Opinion
A145856
04-10-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLES EDWARD LUCKETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C171185)
Following a match of his DNA and a "cold case" investigation by the Oakland Police Department, defendant Charles Edward Luckett was charged and convicted of the 1993 murder of the manager of a local Sizzler restaurant. On appeal, defendant's primary argument is that the court erred in denying his motion to dismiss, or in the alternative exclude key DNA evidence, based on the police department's loss of additional, untested physical evidence collected at the crime scene and the lengthy pre-accusation delay. We find no basis for reversal on these or any of the additional arguments presented on appeal. Defendant has correctly identified two clerical errors in the abstract of judgement so that we shall affirm the judgment and remand for modification of the abstract of judgment.
Factual and Procedural History
On March 22, 2013, defendant was charged with a single count of murder. (Pen. Code, § 187, subd. (a).) The information alleged that the murder occurred during an attempted robbery in July 1993 (§ 190.2, subd. (a)(17)(A)), and that defendant used a firearm in the commission of the offense (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)).
All statutory references are to the Penal Code unless otherwise noted.
The following evidence was presented at trial:
Carson Smith was working as a waiter at a Sizzler restaurant the night of July 16, 1993. He testified that two African-American men came into the restaurant and ordered hamburgers with french fries. Because the restaurant had run out of french fries, he served them a baked potato instead. After the men had been there for about an hour and a half, one of the men complained that there was a hair in the hamburger dressing and demanded to see the manager. When the manager came to the table, one of the men called to Smith. As he approached, the man lifted his shirt and displayed a gun. Smith ran from the restaurant and called 911.
Rodney Williams, who was eating at the restaurant, heard the men demanding to speak to the manager. Shortly after the manager went to their table, the men stood up and one yelled, "This is a robbery. . . . Everybody get down." The other man was walking with his arm around the manager's neck toward the front of restaurant. One of the men said, "Open the safe, open the safe." The other man said, "Hurry it up" and then "Okay, well, just bust him." Williams then heard three gun shots. Other customers in the restaurant provided testimony that was essentially consistent with Williams's testimony, the primary discrepancy being that one customer testified he thought two other men might also have been involved.
Police were dispatched to the restaurant around 10:48 p.m. Upon their arrival, they found customers under tables in the dining area and the manager lying face down on the floor in front of the safe. The manager was unresponsive with three apparent bullet wounds to his back and leg.
The suspects were described in the police report. One suspect was described as a Black male, "30's to 40's, five-seven, 170, sideburns and full beard, nappy hair, fluffy, light blue jacket, light blue jeans." The other suspect was described as a Black male "late 30's to early 40's five-nine to six feet, 170 pounds, dark complexion, light mustache, wearing a hat, sunglasses and a zippered jacket unknown colors, and armed with a nine-millimeter .45-caliber chromed gun."
Shortly after arriving, the police set up a perimeter to detain anyone who matched the description of the suspects. The police took Smith to a location where he identified a man as having been involved in the crime. Other witnesses were brought to various locations where suspects had been detained but they could not identify any of them as having been involved in the crime. Customers who testified at trial confirmed that they were brought to various locations to see if they could identify anyone, but they were unable to do so.
That man, Harvey Brumfield, was arrested and charged with the murder but the case was later dismissed based on a lack of evidence. Prior to trial in the present case, the prosecution's motion to exclude reference to the prosecutorial proceedings against Brumfield was granted. As set forth above, the jury was allowed to hear that a man other than defendant was stopped near the scene and identified by Smith.
During the course of the investigation, a police inspector instructed an evidence technician to collect all the objects on the table at which the men sat. Among other things, the technician collected a cigarette butt from inside a piece of aluminum foil which contained part of a baked potato and three additional cigarette butts from a small dish.
In 2012, the Oakland Police Department reopened the investigation into the murder. The police sent a photo array to Florida, where Smith was then living. Smith was shown the six photos furnished by Oakland police and identified a photo of defendant as "maybe" having been the other man involved in the murder. At trial, Smith identified defendant as one of the two men involved in the robbery. An additional employee and other customers who testified at trial could not identify defendant.
Although not before the jury, the record shows that the police requested DNA testing of the cigarette butts in October 2001 but that the testing was not completed and entered into CODIS (Combined DNA Index System) until December 23, 2005. In November 2007, the Department of Justice gave written notice to the Oakland Police Department that the sample from the cigarette butt found with the baked potato matched defendant's DNA. Based on this notice, the Oakland Police Department reopened its investigation into the homicide.
In the course of the investigation, defendant was interviewed and police obtained a new sample of his DNA. Portions of defendant's interview with the police were played for the jury. In the interview, defendant told the officers that he was "kind of homeless" and worked odd jobs. He admitted that he used to drink an "awful lot" and had been convicted a few times of driving under the influence. He used to smoke cigarettes but stopped because they are too expensive. He grew up in Oakland, but moved to Compton in 1976. He had been "back and forth" between the two cities since the 1990s. He had three brothers, Joseph, Cris, Larry, but Joe and Cris had passed away. He said that none of them were twins, but "[w]e all look alike."
When the police informed him that the interview was about a shooting that occurred in 1993, he said he believed he was in Long Beach or Compton working security at the time. He explained that he moved to Compton to be with his wife shortly after being released from jail for driving under the influence in 1992. He did not think he came back to Oakland from 1993 until after 2000, although he recalled coming to Oakland for his brother's funeral at some point. Defendant could not recall hearing about a 1993 robbery at the Sizzler where "the manager ended up getting shot." He claimed to have never witnessed a shooting in his life and thought he would probably remember hearing about a murder.
A forensic analyst from the Oakland Police Department crime laboratory testified that in 2004 she conducted DNA analysis on a cigarette butt recovered from the foil wrapped potato found on the table where the suspects had been seated. In her opinion, the DNA she found on the butt came from a single source. She compared the 2004 profile to defendant's 2012 profile and concluded that defendant could not be excluded as the source of the DNA. In her opinion, the chance that someone other than defendant would have contributed to the DNA she found on the cigarette butt would be one in 9.7 trillion unrelated persons in the general population of Caucasians, African-Americans or Southwest Hispanics. The three other cigarette butts that had been taken into evidence at the scene were missing and had not been processed.
Defendant testified at trial. Consistent with his police interview, he testified that he was living and working in Long Beach at the time of the shooting. He denied being in Oakland on July 16, 1993, and testified that he had not been there since August 1991 after being released from jail. The next time he was in Oakland was on December 10, 1995, for his brother's funeral. He testified that he had never shot anyone or was with anyone who did. He claimed that at the time, he did not smoke and he had no idea how his DNA got on the cigarette butt. Sometimes, however, he would put a cigarette in his mouth. He explained that "sitting around drinking, I used — I chew on them, put them in my mouth or something, but I didn't smoke, especially not then" because his wife did not like him to smoke.
Defendant's forensic expert also analyzed the cigarette butt found at the restaurant and agreed that defendant could be a contributor. Unlike the Oakland Police Department, however, his results indicated "that the DNA on the cigarette paper is a mixture from at least two people," not just one contributor.
Defendant's brother Larry testified that he recalled defendant being in a local jail for a while in 1991, then leaving Oakland for Southern California where their sister Joyce lived. Defendant lived in Compton or Long Beach with his wife and children. He did not see defendant between 1991 and their brother's funeral in 1995 or 1996. Defendant's sister Joyce testified that defendant was living in Los Angeles in 1993. She remembered that he would stay with her at times when he was separated from his wife. She testified that he did security work and, at times, managed or maintained apartment buildings. She did not recall July 16, 1993 specifically, but testified that she usually celebrated the Fourth of July holiday with defendant and his children and, to the best of her knowledge, they did this in 1993 and defendant was there.
The jury found defendant guilty of first degree murder and the court imposed a term of life without parole (LWOP) plus an additional five-year term for the firearm enhancement. Defendant timely filed a notice of appeal.
Discussion
1. The court did not err in denying defendant's motion to dismiss, exclude DNA evidence, or give cautionary instructions based on the police department's loss of evidence.
Defendant claims that the police department's loss of the additional three cigarette butts collected at the scene violated his right to due process under the federal and state Constitutions. "The relevant due process principles have been discussed many times before. [Citations.] Law enforcement agencies must preserve evidence only if it possesses exculpatory value 'apparent before [it] was destroyed,' and not obtainable 'by other reasonably available means.' [Citations.] The state's responsibility is further limited when the defendant challenges the failure to preserve evidence 'of which no more can be said than that it could have been subjected to tests' that might have helped the defense. [Citation.] In such a case, unless the defendant can show 'bad faith' by the police, failure to preserve 'potentially useful evidence' does not violate his due process rights." (People v. DePriest (2007) 42 Cal.4th 1, 41-42.)
Prior to trial, defendant moved to dismiss the information, exclude the DNA evidence or, alternatively, give appropriate limiting instructions based on the loss of the three cigarette butts. At a hearing on the motion, a supervisor from the police department's evidence unit testified that the envelope that was supposed to contain the cigarette butts was not in the storage container in which it was deposited. Instead, there was a post-it note where the evidence should have been that was dated October 2001 and written in the handwriting of a now retired supervisor. The note stated that she was unable to locate the envelope, and that she presumed it had been destroyed by another employee on January 1, 2001. The witness made an "educated guess" based on the post-it note and other records that the cigarette butts had been destroyed when an employee either mistook the case number for that of another case with a similar number, or took the wrong envelope from the evidence locker. She could not be sure, however, that the evidence was destroyed because there were 59 freezers containing evidence and no one had looked in all of freezers for the missing envelope. The trial court denied defendant's motion on the basis that the cigarette butts had no apparent exculpatory value at the time they were destroyed and there had been no showing of bad faith by the police department.
Defendant contends that contrary to the trial court's conclusion, the "material exculpatory significance" of the missing cigarette butts was apparent before their testing. He argues, "Unless one person smoked all four different butts (some unfiltered and found in different makeshift 'ashtrays'), it should have been apparent that all the butts were exculpatory (based on DNA or indeed blood type inclusion or exclusion). Unless the waiter's dubious (and disputed) claim only two people ever sat at that table (or that more than one might have smoked) is the last word, forensic confirmation of anyone besides one identified robber at that table was critical to identify (and exclude) the second robber in a forensics case like this. Even before the advent of routine DNA testing, the butts were kept if only to exclude or include blood types; by 2001, the DNA-significance of these items to confirm multiple smokers was even stronger and more apparent. Unless it is assumed one person smoked the disparate butts, any confirmation of a second (or third, etc.) smoker was significant to rebut claims this was just one smoker or just two people eating and acting alone in tandem the entire night; this, in turn, served to exculpate any supposed second robber."
Because defendant denied being present in the Oakland restaurant at the time of the crime, the significance of another person's DNA on the missing cigarette butts is highly doubtful. Moreover, defendant's argument makes clear that at the time the cigarette butts were destroyed, any exculpatory value was merely a potential, subject to confirmation by testing. Accordingly, this evidence falls squarely within the rule requiring bad faith before a violation of defendant's due process rights can be found.
Defendant contends the record does not support the trial court's finding that there was no bad faith. (People v. Alvarez (2014) 229 Cal.App.4th 761, 776 ["We review the trial court's finding on the existence or nonexistence of bad faith under the substantial evidence standard."].) Defendant argues, "Active animus or not, destruction of this single set of items (but not others including the lone remaining butt) from a cold-case based on (suspected) transposing of case numbers is inexcusable, past the point of mere negligence or gross recklessness." We disagree. Nothing in the record suggests the that the police knew or even could have suspected at the time the cigarettes were lost or destroyed that testing might have exculpated defendant. Substantial evidence undoubtedly supports the trial court's finding that the destruction of the evidence was entirely accidental.
Finally, defendant suggests that the police department's failure to collect several additional items (plates, water glasses, silverware) also violated his dues process rights. The police did, however, collect some additional items and these items were tested but disclosed no fingerprints. Again, given the lack of apparent exculpatory value, defendant was required to but cannot show bad faith by the police.
2. The court did not err in denying defendant's motion to dismiss on the ground of excessive pre-accusation delay.
Prior to trial, defendant filed a motion to dismiss due to excessive pre-accusation delay. According to his motion, there were three separate delays: (1) Four years between October 2001 when the police department requested DNA analysis and December 23, 2005, when the results were entered into CODIS; (2) Two years between the point at which the DNA results were entered into CODIS and September 23, 2007, when the Department of Justice searched CODIS and notified the police department of the match; and (3) Five years between the time the police department was given notice until defendant's arrest.
At the hearing on defendant's motion, the supervisor of the police department's crime laboratory testified that in 2001 there were 174 requests for DNA analysis, and one examiner. In 2002, there was a backlog of 183 requests and an average of 1.6 examiners. In 2003, there was a backlog of 135 requests and an average of 1.3 examiners. In 2004, there was a backlog of 102 requests and an average of 2.5 examiners. The supervisor testified that during that time she could get through a fairly extensive case in three or four weeks, if she had nothing else to do. The trial court relied on this evidence in finding that given the back log and crime lab priorities, the government was not "at fault" for the approximately four-year delay in testing the sample.
A police captain also testified that in 2007 there were 127 homicides in Oakland and there were 10 investigators. The cold case unit had one investigator and a part time annuitant. The court relied on this testimony in finding that the five years between notification and defendant's arrest was properly explained by the lack of resources devoted to cold cases.
Although no explanation was given for the two-year delay that resulted within the Department of Justice, the court concluded that it cannot "presume there's anybody's fault" for that.
Balancing the reasonable explanation for the delays against what the court considered a limited showing of prejudice, the court denied the motion. The court explained that any delay in filing charges against defendant did not contribute to the loss of the additional cigarette evidence because the cigarettes were apparently destroyed before DNA testing was requested in 2001. The court also observed that while dimming memories is inherent in any case in which there are delays, there was no basis to conclude that fading memories in this case was overly prejudicial to defendant.
In People v. Catlin (2001) 26 Cal.4th 81, 107, the court held that a delay in prosecution that "occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.] A claim based upon the federal Constitution requires a showing that the delay was undertaken to gain a tactical advantage over the defendant."
We review the trial court's ruling on a motion to dismiss based on pre-accusation delay for abuse of discretion, deferring to any underlying factual findings made by the court so long as they are supported by substantial evidence. (People v. Cowan (2010) 50 Cal.4th 401, 431.) Whether a delay was prejudicial to the defendant is a question of fact. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912.)
Substantial evidence supports the court's finding that the pre-accusation delays did not prejudice defendant. Defendant argues he was prejudiced by the police department's delay in requesting DNA testing on the cigarette evidence because DNA testing was available and known to law enforcement long before the evidence was destroyed in January 2001. Defendant, however, did not identify a delay in requesting DNA testing as a basis for his motion and, as a result, the record contains no testimony regarding what type of testing was available prior to October 2001 or why the police department did not request testing before then. Any argument that the police department should have made an earlier request for testing is purely speculative.
Defendant argues further that the dimmed memories and lost witnesses are unusually significant in a case. He notes that most of the police witnesses did not recall this case, that some family members have died, and that he and other family members were unable to remember the details regarding when family and friends visited in Compton and Oakland. He argues further that he "lost customer and employee memories on key points given the limited new forensics, like who and how many persons ever sat, ate, or smoked at the robbers' table. He also lost the ability to examine the now deceased criminalist who originally collected the one remaining cigarette butt that ended up in a stained napkin, and somehow managed not to be thrown out like the other butts." As the trial court observed, however, defendant's showing of prejudice is largely speculative and based on what a witness might have said. In contrast, the court found that there was "ample explanation for the delay, and when you consider . . . that versus whatever prejudice has or hasn't been established, . . . the result is that there hasn't been a showing that would justify granting the motion."
We find no abuse of discretion in the court's conclusion. It appears from the record that the delay was explainable under the circumstances; certainly there is no evidence that the delay was purposeful or intended to gain an advantage in the criminal proceedings. (People v. Nelson (2008) 43 Cal.4th 1242, 1255.) Moreover, because other family members were still available to testify for the defense, the showing of prejudice was weak. The trial court did not abuse its discretion.
3. The court did not err in precluding any mention that Cris Luckett had been detained by police in the vicinity of the restaurant following the crime.
A police report for the incident includes the following comment: "I responded to 28th St. and Summit for a perimeter. After approx. 2 min. I detained Luckett, Cris (MIB/30APR52 - 926 E. 17th St. Apt. 1) who was walking E/B on 28th St. He was wearing a [white shirt] and dirty dark pants. After several witnesses advised negative on a field lineup I released Luckett." Before trial, the court granted the prosecution's motion in limine to exclude any mention of a Cris Luckett having been stopped by police. The trial court found that the evidence was inadmissible to show third-party culpability under People v. Hall (1986) 41 Cal.3d 826 (Hall) and not relevant to any other purpose.
On appeal, defendant contends the police report was sufficient to warrant its admission and a third-party culpability instruction under Hall. Third-party culpability evidence is admissible if it is "capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, 41 Cal.3d at p. 833.) In this case, there is no direct or circumstantial evidence linking Cris Luckett to the commission of the crime. At most, the report is some evidence that Cris was in the area and thus, had the opportunity to commit the crime. Accordingly, the court did not err in finding no basis for admission of the report under Hall.
The Attorney General argues that because the police report does not establish how the reporting officer determined the man's identity the report is hearsay and cannot be admitted to establish that Cris Luckett was in fact stopped by police that night. Because the report is insufficient to establish third-party culpability under Hall, we need not resolve the hearsay question.
Defendant argues, alternatively, that even if the report was insufficient to show Cris committed the crime, evidence that Cris, or someone who knew him, was in the area that night is relevant because it provided an explanation for how his DNA might have been on the cigarette butt found in the restaurant. At the preliminary hearing he argued that there was a "logical explanation" for how his DNA ended up on the cigarette in the restaurant; he shared a cigarette with his brother or his brother took the cigarette from him because he no longer smokes. On appeal he clarifies that the relevance of the evidence is not dependent on proof that it was actually Cris who was stopped that night. Rather, he suggests the evidence is relevant because "The presence of anyone in the area who might visit/drink with appellant (in L.A. or otherwise)—especially his brother or associates/friends—was key to offer a significant innocent explanation for this minute DNA." In other words, at some unidentified time prior to that night, the cigarette was passed from defendant to either Cris, or someone who knew Cris, who then brought and smoked the cigarette at the restaurant.
We question whether this argument was properly preserved for appeal. Although argued at the preliminary hearing, no similar argument appears to have been made to the trial judge. Rather, defendant argued that the evidence was admissible to establish that defendant was not observed at or near the scene despite the perimeter set by the police. Defense counsel argued, "I have no information that Cris Luckett committed this crime that Mr. Charles Luckett is charged with. I have no information, but I do know he was in the area. I do know that other individuals were in the area. And the relevance of that information bears strongly upon Mr. Luckett, Charles Luckett's innocence, because he was not there. He was not found. And I think the value of the evidence is to demonstrate that in a very short time after the crime was committed, officers secured an area and they did obtain . . . eight people altogether." The court reasonably rejected this argument, explaining that evidence of the identity of the people stopped is not relevant to establish that defendant was not stopped or identified.
We need not resolve this argument on the basis of waiver, however, as defendant's explanation for how his DNA ended up in the restaurant was too speculative to warrant putting before the jury. (People v. Morrison (2004) 34 Cal.4th 698, 711 ["Evidence is irrelevant . . . if it leads only to speculative inferences."]; People v. Babbitt (1988) 45 Cal.3d 660, 684 [The "exclusion of evidence that produces only speculative inferences is not an abuse of discretion."].) Likewise, the exclusion of irrelevant evidence does not implicate a defendant's due process right to present a defense. (Babbitt, supra, at p. 685 ["[B]ecause defendant's evidence failed to meet the threshold requirement of relevance, its exclusion . . . did not implicate any due process concerns."].)
Here, defendant did not make an offer of proof sufficient to explain with any reasonable certainty how the cigarette may have travelled from Compton to Oakland. Given the significant evidentiary gaps in the proffered defense and its general lack of plausibility, any error in the exclusion of this evidence was harmless.
Defendant also argues the exclusion of this evidence was prejudicial because it was "key to rebut a troubling eyewitness courtroom identification, if only to show another man (whether Cris, appellant using a false name, according to the prosecutor, or someone else associated with them) was stopped but not identified by several people." This argument was not raised below. Again, however, we need not rely on waiver as the argument is without merit.
Assuming that the man stopped was neither Cris nor defendant but someone "associated" with them, that evidence is completely irrelevant to Smith's in-court identification. Assuming it was defendant who was stopped that night but not identified, that evidence would be relevant to the in-court identification, but it would also be so damaging to defendant's case that it would be impossible to conclude that defendant was prejudiced by its exclusion. Finally, if the man stopped was Cris, the evidence would be relevant and exculpatory only if defendant could establish that he and his brother looked sufficiently alike that one could reasonably be mistaken for the other. Defendant did not attempt to make such a showing; no offer of proof was made in that regard. Accordingly, there was no error in the exclusion of all references to Cris Luckett being stopped by the police the night of the crime.
4. The court did not err with respect to the admission of defendant's statements to police.
Defendant contends the court erred by redacting from the interview recording played to the jury all references to Cris Luckett and, alternatively, that if the redaction was proper, by failing to further redact the officer's comment that defendant "fit the description" of one of the robbers. Specifically, the court redacted the following portion of his interrogation: "Q: . . . The officers respond to the shooting . . . , and it's looking like your brother Cris—this is Cris right? That's your brother right? [¶] A: Yeah. [¶] Q: Well, it's looking like Cris was stopped nearby, okay? . . . [S]o you know, looking at the descriptions given, you know, of the suspects in this particular shooting, both you and Cris seem to fit the description of these two suspects. . . . It's like I know I looked through his records, all right? I know he had done . . . some time for robbery . . . [¶] . . . [b]ut he was out at that time too . . . . [¶] . . . [¶] A: He do look like me, man. [¶] . . . [¶] Q: . . . [I]t's like, yeah, I mean, I got . . . your old mug shot poses. It's like . . . you [still] look pretty much the same almost as before." Defendant argues he was entitled under Evidence Code section 356 to have this portion of his interview played for the jury. As the Attorney General notes, however, defendant did not object to the redaction in the trial court. Rather, for "strategic reasons" defense counsel and the prosecution agreed what portions of the interview should be shown to the jury.
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
In any event, the redaction did not violate Evidence Code section 356. The purpose of section 356 "is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission . . . in evidence.' " (People v. Arias (1996) 13 Cal.4th 92, 156.) The omission of the references to Cris did not render misleading the portions of the interview that were admitted. Consistent with this ruling, the court also omitted the following questions and answers: "Q: Charles? It's . . . looking like your brother was stooped blocks away from this, all right? [¶] A: All Right. [¶] Q: You got . . . this huge scene going on, all right? At, at the restaurant. And cops are everywhere, canvasing and making stops on anybody that even remotely looks like it could be a suspect. You understand? Your brother was stopped, all right? [¶] A: Mn hm. [¶] Q: You, know? Ain't, ain't no reason for me to lie to you. Your brother was stopped."
Over defense objection, the court refused to redact the next question: "Q: Okay? So, it's like . . . you fit the description. You understand what I'm saying? So, it's like I got to go down this avenue . . . I got to ask these questions." Defendant argued the statement that he "fit the description" should have been excluded as well because "the description is not specified there. There were descriptions that were made in the conversation, but that particular description . . . is not ascribed to any particular description." The court overruled the objection on the ground that the statement was not being offered for the truth of the matter asserted but "for subsequent conduct to explain the officer, what he's doing, why he's doing it, et cetera."
On appeal, defendant contends the officer's statement created the "misleading suggestion" that police had "outside" information that defendant matched a contemporaneous description. He argues that the police officer's assertion that he "fit the description" is inextricably connected to the discussion of his brother having been stopped and him looking like defendant. We disagree. The description referenced by officers is plainly the same description of the robbers taken from the eyewitnesses that evening. There is no basis to conclude that the jurors would have surmised from this statement that officers had secret information or a different description tying defendant to the crime. Accordingly, there was no error in the admission of defendant's statements to police.
5. The court did not err in refusing to instruct on third party culpability.
Defendant contends the court erred in denying his request for an instruction on third-party culpability. He argues that the "significant disparities and inconsistencies among the descriptions of the robbers" supported an instruction on third party culpability including specification of the burden of proof. We disagree. The jury was properly instructed that it was the prosecution's burden to prove defendant committed the crime. There is no likelihood that absent the requested instruction, the jury would have believed it was defendant's burden to prove that an unknown third-party committed the crime.
Defendant asked the court to give either one of the two following instructions: 1. "The People have the burden to prove beyond a reasonable doubt that the defendant is the person who committed the crime. The defendant does not have to prove that another person committed the crime. You have heard evidence that another person may have committed the crime. If after considering the evidence, you have a reasonable doubt that the defendant was the one who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty." 2. "Evidence has been offered that a third party is the perpetrator of the changed offense. It is not required that the defendant prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal, it is only required that such evidence raise a reasonable doubt in you minds of the defendant's guilt."
6. The court did not err in failing sua sponte to instruct the jury that defendant's statements to the police should be viewed with caution.
Defendant contends the court erred in failing to instruct the jury sua sponte that the defendant's statements are to be viewed with caution. He argues both that the jury should have been instructed with CALCRIM Nos. 358 (evidence of defendant's statements) and 359 (independent evidence of a charged crime) with respect to oral statements made during the course of the robbery that witnesses attributed to defendant.
CALCRIM No. 358 provides: "You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]"
CALCRIM No. 359 provides: "The defendant may not be convicted of any crime based on (his/her) outofcourt statement[s] alone. You may rely on the defendant's outofcourt statements to convict (him/her) only if you first conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] This requirement of other evidence does not apply to proving the identity of the person who committed the crime [and the degree of the crime]. If other evidence shows that the charged crime [or a lesser included offense] was committed, the identity of the person who committed it [and the degree of the crime] may be proved by the defendant's statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt."
In People v. Diaz (2015) 60 Cal.4th 1176, 1189, the court rejected a long-standing rule imposing a sua sponte obligation on the trial court to give the cautionary instruction found in CALCRIM No. 358. The court explained that "in light of a change in the law that requires the general instructions on witness credibility to be given sua sponte in every case, the cautionary instruction is not one of the general principles of law upon which a court is required to instruct the jury in the absence of a request." (Ibid.)
In any event, the omission of the cautionary instruction in this case was harmless. "We apply the standard for state law error: Whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. [Citation.] Failure to give the cautionary instruction is not a violation of federal due process warranting the 'more stringent standard' of review for federal constitutional error." (People v. Diaz, supra, 60 Cal.4th 1176.) Multiple witnesses testified that one of the robbers urged the other to shoot the manager and the other robber shot the manager. At trial, the primary dispute was not what was said but whether defendant was the person who made the statement. Accordingly, there is no reasonable probability that a cautionary instruction would have altered the jury's finding that defendant committed a felony murder.
Defendant suggests that the omission was prejudicial because "Even if the statements did not impact felony-murder, they were very important on the issue of an LWOP [life without parole] special circumstance for a non-shooter. [¶] Since appellant was not proven or found to be the actual killer, to sustain the special circumstance, jurors had to find he aided and abetted a robbery as a major participant and with reckless indifference to human life. [Citation.] [¶] Egging someone to kill colors the entire LWOP circumstance (not to mention a jury), because it confirms grave disregard of life required to impose LWOP on a nonshooter. This is exactly how the prosecutor used the statements here: even if he was not the shooter (as it appeared, although prosecutor did not elect who fired the shots), appellant obviously deserved LWOP because he egged on this senseless killing." The witnesses, however, were cross-examined on any minor inconsistencies in their testimony and the jury was instructed pursuant to CALJIC No. 2.20 regarding the believability of witnesses. The failure to give an additional cautionary instruction was not likely to have altered the jury's special circumstance finding.
As given, CALJIC No. 2.20 provides: "Every person who testifies under oath or affirmation is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. [¶] In determining the believability of a witness you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following: [¶] The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified; [¶] The ability of the witness to remember or to communicate any matter about which the witness has testified; [¶] The character and quality of that testimony; [¶] The demeanor and manner of the witness while testifying; [¶] The existence or nonexistence of a bias, interest, or other motive; [¶] Evidence of the existence or nonexistence of any fact testified to by the witness; [¶] The attitude of the witness toward this action or toward the giving of testimony; [¶] A statement previously made by the witness that is consistent or inconsistent with his/her testimony; [¶] An admission by the witness of untruthfulness."
7. The court did not err in instructing jurors with CALJIC No. 2.62.
Over defendant's objection, the court instructed the jury pursuant to CALJIC No. 2.62, that an adverse inference may be drawn against defendant if "defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge." The court found the instruction was appropriate because defendant failed to explain how his DNA was found on the cigarette butt recovered at the restaurant.
The court was instructed in full as follows: "In this case the defendant, Charles Luckett, has testified to certain matters. [¶] If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indication that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] Failure of the defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of his burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If the defendant does not have knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence." --------
CALJIC No. 2.62 "rests on the logical inference that if a person charged with a crime is given the opportunity to explain or deny evidence against him but fails to do so (or gives an implausible explanation), then that evidence may be entitled to added weight." (People v. Vega (2015) 236 Cal.App.4th 484, 495-496; People v. Sanchez (2003) 24 Cal.App.4th 1012, 1029-1030 ["When a defendant testifies but fails to deny or explain inculpatory evidence or gives a 'bizarre or implausible' explanation, the instruction is proper."]; but see People v. Lamer (2003)110 Cal.App.4th 1463, 1469 [Instruction " 'is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear.' "].) This instruction, however, "should not be given except where the court is satisfied that the evidence has established that defendant probably does have knowledge of facts which equip him to explain or deny the evidence against him." (Use notes to CALJIC 2.62; People v. De Larco (1983) 142 Cal.App.3d 294, 309 ["Of primary importance to the application of CALJIC No. 2.62 is whether the facts or evidence that defendant allegedly fails to explain or deny are within defendant's knowledge."].)
Defendant argues that the instruction was improper because he explained as best he could how his DNA got on the cigarette and any additional explanation was not within his knowledge. Although he testified that he did not know how his DNA ended up in the restaurant, he also testified that at the time he was in the habit of chewing on cigarettes when he was drinking and that family members, who lived in Oakland, had visited him in Compton during the relevant time period so that might be how his DNA ended up in the restaurant. Whether this explanation is so implausible as to be considered a failure to explain is debatable. Even assuming the instruction was unwarranted, there was clearly no resulting prejudice.
Contrary to defendant's argument, it is not reasonably probable that a result more favorable to the defendant would have been reached in the absence of the instruction. (People v. Watson (1956) 46 Cal.2d 818, 836.) In People v. Lamer, supra, 110 Cal.App.4th at page 1472, the court explained that although "courts have frequently found giving CALJIC No. 2.62 to constitute error, we have not found a single case in which an appellate court found the error to be reversible under the Watson standard. On the contrary, courts have routinely found that the improper giving of CALJIC No. 2.62 constitutes harmless error. [Citations.] [¶] One reason courts have found the improper giving of CALJIC No. 2.62 to be harmless is that the text of the instruction itself tells the jury that it would be unreasonable to draw an adverse inference if the defendant lacks the knowledge needed to explain or deny the evidence against him. As the court in People v. Ballard (1991) 1 Cal.App.4th 752, 756: 'CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).' In addition, courts have noted that the fact that juries are instructed . . . to 'disregard any instruction which applies to a state of facts which you determine does not exist,' also mitigates any prejudicial effect related to the improper giving of CALJIC No. 2.62." This reasoning is persuasive and applicable in this case.
8. The felony-murder special circumstance conviction is constitutional as applied to defendant.
Defendant contends that the vague and indiscriminate dual use of the same facts to support first degree murder and imposition of a life without parole term under the special circumstance allegation is unconstitutional. Recognizing that "this state's high court has rejected similar claims," he raises the argument "for purposes of exhaustion of state remedies." Defendant "adds, however, that this court should address all the above constitutional violations in the context of [a life without parole] defendant" as compared to a death penalty eligible defendant. Because we are bound to follow precedent established by the California Supreme Court, we decline defendant's request as we would necessarily reach the same conclusions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
9. The abstract of judgment must be amended.
The Attorney General agrees with defendant that two errors in the abstract of judgment require modification. First, the abstract incorrectly suggests that defendant was sentenced to an additional term of 25 years to life on top of the properly imposed term of life without parole. The abstract also incorrectly identifies the statutory basis for the firearm enhancement as Penal Code section 12022.53, subdivision (d) rather than Penal Code section 12022.5, subdivision (a). On remand, the abstract shall be corrected and copies of the amended abstract transmitted to the to the appropriate parties.
Disposition
The judgment of conviction is affirmed. The matter is remanded for modification of the abstract of judgment.
Pollak, J. We concur: McGuiness, P. J.
Siggins, J.