 9, 2015, after the detectives had obtained an arrest warrant. Defendant remembered having been a ski operator at Donner Summit. She maintained she had no idea how her fingerprint came to be on the truck. She said she did not kill people, and she did not remember anything about being in a truck with the victim.
When asked if she had ever been around someone who was killed, the following passage ensued: "[A.] Well, I didn't kill nobody. I'm not a murderer. [¶] [Q.] Well, maybe - were you with somebody that may have done something? [¶] [A.] Maybe Tom Hulsey. [¶] [Q.] Tom Hulsley [sic]? And who was he? [¶] [A] He was a guy I was dating. And he stayed at Richard's house with me." Defendant told the detectives that she had lived with Richard Gonzalez, who she referred to as a step-father in north Sacramento. She spelled Hulsey's name and described him as a White man who would "rob people for drug money and stuff." She had dated Hulsey for about a year while she was married to Doug, her ex-husband, and Hulsey would rob people. If he knew someone had drugs, he would beat them up "Or stab 'em, or gut 'em, whatever." She first said she did not know if Hulsey had a gun and that he had never shown her a gun. She first said she was present for four or five such incidents in Sacramento. She then said she would stay at home and he would tell her about the robberies. Hulsey was the kind of person who might shoot somebody, and although she never saw him with a gun, Gonzalez (with whom both she and Hulsey lived) had a gun, and Hulsey knew where it was. She later said she was with Hulsey once in Sacramento and "took off running" when he pistol-whipped and robbed somebody.
The third interview began shortly after midnight on March 11, 2015, after the trio returned to Sacramento and defendant asked to talk to the detectives. Defendant said she and Hulsey had been junkies, she dated him for about six months, and he was abusive. They left Gonzalez's house in North Highlands to hitchhike, and Hulsey planned to rob anybody who picked them up. He showed her he had a gun. Rowe picked them up and she recognized the truck from the photograph the detectives had shown her before; she also recognized the way Rowe's body was lying in it, where Hulsey had pushed it down. When Rowe gave them a lift, Hulsey got in the middle and defendant was on the passenger's side, and after a couple of miles Hulsey drew his gun, ordered Rowe to pull over, and then shot him. She thought the plan was for Hulsey to rob Rowe, not kill him, because they needed money for drugs. Defendant thought Hulsey took Rowe's wallet, had him put his head down, shot him in the head, then pushed his body on the floorboards and had defendant drive the truck away. It was nighttime. The truck broke down and they left on foot. Defendant remembered climbing a fence by a Wonder Bread bakery. She said she had not thought there would be a shooting because she had done such things at least once before with Hulsey; in fact, when asked "how would those normally happen?" and whether hitchhiking was "your M.O.?" defendant nodded her head. But then she said there was only one prior time and she did not know if Hulsey had a gun on that occasion. She later said she was scared that Hulsey might kill her, and she left him about a month later. She had not told anybody about what happened. She identified a photograph of Hulsey. When the detectives left Myrtle Beach, defendant had told her current husband (Kenny) that she had been "involved in a murder."
In a March 15, 2015, jailhouse call between defendant and Kenny, defendant told him she had identified photographs for the officers, including one of Hulsey, adding: "And I said, 'Yeah, that's Tom Hulsey. He's the one that did the actual shooting. I was just there as an accomplice.' " (Italics added.) In a call to Kenny two days later, defendant wondered how the police could have a witness and speculated about potential witnesses' identities. The day after that, she told Kenny "they got my fingerprints, so I can't deny I wan't there. [Sic.] But, hopefully - I don't see how they can get me for murder."
Defense Psychologist
The defense called psychologist Dr. Eugene P. Roeder, who had examined and tested defendant, to testify about her mental state and dementia to try to explain her claimed trouble recalling what happened in 1986.
Closing Arguments
The jury was instructed both on premeditated murder and felony (robbery) murder and instructed on aider liability.
The prosecutor argued it did not matter whether the jury believed McKay overheard defendant admit killing Rowe, because defendant's statements to the detectives--corroborated in various respects--showed she knew a robbery was going to occur and therefore she was guilty of murder at least as an aider and abettor. If the jury believed McKay, and found defendant intentionally fired twice into the victim's head, or if the jury found defendant knew Hulsey was going to kill whoever he robbed, liability for premeditated murder could be found. If McKay's version was not believed, the jury could find defendant either shot Hulsey during a robbery committed by herself alone, or went to assist Hulsey with knowledge of his intent to rob when he shot the victim; either way she was guilty under the felony murder rule, the "easier" theory.
Defense counsel argued that even if defendant knew of Hulsey's plan to rob Rowe, she was not guilty unless she helped or encouraged him. Counsel argued repeatedly that defendant simply accompanied Hulsey out of fear, because he was abusive to her and had a gun. Hulsey may simply have forced her to act as "hitchhiking bait." After this incident defendant got away from Hulsey and gave up drugs. Counsel suggested defendant had been hampered in her ability to defend herself because of the inexplicable delay in the prosecution of this case. Counsel hammered on inconsistencies in McKay's unrecorded accounts of defendant's statements and pointed out that the People had not called certain witnesses McKay had claimed to have told the story to. Dr. Roeder's testimony confirmed defendant's claim that she had dementia, and counsel argued the detectives played on her mental weakness during the interviews.
In rebuttal the prosecutor conceded mere knowledge that Hulsey was going to rob someone was not enough to establish defendant's liability, but argued defendant either committed the robbery by herself and was directly liable, or she was helping Hulsey rob the victim, in which case she was liable as an aider. Despite her claimed dementia, she continued to lie about what happened, and did not mention Hulsey until the second interview. No substantial evidence of coercion by Hulsey was shown. McKay had no motive to make up her story and did her best to remember what she heard. The delay in prosecution did not change the evidence. Although Hulsey may have "escalated" the situation into a murder, the couple jointly planned to commit a robbery that day to feed their drug habit.
Verdicts, Posttrial Motions, and Sentencing
The jury found defendant guilty of first degree murder and found the personal firearm enhancement not true.
After denying defendant's motions to dismiss and for a new trial, the trial court sentenced her to the prescribed term of 25 years to life in prison. Defendant timely filed this appeal.
DISCUSSION
I
Dismissal for Pre-accusation Delay
Defendant contends the trial court should have granted her motion to dismiss the case for pre-accusation delay. We disagree.
A. Standard of Review
We have summarized the proper way to analyze such motions as follows:
"This process involves three steps: first, the defendant must establish prejudice; second, the burden then shifts to the prosecution to justify the delay; and third, the court must balance the harm against the justification. [Citation.] Prejudice is not presumed from delay which occurs before arrest or accusation, and unless the defendant establishes prejudice no justification need be shown. [Citation.]" (People v. Reeder (1984) 152 Cal.App.3d 900, 909-910; see In re Kevin F. (1989) 213 Cal.App.3d 178, 185.)
We review the trial court's factual findings with deference. (See People v. Jones (2013) 57 Cal.4th 899, 922 (Jones); People v. Cowan (2010) 50 Cal.4th 401, 431.)
B. Background
Before the preliminary hearing defendant lodged a motion to dismiss for pre-accusation delay that the People opposed. The magistrate deferred ruling to the trial judge who--with at least the implicit consent of the parties--deferred ruling until after the trial, at which time defendant supplemented her motion and the People filed a further opposition.
1. The Motion
The crime occurred and was discovered in April 1986. In September 1988 Sacramento officers learned from the Placerville Police Department of McKay's statements, and Sacramento detective Faust interviewed her. She told Faust she heard a woman named "Diane" admit killing a man in a truck on a Sacramento freeway, and that Diane was a ski lift operator, and was friends with Mike Anderson's girlfriend "Kim." "Kim" was identified and was interviewed in October 1988 and verified that she had worked at Donner Ski Ranch with "Diane" from 1986 to 1987. The ski ranch owner confirmed "Diane Salazar" worked there that season, with a particular date of birth and Social Security number, and also gave the date of birth of her husband, Doug Tuvey. John Silva, who McKay said had been present during the conversation, had died in August 1988. Anderson was not interviewed until 2014, and he was using a different name then.
Nothing else was done until October 2011, when an analysis of the fingerprints from the truck was requested. In June 2014, matches to "Diana Creech" and "Bobby Mulkey" were made. Mulkey told officers that Rowe had been a "crank dealer," and that Mulkey had worked on Rowe's truck.
Meanwhile, in 1988 defendant moved to South Carolina and in 1990 she married Kenny Creech. While living in South Carolina defendant had been employed, had owned a business, paid taxes, had a driver's license, "had no less than two dozen contacts with the courts and law enforcement," and went on SSI in 1998.
Detectives Dedonder and Jasperson spoke with "Kim" and Anderson in 2014, but neither could identify defendant's photograph. The detectives then flew to South Carolina and conducted the first interview of defendant in November 2014.
In July 2015 Hulsey was found. He admitted dating defendant for about a year, and claimed defendant shot Rowe on her own, with Gonzalez's gun.
Defendant's claim of prejudice--apart from her dementia--rested on the deaths of Silva (purportedly present during the conversation McKay heard), Gonzalez (defendant's "stepfather" and supposed owner of the gun used to kill Rowe), Rowe's parents (who supposedly suspected Rowe's girlfriend of involvement in his killing), and Larry Pepper (Rowe's friend who could corroborate Mulkey's claim that Rowe was a drug dealer). Defendant claimed multiple unspecified witnesses had died who might have been able to exculpate defendant, and generally that her family and friends may have been able to provide an alibi or other relevant information, now lost due to fading memories over time. No details of purportedly lost testimony were provided.
2. Opposition
The opposition pointed out that fingerprints from the truck had promptly been compared to the known prints of 25 possible suspects and were also run through both a Department of Justice automated system and a local fingerprint coding system, with no matches. The El Dorado District Attorney's office contacted the then-investigating officers in April 1987 to relay a report from Terry Ross (McKay's friend). In September 1988 McKay's account was documented, but with a notation that both McKay and Ross were "extremely reluctant" to provide more information.
By October 1988 officers had confirmed that "Diane Salazar" had worked at Donner Ski Ranch, and they had her Social Security number and birth date. Nothing more happened until October 2011, when a part-time cold case detective asked for the fingerprints to be evaluated using new databases and technology. This was not accomplished until June 2014. A bloody fingerprint from the truck was then matched to "Diana Creech," and FBI records showed she had previously been known as "Diane Salazar." More prints were reexamined and another one was found to match defendant. McKay identified a photograph of defendant and recounted her story of defendant saying (in 1986) that she shot someone in the head, in a broken-down truck by the side of a freeway in Sacramento. Mulkey and Anderson were found and questioned before defendant was questioned.
The opposition argued the defense had not demonstrated any specific prejudice, only speculation. After pointing out the lack of specificity of what any of the named missing witnesses might have said, the opposition noted that defendant's claim of her own memory loss was largely belied by the details of the crime she related to the detectives in her interviews.
Although there may have been some prosecutorial delay, the fingerprints could not initially be matched with then-available technology, and although defendant's former name came up in 1988, it was only when newer technology and resources became available that the trail was resumed.
3. Supplemental Motion
After trial, defendant emphasized evidence of her dementia and her impaired ability to defend herself. She reiterated her prior claims, speculating that Silva, Gonzalez, and others who had died, might have given favorable defense evidence. She speculated that various people might have corroborated her claim of abuse by Hulsey, or his or Rowe's involvement with drug dealing.
Dr. Roeder provided more detail for this motion than in his trial testimony. He had reviewed relevant documents (police report, medical records, and a case summary), and performed testing and a clinical interview. Defendant had been diagnosed with bipolar disorder, anxiety disorder and depression, as well as several physical ailments. She had dementia, including memory impairment, and it likely existed when she was interviewed by the detectives, and would only get worse.
4. Supplemental Opposition
The opposition disputed defendant's renewed claims of prejudice, again pointing out that they were speculative, and arguing even Dr. Roeder conceded his opinion about defendant's dementia did not mean she was incapable of defending herself. Further, Monica Gonzalez (Richard Gonzalez's daughter, who also lived with defendant and Hulsey in 1986) had been under subpoena but had not been called by the defense, suggesting she had nothing exculpatory to add to the case.
5. Hearing and Ruling on the Motion
At the hearing defense counsel emphasized that her ability to explore the degree of Hulsey's abuse of defendant had been hampered. She mentioned Hulsey's possible testimony but did not explain how he could have been compelled to testify. Silva might have given a different account of the alleged conversation in 1986 in South Lake Tahoe. The defense had contacted Monica Gonzalez, but she did not have a clear memory of events. Other possible witnesses, including unnamed workers at the Wonder Bread bakery, might have been interviewed had a timely prosecution been mounted. Counsel repeatedly referenced defendant's dementia.
The trial court found no substantial actual prejudice had been shown, only speculation. There was no intentional delay by the People, and when newer technology revealed a fingerprint match they proceeded diligently to investigate the case and bring defendant to trial. The court later said there was "some prejudice" but on balance it did not support dismissal.
C. Analysis
Much of defendant's briefing disregards the appropriate standard of review, which requires us to defer to the trial court's factual findings when supported by the evidence. (See Jones, supra, 57 Cal.4th at p. 922.) Viewed in the appropriate light, the basic flaw in defendant's claim of error on appeal is that her claim of prejudice "is wholly speculative. Our Supreme Court has repeatedly found speculative arguments inadequate to establish the actual prejudice required for delayed prosecution to constitute a due process violation. [Citations.]" (People v. Lewis (2015) 234 Cal.App.4th 203, 213.) This flows from the rule that prejudice is not presumed from pre-accusation delay. (See Jones, supra, 57 Cal.4th at p. 921; People v. Nelson (2008) 43 Cal.4th 1242, 1256 [26- year delay in murder case].) We generally review a trial court's ruling based on the facts and circumstances then known to the court. (See, e.g., People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hendrix (2013) 214 Cal.App.4th 216, 243.) At the time of the ruling herein, defendant's proffer of lost testimony that might have helped her was speculative.
Most of defendant's briefing focuses on her dementia, but the trial court was not required to find her dementia caused significant prejudice. First, defendant claims dementia was the reason she did not testify, but the court had no reason to find this true. Given her wildly inculpatory pre-trial admissions, it would have been a dangerous strategy for defendant to submit herself to cross-examination. Indeed, when the court confirmed with defendant on the record that she did not wish to testify, there was no suggestion her choice was due to dementia. We also observe that defendant's criminal record included North Carolina felonies apparently involving moral turpitude that may have been available for impeachment had she testified. Trial counsel asserted post-trial that defendant did not testify because of dementia but the court was not required to accept that representation.
Second, defendant claims dementia precluded her from assisting counsel such as by providing investigative leads. But even Dr. Roeder testified (during an in limine hearing) that defendant understood she was on trial for murder and showed no confusion about the legal process. Further, counsel was given time to consider whether to declare a doubt about defendant's competency (see § 1368) and chose not to do so. What exculpatory leads, if any, defendant might have been able to give earlier are speculative.
Third, defendant claims dementia prevented her from remembering the crime. But the lengthy recorded interviews--and to some extent the jailhouse calls with Kenny--showed defendant remembered quite a bit about the 1986 killing.
In response to the claim that the authorities were "negligent," we decline to second-guess the proper deployment of police and prosecutorial resources. (See People v. Nelson, supra, 43 Cal.4th at p. 1256 ["The police may have had some basis to suspect defendant of the crime shortly after it was committed in 1976. But law enforcement agencies did not fully solve this case until 2002, when a comparison of defendant's DNA with the crime scene evidence resulted in a match, i.e., until the cold hit showed that the evidence came from defendant. Only at that point did the prosecution believe it had sufficient evidence to charge defendant"].) "It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner." (Id. at p. 1257.) Given the iffy nature of McKay's story, which was not clearly linked to this crime, as well as her unwillingness to cooperate, and defendant's name change and removal to a distant state, it is not surprising that the lead was not connected sooner.
Finally, although defendant portrays her case as "close," we disagree. Defendant was convicted largely out of her own mouth. Her own story--viewed in the light favorable to the verdict--showed she was as an active participant in the hitchhiking robbery, something she conceded she had done before. Although she tried to backtrack some of her admissions, such efforts were weak, and if anything show she was sharp enough to realize she had revealed too much to the detectives. Her own extensive admissions established her liability for felony-murder.
On this record, we cannot say the trial court erred by denying the defense motion to dismiss based on pre-accusation delay.
II
IAC Regarding Evidence
Defendant contends trial counsel's failure to object to or try to have her "accomplice" statement redacted reflects substandard performance that caused prejudice. The referenced statement occurred during one jailhouse call when defendant told her husband that Hulsey was " 'the one that did the actual shooting. I was just there as an accomplice.' " (Italics added.)
To prevail on an IAC claim, a defendant must show her attorney acted below the standards of professional competence and there is a reasonable probability she would have obtained a more favorable result in the absence of counsel's failings. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) We have said "It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel." (People v. Constancio (1974) 42 Cal.App.3d 533, 546.)
Here, an objection would have been futile, because the evidence was an inculpatory admission, whether or not defendant knew the technical, legal, definition of "accomplice" under California law. It was highly probative and not prejudicial, although it was damaging to the defense. " 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.' " (People v. Zapien (1993) 4 Cal.4th 929, 958.)
Defendant's briefing contends the evidence should have been excluded as improper lay opinion evidence. But it was no such thing.
Defendant correctly points out the term "accomplice" has a specific definition in California criminal law. (See § 1111 ["one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given"].) But we find no set of circumstances under which any rational jury could possibly find defendant had been giving an opinion about her own guilt.
Accordingly, trial counsel did not perform inadequately by not raising this issue.
III
Admission of Prior Bad-Act Evidence
During her interviews with the detectives, summarized ante, defendant referred to her past drug usage and drug dealing, possibly committing four or five prior robberies with Hulsey, and the fact that the prison already had her DNA, from which the jury would most likely have inferred that she had been convicted of some prior crime. Defendant now contends the trial court should have redacted the interviews so as to exclude some of this evidence. We disagree that reversal is required.
Defendant raises four at times overlapping issues about the police interviews played for the jury, summarized as follows:
(1) Defendant told the officers that the prison had her DNA, which would leave the jury to speculate about the heinousness of her prior crime.
(2) Defendant made two admissions to dealing drugs, not merely using drugs. In one she said she was not making money; in the other, she identifies a photograph shown to her as a junkie she knew from when she "was dealing crystal meth" and possibly had sold drugs to her.
(3) At one point Jasperson said: "I know you got a little bit of a history with the law and so forth" in the course of suggesting she was not basically a bad person and therefore she should tell the officers what happened.
(4) The jury would infer defendant had been in prison, which was not relevant to any issue in the case and was prejudicial.
Before trial the attorneys understood defendant had made references to drug use, defense counsel objected to that evidence, and the prosecutor argued evidence of the need for money to buy drugs supplied a motive. The trial court agreed with the prosecutor. There were objections to some points, and some redactions were made, but for simplicity and to forestall the inevitable claims of IAC, we will address all the claims on the merits.
As for point (2), although defendant claims only evidence that she used drugs was relevant, we disagree. The fact she also sold drugs was also relevant and probative. It rationally could be inferred from the totality of her statements that she and Hulsey were opportunistic robbers who would gladly take either money or drugs or both from their victims. In these circumstances we see no prejudice in the jury's learning defendant sold drugs, as opposed to merely being a drug user or addict. Further, when considering admissibility as against an Evidence Code section 352 objection, we look to the comparatively inflammatory nature of the uncharged and charged evidence. (See People v. Harris (1998) 60 Cal.App.4th 727, 737-738.) As the Attorney General points out, it cannot be said that evidence of drug dealing nearly 30 years ago was comparatively inflammatory in the context of the charged murder.
Points (1), (3), and (4) largely overlap in that they all go to whether and to what extent the jury might have speculated about defendant's prior criminal record and what crime or crimes she may have committed that led to her having been in prison.
In our view, the challenged references were not prejudicial. Defendant was on trial for a robbery-murder where--in her own version--the victim was shot twice in the back of the head despite apparently having been cooperative. Again, this evidence was not comparatively inflammatory. Further, defendant at one point admitted being present at four or five robberies committed by Hulsey, whom she knew would beat up or stab people, also very serious crimes. There is no reason to think the jury would infer that defendant's criminal record was heinous from glancing comments about prison and history with the law, and want to convict her for that reason.
The evidence was not time consuming or confusing, inasmuch as it consisted of stray references in lengthy otherwise admissible interviews. There is no claim on appeal that the prosecutor ever tried to use the evidence to suggest that defendant was a person of generally bad character, that is, because she had been in prison before, or had sold drugs before, that she was more likely to be involved with this crime. Indeed, as explained above, the defense theory was that Hulsey coerced defendant into going along with him, which she did out of fear, without knowing what he was going to do. Evidence suggesting the couple was dealing drugs together was relevant to counter this claim.
Nor would any of this have made a difference. As the prosecutor argued, and the Attorney General emphasizes, defendant essentially talked herself into liability for felony-murder. That she may have sold drugs, had a criminal history, and had been in prison before would not have tipped the scales. Accordingly, if further redactions should have been made, no miscarriage of justice occurred. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).)
The Attorney General argues the jury was able to put aside any possible improper inferences from the bad-act evidence by returning a not true finding on the firearm enhancement. This is one plausible inference. (But see fn. 2, ante.)
IV
IAC Regarding Instructions
Defendant contends trial counsel was ineffective because she did not request a limiting instruction on prior crimes evidence.
Relying both on the evidence of prior robberies she admitted knowing about and at one point admitted being present for, as well as her drug dealing, history with the law, and prison sentence, defendant contends trial counsel was ineffective in not seeking an instruction that would preclude the jury from using any of that evidence for propensity purposes. (See CALCRIM No. 375.) We disagree.
There is no claim that the prosecutor argued the jury should infer defendant was a person of bad character and for that reason would be more likely to have directly committed or at least participated in the charged offense. The prosecutor argued defendant's admissions about committing or at least having knowledge of prior robberies showed she knew what Hulsey was going to do on this occasion, which was a permissible inference to draw. (Evid. Code, § 1101, subd. (b).) An instruction to preclude the possibility that the jury might draw an impermissible inference was not required absent request. (See id., § 355; People v. Murtishaw (2011) 51 Cal.4th 574, 590; People v. Collie (1981) 30 Cal.3d 43, 63-64.)
We reject the Attorney General's claim that there was "no evidence" defendant committed other robberies. One plausible interpretation of the statements at her third interview is that she committed other robberies with Hulsey.
Although defendant outlines concerns about propensity evidence, none of the evidence was used for such purposes. Accordingly, it was within counsel's tactical discretion whether to ask for a limiting instruction. (See, e.g., People v. Benavides (2005) 35 Cal.4th 69, 94; People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) Because of defendant's waffling statements about committing prior robberies with Hulsey, we agree with the Attorney General that there was a plausible rational tactical decision not to seek such an instruction: It might have led the jury to draw the most inculpating interpretation of her statements, i.e., that defendant did in fact commit one or more robberies. And as for the other evidence (the stray references in her statements to having a "history" with the law, having been in prison, and having sold drugs in the distant past), defense counsel could rationally conclude the issues could be addressed through argument, because the prosecutor was not using those statements to show defendant had a propensity towards criminality, and the jury would therefore not use them for such an improper purpose. Because the record does not explain counsel's reasoning, defendant's remedy, if any, lies in habeas corpus. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Nor, for the reasons stated above, do we see any prejudice on this record.
Counsel claims the issues in Parts II-IV created cumulative prejudice, but he largely argues about the same evidence in different ways. We find no prejudice.
V
Reopening Jury Selection
Defendant contends the trial court lacked authority to reopen jury selection after the jury was sworn, and the Attorney General concedes the point. The parties disagree about that effect of the purported mistake, and defense counsel's explicit acquiescence in the procedure used by the court. We find any error was not prejudicial and was invited by defense counsel.
A. Background
After exercising some peremptory challenges, the prosecutor and defense counsel passed and the clerk swore in the 12 jurors. The trial court declared a recess before beginning the selection of alternate jurors. Then, an unexpected problem arose. Outside the presence of the rest of the jury, one of the jurors told the court he had seen the word "Crazy" tattooed on defendant's hand, this reminded him of "biker people" he had known who were in and out of prison and were very violent, and he could not be fair. As the juror began to elaborate, the following occurred:
"THE COURT: Hold on just a minute, Mr. [redacted].
"Let me ask counsel, without further delay, do you want to simply stipulate on this matter and then reopen selection?
"MS. PARISI [defense counsel]: Yes.
"MS. BROWN [prosecutor]: Yes.
"THE COURT: We'll stipulate to excuse you for cause, Mr. [redacted].
"PROSPECTIVE JUROR: I apologize.
"THE COURT: I accept the apology. It's certainly important that you did bring it to our attention."
When the jury returned, the trial court told the jurors that one of their ranks had to be excused and jury selection would resume. The People exercised a challenge to one prospective juror, the defense exercised a challenge to another, both sides passed on the third potential replacement, then the newly reconstituted panel was sworn. Alternate jurors were then selected in due course.
B. Analysis
The Attorney General concedes the trial court erred, but argues no prejudice resulted. (RB 57) We agree with the latter observation, and need not address the former, except to explain why the trial court did not lack jurisdiction to do what it did.
In People v. Cottle (2006) 39 Cal.4th 246 (Cottle), after the 12 jurors were sworn and the parties were selecting alternates, one of the sworn jurors belatedly revealed views that raised a question about his ability to be fair, but did not support the defense motion to remove him for cause. (Id. at pp. 250-253.) The defense then moved to reopen jury selection to exercise a reserved peremptory challenge, but the court denied the motion on the ground that the jury had already been sworn. (Id. at p. 253.) After reviewing the various statutes applicable to jury selection, our Supreme Court affirmed the conviction, finding no statutory basis for the trial court in that case to reopen jury selection to permit peremptory challenges. (Cottle, supra, 39 Cal.4th at pp. 254-259.) Cottle repeatedly implies and at least once states a trial court "lacks authority" to reopen jury selection once the jury is sworn. (Id. at pp. 255-258.) Based on a perfunctory citation to these passages, the Attorney General concedes error occurred. But Cottle also emphasized that:
"This conclusion does not leave the court without recourse should a juror become unable to serve. Code of Civil Procedure sections 233 and 234 and Penal Code section 1089 provide for the removal of a juror upon a showing of good cause." (Cottle, supra, 39 Cal.4th at p. 259, italics added.)
Thus, Cottle drew a clear distinction between challenges for cause and peremptory challenges; the challenges at issue in Cottle were peremptory challenges but the stipulated challenge here was for cause. Code of Civil Procedure section 233 provides in part that if upon good cause a juror is found not to be able to perform her or his duty, an alternate juror may be selected, "or if there is no alternate juror . . . the jury shall be discharged and a new jury then or afterwards impaneled, and the cause may again be tried. Alternatively, with the consent of all parties, . . . another juror may be sworn and the trial begin anew." (Italics added.) That is what happened here: all parties consented to the juror's dismissal for cause, and another juror was sworn.
Defendant contends that because Cottle states a trial court "lacks authority" to reopen jury selection after it is sworn, the trial court in this case committed a nonforfeitable and nonwaivable jurisdictional error. We do not agree. First, as explained above, Cottle acknowledged exceptions and this case fits within one. Second, if any error occurred, it was a violation of state-law jury selection statutes. Cottle did not hold that such an error would either impair a defendant's right to a jury trial or deprive the trial court of jurisdiction in the fundamental sense. (Cf. Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287-288; 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 1.) Because any error would be one of state-law procedure, it would be subject to state-law harmless error analysis. (Cal. Const., art. VI, § 13; § 1404; see People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Rambaud (1926) 78 Cal.App. 685, 692 ["The order of selecting a juror is a matter of procedure and . . . the state Constitution specifies that no error as to any matter of procedure shall be held sufficient to set aside a verdict or order a new trial, unless it appears from the record that the error complained of has caused a miscarriage of justice"].)
Defendant instead claims the error is reversible per se based on the jurisdictional argument we have just rejected. We disagree, and absent an explicit argument how the claimed mistake caused prejudice, the contention of error fails. (See People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11; People v. Coley (1997) 52 Cal.App.4th 964, 972.)
Moreover, what happened--whether error or not--was expedient. Defense counsel could rationally have concluded that the defendant would not be prejudiced, and reopening jury selection would simply streamline the trial process, in addition to allowing defendant to exercise additional peremptory challenges. This means that we can--and will--apply the invited error rule. (See 9 Witkin, Cal. Procedure, supra, Appeal, §§ 394- 395.) Not only did defense counsel not object, defense counsel stipulated to the procedure used. Appellate counsel cannot take that stipulation back; that would be unfair to the trial court and encourage gamesmanship. (See People v. Saunders (1993) 5 Cal.4th 580, 589-592 [applying rule where trial court discharged jury before it determined truth of prior conviction]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [quoting Witkin with approval].)
As stated by our Supreme Court in a case involving a jury selection error:
"While the parties are not free to waive, and the court is not free to forego, compliance with the statutory procedures which are designed to further the policy of random [jury] selection, equally important policies mandate that criminal convictions not be overturned on the basis of irregularities in jury selection to which the defendant did not object or in which he has acquiesced." (People v. Visciotti (1992) 2 Cal.4th 1, 38.)
Accordingly, we also find that any error was invited.
VI
Sentencing Error
Defendant contends, and the Attorney General concedes, that in two respects the sentence is not authorized. We agree, but disagree with the Attorney General that remand is required.
A. Parole Revocation Restitution Fine
The trial court imposed and stayed a $10,000 parole revocation restitution fine. This fine is authorized by section 1202.45, a statute not operative until years after the murder in this case. (See Stats. 1995, ch. 313, §§ 6, 24.) As argued by defendant and conceded by the Attorney General, imposing this fine would violate ex post facto principles. (See People v. Callejas (2000) 85 Cal.App.4th 667, 677-678.) We modify the judgment to strike the fine.
B. Presentence Conduct Credits
Defendant was in custody on this case from March 9, 2015, until the date of sentencing, December 8, 2016, which the trial court calculated as 641 days of actual credit, the number awarded by the trial court and not disputed by the parties. However, the trial court did not award any presentence conduct credit. This was error.
Section 4019 permits jail inmates to earn conduct credit prior to being sentenced by performing labor (id., subd. (b)) or by good behavior (id., subd. (c)). The purpose of such credits "is to foster constructive behavior" while a person is incarcerated. (People v. Lara (2012) 54 Cal.4th 896, 906; see People v. Brown (2012) 54 Cal.4th 314, 317.) The probation report did not indicate any refusal to work or poor behavior by defendant that justified a reduction or denial of credits. Instead, the probation report recommended (and the trial court implicitly agreed) that no conduct credits be awarded because of section 2933.2, a statute that denies conduct credits to people convicted of murder. That statute became effective on June 3, 1998, after the murder herein. (See People v. Chism (2014) 58 Cal.4th 1266, 1336; People v. Ly (2001) 89 Cal.App.4th 44, 47.) As the Attorney General concedes, by its terms that statute applies only to murders "committed on or after the date on which this section becomes operative." (§ 2933.2, subd. (d).) Thus, that statute does not justify denial of conduct credits here.
Defendant also argues section 2933.1, limiting violent felons to a 15 percent credit accrual, cannot be applied to her because it was adopted after the commission of this murder, and by its terms it does not apply to crimes committed before its operative date, September 21, 1994. (See § 2933.1, subd. (d); People v. Ly, supra, 89 Cal.App.4th at p. 47.) The Attorney General does not disagree.
The conduct credit scheme has undergone many changes over time. (See People v. Garcia (2012) 209 Cal.App.4th 530, 534-540 [describing various statutory changes].) Neither party argues that any of the various post-crime schemes apply, and those schemes either apply to crimes committed after their effective dates or exclude serious felons (including murderers), or both.
Defendant calculates the proper conduct credits as 320 days, using our venerable Bobb-Smith "two for four" formula. (See People v. Bobb (1989) 207 Cal.App.3d 88, 97-98 ; People v. Smith (1989) 211 Cal.App.3d 523, 527.) The Attorney General agrees that formula applies, but without clear explanation suggests we order a remand.
Disapproved on another point by People v. Barton (1995) 12 Cal.4th 186, 198, fn. 7.
Because there is no dispute about the math we see no reason not to modify the award and save the parties and the trial court the time and expense of a new sentencing hearing. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1473 ["The futility and expense of such a course militates against it"].) We modify the judgment to award defendant 320 days of presentence conduct credit.
The probation report states defendant committed no "major write ups" while in custody. Section 4019, subdivisions (b) and (c) state conduct credits shall be awarded "unless it appears by the record" that an inmate refused labor or misbehaved. The record here does not show any reason to deny conduct credits. If the Attorney General believes the issue was not fully considered by the probation officer or trial court because of the mistake about defendant's eligibility for conduct credits, and the issue justifies the expense to the taxpayer of another sentencing hearing (cf. People v. Alford, supra, 180 Cal.App.4th at p. 1473 ), the point may be raised in a timely rehearing petition containing a persuasive explanation for not raising this issue earlier.
DISPOSITION
The judgment is affirmed as modified. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a certified copy of an amended abstract of judgment reflecting the modifications.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Murray, J.