Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR021976
RAYE, Acting P. J.A jury convicted defendant Wayne Lee Bowen of first degree murder (Pen. Code, § 187, subd. (a)) and sustained an allegation of personal use of a firearm (Pen. Code, § 12022.5, subd. (a)). The court sentenced defendant to 27 years to life.
Defendant appeals, contending the judgment should be set aside for prefiling prosecutorial delay, and the 10 percent administrative fees assessed on the restitution fine and victim restitution were unauthorized. We shall modify the sentence to strike one of the administrative fees and affirm the judgment as modified.
BACKGROUND
The Burglary Ring
Gregory Young, by his own admission a lifelong criminal and drug addict, met defendant, whom he knew from prison, in Reno in late March or early April 1988. Defendant was with Kevin Behm, whom defendant called “The Kid.” Young also knew Carla Faddis, who met defendant around this time and became romantically involved with him.
Defendant and Young decided to commit burglaries together and share motel rooms with Faddis. While defendant and Young committed daytime burglaries, Faddis would usually stay behind, although she participated as a driver once or twice. Both she and Young were consuming large amounts of drugs during this time, methamphetamine for Young and cocaine for Faddis.
Behm was allowed to participate in the burglary ring after defendant vouched for him, but he turned out to be the weak link. Once, Behm was assigned to watch the front door during a burglary, but he was high on methamphetamine and Young found him digging in a toy box rather than watching the door. Defendant was only a little irritated, but he became angrier with Behm over time as his faults accumulated.
According to Young, the group later decided to burglarize a home in an upper middle class neighborhood in Reno. The burglars were using Faddis’s car, which was prone to overheating and shutting down. Since the house was on a steep hill, defendant and Young instructed Behm to park the car up the hill from the house, facing downhill, so that if the car overheated he could coast to them when they were ready to leave.
After they took what they wanted from the house and walked outside, Young looked up the road but did not see Behm where he was supposed to be. Defendant asked where Behm was; Young spotted the car parked the wrong way, facing up the hill. Young told defendant they could push the car to get it pointed in the right direction, but defendant said, “No, I’m out of here, I’m done with this. I’m killing that kid.”
Young and Behm managed to get the car turned around, coast it down to the house, stop it, and fill it with the stolen items. They then coasted farther down the hill past defendant, who refused to get in. They managed to stop the car at a nursery at the bottom of the hill, where Young obtained water to cool the radiator enough to start it. Young then drove back and picked up defendant.
Swearing at Behm, who was in the back seat, defendant told him, “You’re an idiot, your [sic] dead, man. I’m tired of you, I’m just sick of you.” Later, while the car was stopped at a traffic light, defendant pointed a gun at Behm’s face, saying, “You don’t understand, I’ll kill you. I’m going to kill you, man. You keep screwing up, I’m going to kill you.” After Young told defendant people in the truck next to them were watching, defendant turned around and said, “Come on, let’s go.” Later, after they had dropped Behm off and were fencing the stolen goods, defendant told Young, “The Kid’s dead. I’m done messing with him, he’s dead.”
The Killing
In early July, a week to 10 days later, the group was staying at the Continental Lodge in Reno. Defendant told Young he knew the location of a marijuana field and was going there with Behm to steal from it. Knowing this was false, Young asked, “Oh, really?” Defendant responded, “Yeah, me and The Kid are going to go up, The Kid ain’t coming back,” and then had Young put a.38-caliber pistol stolen from a police officer’s house under the driver’s seat of the car.
Defendant and Behm left the room between 3:00 p.m. and 5:00 p.m. According to Faddis, defendant said he was driving Behm to the Reno Greyhound bus station so Behm could go home to New York.
Defendant returned without Behm six to eight hours later, between 11:30 p.m. and 1:00 a.m. According to Young, defendant then went to the bathroom, took off his clothes and shoes, and stuffed them in a bag. He then told Young to “[g]et rid of it good,” and Young left the room to dispose of the clothes.
Defendant was taking a shower when Young returned five minutes later. A nervous and agitated defendant ordered Young to tell Faddis he had dropped Behm off at the bus station. They checked out the next morning, but defendant first told Faddis to thoroughly clean the room, which was unusual when they were checking out. Neither Young nor Faddis ever saw Behm again.
About a week later, Young was sitting on the curb in front of a 7-Eleven, drinking a Slurpee, when defendant asked, “Do you think I should have buried him, Bro?” Young asked defendant what he was talking about. Defendant asked again whether he should have buried Behm, telling Young not to worry as Behm did not suffer. Defendant continued: “Look, Greg, it’s like this cup, when you get done drinking it, what do you do? You throw it away,” a reference to throwing away an unnecessary criminal partner. He later told Young he had shot Behm in the back of the head about five miles up a trail to the marijuana field.
A couple of weeks after Faddis saw Behm for the last time, defendant told her Behm was dead. Laughing, he said he had killed Behm after telling him they were going to steal the marijuana crop.
The Ring Breaks Up
George Seibert was added to the burglary ring after the Continental Lodge incident. Seibert testified that defendant had him drive the two of them to Eagle Lake Road in order to steal from a marijuana field. After parking, they walked next to a dry creek bed for seven to 10 minutes. Seibert began to feel threatened when defendant, who was walking behind him, asked Seibert to walk on the rocks so as not to leave any footprints.
Seibert drew his gun and turned around to face defendant, telling him to get in front. Defendant did so and was walking in the sand, so Seibert told him to walk on the rocks so as to avoid leaving footprints. Defendant complied and they continued walking until Seibert stopped to relieve himself. Defendant walked off to the left and said, “Come on up here, I want to show you something.” Siebert asked if there was any marijuana there, and defendant said no. Defendant pointed Seibert to a spot where there was a “piece of vertebra, looked like it was hooked to a pelvis that was hooked to a pair of blue pants.” Bones were scattered about the site. Seibert said they should go and defendant agreed.
In late August or early September, Seibert, defendant, Faddis, and Young were in a cottage motel on the north shore of Lake Tahoe. After Young told defendant he was going to leave, defendant hit Young in the jaw, knocking him out. An angry defendant said he wanted to kill Young.
When Young awakened, defendant was standing over him and said, “Now I got to kill you, now you made me got to kill you [sic].” Young begged for his life as defendant picked up a.357 Magnum and pointed it at him. Young and Seibert left three to four days later.
After Young and Seibert left the group, defendant took Faddis to the Eagle Lake turnoff near Susanville to show her where Behm was. After they pulled over, got out of the car, and crossed the road, defendant and Faddis stopped by two large boulders on a “little hill.” Defendant told Faddis he had directed Behm to walk over the hill to get to the crop and then had shot him in the head. He told Faddis she would be killed if he ever could not trust her.
Young and Seibert were arrested together on September 23, 1988; defendant and Faddis were arrested five days later. Seibert told the police about being taken to the alleged marijuana field but did not tell the arresting officers about seeing human remains there. Young told officers he was afraid for his life as defendant had already killed a coconspirator.
The Body is Discovered
In October of 1988 two hunters found human bones in an area off of Eagle Lake Road near Susanville, and a hiker found a human skull in the same area. The remains were those of Behm, who was fatally shot twice in the head from a distance of no more than five feet.
Two bullets were recovered from Behm’s skull. The heavily corroded bullets were consistent with being.38-caliber ammunition, and could have been fired from a.357 Magnum or a.38-caliber revolver. Corrosion prevented the bullets from being matched to a specific gun.
The Witnesses Come Forth
In 1994 Faddis told Lassen County Sheriff’s Investigator Bruce Stelzer about defendant’s taking her to Eagle Lake Road and admitting to killing Behm. She also directed Stelzer and other detectives to the place off of Eagle Lake Road where defendant had taken her. The area was consistent with the general location of the “meltdown area” where Behm’s body was found. Faddis pointed out boulders that were present when Behm’s body was discovered in 1988. She also provided the detectives with details of the crime that had not been released to the media.
Sergeant Stelzer defined “meltdown area” as a law enforcement term for “where an individual decomposed.”
Faddis was afraid of defendant and testified under a grant of immunity. After deciding to be truthful to law enforcement about Behm’s murder, Faddis wrote a letter to Young asking him to come forth.
In 1996 detectives delivered Faddis’s letter to Young while he was in prison, telling him Faddis needed his help as defendant was getting out of prison and had threatened Faddis’s children. Young agreed to talk and was later given immunity after telling investigators what he knew.
The first time Seibert told the police about seeing the human remains was in 2007. He had been interviewed four or five times before then but had lied about his knowledge of the case. Seibert did not say anything earlier because he was afraid of defendant and thought he could be in trouble for not originally reporting the body.
Sergeant Stelzer found a police report matching Young’s description of the burglary of the home on the hill. The house was on a steep hill, the location Young described matched the location in the report, and there was a plant nursery at the bottom of the hill. The police report was also consistent with Young’s statement about stealing a gun from a police officer’s house. There was a 7-Eleven at the location mentioned by Young, and it had a Slurpee machine.
Other Crimes
In 1994 Redding police taped telephone conversations between defendant and a man named Hamilton. Defendant was in custody and sought to hire Hamilton to kill Troy Gay, the complaining witness against him in another case. He offered Hamilton $5,000, an amount he would double if the body was not found. Defendant was convicted of solicitation to commit murder as a result.
Hank Shaffer was a friend of defendant in 1992 or 1993. While on a hunting trip, defendant told Shaffer that Faddis “knew something about him that could put him away for a long period of time.” Defendant told Shaffer that friends help each other out and asked Shaffer to take Faddis “out of the picture.” Shaffer believed taking Faddis out of the picture meant killing her.
The Defense
Brian Murphy, who has a prior conviction in Nevada for first degree murder, had known defendant and Young since about 1980 and considered them both to be friends. Young showed up at Murphy’s house in the summer of 2007 and asked to borrow money.
Murphy asked Young about rumors that he was going to testify against defendant. Young said defendant was on his deathbed and “ain’t ever going to go to trial.” Young did not want defendant to get out of prison because he had previously stolen from defendant. Young told Murphy, “I got the police buffaloed and I got a get out of free jail [sic] card.”
Sergeant Stelzer, retired at the time of trial, was the investigating officer who interviewed Seibert in October 1995. Seibert gave a general description of where the marijuana field could be found but never mentioned finding a body.
Seibert used the town of Viola, 74 miles from Susanville, as a reference point in describing the area. He also told investigating officers the field was off of Highway 44 or 88. Highway 44 is five miles from Susanville. Seibert seemed to be a little confused over which road the field was near.
Sergeant Stelzer also testified that in 1988 Seibert took other investigators to an area around Viola to look for a marijuana field. He described the location in terms of Viola and its relation to Lassen Park, Highway 44, and Highway 88. No marijuana field was found.
Defendant, testifying in his own defense, denied killing Behm. He took Seibert to a field near Viola, some 70 miles from Eagle Lake Road, thinking they would find marijuana to steal there. Defendant had spent most of the day and night gambling when Behm disappeared. He admitted the group stayed at the Continental Lodge in Reno on July 13, 1988. Although he had hunted in the Eagle Lake Road area, he denied taking Seibert or Faddis there. He admitted to prior convictions for felony assault and solicitation of murder.
Rebuttal
Nevada records show that Young has continuously been in the custody of the Nevada Department of Corrections since July 2006.
Motions for Dismissal
In December 2005 defendant filed a pretrial motion to dismiss for prosecutorial delay. The motion was heard the next month, and the court deferred ruling until hearing the evidence at trial.
Proceedings were suspended from May 2006 to September 2007 because of defendant’s poor health. The trial started in January 2008 and defendant renewed the motion to dismiss, which the court denied without prejudice pending consideration of the trial evidence.
After the jury convicted defendant, the court denied his motion to dismiss, finding defendant had not been prejudiced by the delay.
DISCUSSION
I. Prosecutorial Delay
The information in this case was filed on July 27, 2005. In 1994 and 1996 Faddis and Young told the authorities that defendant had killed Behm. Defendant contends the 10 years between the effective completion of the investigation and the filing of charges violated due process and so prejudiced him that dismissal is the only remedy. We disagree.
An unreasonable delay between the time an offense is committed and an accusatory pleading is filed may violate both state and federal constitutional due process rights. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-505.) To assess such an alleged violation, the court must balance any prejudice to the defendant against the justification for the delay. (Id. at p. 505; accord, People v. Catlin (2001) 26 Cal.4th 81, 107.) However, the defendant has the initial burden to adduce some evidence of actual prejudice. (Serna v. Superior Court (1985) 40 Cal.3d 239, 249-250.) Speculation based on general claims that witnesses and evidence are unavailable or witnesses’ memories have faded is insufficient to discharge the defendant’s burden. (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946.) We review the trial court’s denial of a motion to dismiss on the ground of precharge delay only for abuse of discretion. (People v. Morris (1988) 46 Cal.3d 1, 38, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6.)
In making the posttrial motion to dismiss, defense counsel claimed to have been surprised when Seibert was called as a witness at the end of the trial, since the prosecutor had not mentioned Seibert in her opening statement. Counsel made an offer of proof that a defense investigator was immediately asked to locate one or both of the sheriff’s deputies who accompanied Seibert to the marijuana field location. The investigator was able to locate one of them, a Deputy Newsom, on the weekend before the last defense evidence was submitted on the following Monday.
Defense counsel admitted he was properly notified that Seibert was a potential witness and was given all of the discovery material regarding him. Defense counsel even mentioned Seibert during his opening statement, going so far as to call him a “convicted felon.”
Deputy Newsom was in a hospital bed in his house, recovering from major leg surgery and under a nurse’s care. He was in no position and had no ability to travel to testify. The deputy had only the vaguest recollection of looking for a marijuana field in connection with a criminal investigation some 20 years earlier.
Defense counsel argued that had the case been tried in 1994 or 1995 Deputy Newsom presumably would have had a memory of the event. Counsel claimed this would have seriously undermined Seibert’s credibility, as it could have established he lied about the location of the marijuana field. Defense counsel also accused the People of sandbagging defendant by holding Seibert’s testimony until the last day of the trial.
In rejecting defendant’s claim, the court explained Seibert’s testimony was not “particularly convincing or probative,” he was “clearly impeached,” and the jury was able to determine his credibility “independent of any evidence that could have been brought before the jury in rebuttal of what was not already done.”
Defendant argues on appeal that Seibert’s testimony was important corroborating evidence of Faddis’s testimony describing her trip with defendant to the fictitious marijuana field where defendant told her Behm was murdered. He asserts that if defendant had been tried in 1995, Deputy Newsom could have been called to testify that Seibert took him to an “entirely different location” from the Eagle Lake Road site.
Since Faddis described the location as no more than 30 to 40 feet from Eagle Lake Road while the remains were actually 1,000 feet from the road, defendant asserts impeaching Seibert’s testimony was important as it would have also undercut the credibility of Faddis’s testimony. If the jury had not believed Seibert or Faddis, defendant claims it could not have convicted him as the testimony of Young, an accomplice, would have been insufficient by itself to convict defendant. While Sergeant Stelzer did recount a taped interview of Seibert during which he gave an inaccurate description of the site’s location, defendant argues this could not have had the same impact as “the testimony of Deputy Newsom, who actually accompanied Mr. Seibert into the field at a location other than Eagle Lake Road.”
Sergeant Stelzer’s testimony provided the jury with the information necessary to assess Seibert’s credibility. The jurors were told that in a taped interview Seibert described the location as being near the town of Viola, and that in 1988 he took officers to the Viola area in an unsuccessful attempt to find the marijuana field. Assuming he could have recalled the event in 1994 or 1995, at best Deputy Newsom could have added details to Sergeant Stelzer’s testimony, describing more specifically where Seibert took them and his demeanor during the unsuccessful search for the marijuana field.
Placed in the context of the compelling evidence of defendant’s guilt, the extra details Deputy Newsom might have provided would not have influenced the jury’s verdict. With their testimony, Young and Faddis corroborated each other on numerous points, including defendant’s fight with Young and the incident at the Continental Lodge. It is true Faddis described walking only 30 or 40 feet from Eagle Lake Road while the main decomposition area was about 1,000 feet from the road. However, even if she did not provide the precise location of the site where the body was found, Faddis’s ability to identify an area very close to the murder site supports her credibility. In addition, Faddis was able to provide authorities with details concerning the murder that were not released to the media.
Young’s testimony was corroborated by other evidence on several key points. He testified to placing a.38-caliber handgun in the car for defendant, a weapon which could have fired the shots according to the forensic testimony. His description of the burglary of a house on a steep hill was consistent with police reports.
In light of the compelling evidence of defendant’s guilt and the evidence already impeaching Seibert’s testimony, we conclude defendant was not prejudiced by the delay. We therefore decline to address the Attorney General’s contention that defendant’s failure to renew his motion at the conclusion of the evidence forfeited the claim.
However, we will address an accusation made by defense counsel in response to the Attorney General’s claim that “[defendant’s] offer of proof revealed that he was aware of his supposed inability to call Deputy Newsom as a witness well before the case went to the jury.” In his reply brief, defendant asserts this is “an outrageous misstatement of the record” and that the Attorney General’s attempt to turn the People’s “last minute decision to call a witness against [defendant] and his counsel who wanted to impeach that witness, violates [defendant’s] due process rights to ‘traditional notions of fair play and substantial justice.’” (Citing Burnham v. Superior Court of Cal. (1990) 495 U.S. 604, 609 [109 L.Ed.2d 631] (Burnham); U.S. Const., 5th & 14th Amends.)
II. Administrative Fee
The court ordered defendant to pay a $200 restitution fine with a 10 percent administrative fee. It also ordered direct victim restitution with the amount to be determined later, again adding a 10 percent administrative fee.
In his opening brief, defendant asserts Penal Code section 1202.4 does not authorize assessing an administrative fee on a restitution fine. The Attorney General correctly points out that defendant is wrong. Section 1202.4, subdivision (l) states: “At its discretion, the board of supervisors of any county may impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court, the proceeds of which shall be deposited in the general fund of the county.”
In his reply brief defendant claims for the first time that “the prosecutor provided no evidence in this record to show that the Board of Supervisors of Lassen County had acted pursuant to [Penal Code] section 1202.4, subdivision (l).” We normally disregard arguments first raised in a reply brief when the appellant fails to explain why they were not raised sooner. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) We see no reason not to apply that rule here.
Defendant also asserts that no statute authorizes the court’s order assessing an administrative fee on the victim restitution award.
We need not determine whether a court can impose an administrative fee on a victim restitution order. An administrative fee cannot be imposed on an unknown number; since the amount of restitution had not yet been determined, the administrative fee was improper.
We shall modify the judgment to strike the administrative fee on the victim restitution order without prejudice to the court’s imposing the fee once the amount of victim restitution is determined. Defendant may then contest whether such a fee is authorized.
DISPOSITION
The judgment is modified to strike the administrative fee from the victim restitution order. As modified, the judgment is affirmed.
We concur: HULL, J., ROBIE, J.
The authority cited by defendant does not support his novel contention that the state can violate a defendant’s due process by assertions made in appellate briefs. Instead, at the page cited by defendant, Burnham stands for an uncontroversial position: “a state court's assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate ‘“traditional notions of fair play and substantial justice.”’” (Burnham, supra, 495 U.S. at p. 609, quoting International Shoe Co. v. Washington (1945) 326 U.S. 310, 316 [90 L.Ed. 95].) The notion of fair play addressed in Burnham has no bearing on defendant’s claim, which we reject.