Opinion
B291115
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. HENRY EARL DUNCAN, Defendant and Appellant.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. A910836) APPEAL from a judgment of the Superior Court of Los Angeles County, Edmund Wilcox Clarke, Jr., Judge. Affirmed in part and remanded with directions. John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
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In 1984, Josephine Eileen DeBaun was brutally killed during a robbery at the restaurant where she worked at the LAX airport. Henry Earl Duncan was convicted of first-degree murder with the special circumstance the murder was committed during a robbery and he intended to and did kill the victim. (Pen. Code, § 190.2, subd. (a)(17).) He was also convicted of robbery (§ 211) and grand theft (§ 487), and the jury found he personally used a knife (§ 12022, subd. (b)). He was sentenced to death. His conviction and death sentence were upheld on direct appeal. (People v. Duncan (1991) 53 Cal.3d 955 (Duncan I).)
All undesignated statutory citations refer to the Penal Code.
After nearly 35 years in the courts, his first-degree murder conviction has never been disturbed and remains valid. But the special circumstance finding has been vacated and retried twice. First, in 2008, the Court of Appeals for the Ninth Circuit on habeas review vacated the special circumstance finding due to ineffective assistance of counsel. (Duncan v. Ornoski (9th Cir. 2008) 528 F.3d 1222 (Duncan II).) After retrial, the jury found the special circumstance true. The prosecution declined to seek the death penalty and the trial court sentenced him to life without parole plus four years. We affirmed on direct appeal in 2012. (People v. Duncan (Aug. 1, 2012, B230459) [nonpub. opn.] (Duncan III).) Four years later, we granted a habeas petition and again vacated the special circumstance finding due to ineffective assistance of counsel. (In re Duncan (July 29, 2016, B243411) [nonpub. opn.] (Duncan IV).) Duncan was retried once again, and a jury again found the special circumstance true. He was sentenced to life without parole.
He appeals the judgment, which is now before us on direct review. We will remand for recalculation of his custody credits, but in all other respects, we affirm.
BACKGROUND
1. Prosecution Case
In 1984, DeBaun was a night supervisor at a restaurant in a terminal at the LAX airport. Each night she would collect cash from registers and deposit it into a safe in a two-foot-by-eight-foot caged area in the restaurant's office known as the "money room." She was last seen alive at 11:50 p.m. on November 13, 1984, and found dead in the money room early the next morning. She had been brutally stabbed and nearly decapitated. Approximately $2,100 was stolen from the supervisor's "floating fund" bank that was unlocked using a VM-19 key on a supervisor's "boss key" ring.
There was blood all over the money room. Investigators photographed three bloody palm prints, a bloody fingerprint, and bloody shoe prints, including one underneath DeBaun's leg. The prints under her leg must have been made before her leg came to rest in that position. Investigators found two pieces of a broken knife handle and photographed a bloody rectangular mark on an open calendar page that resembled a knife blade similar to the knives used in the restaurant. It was discovered two carving knives were missing from the restaurant's kitchen.
A bloody rag was found on top of a padlock used to secure the box containing the "boss key" ring. Discovered later, a duplicate VM-19 key was missing from a concealed panel in the key box.
An open first aid kit was mounted on a metal gate near the entrance of the money room. Inside the kit, investigators found a cylindrical object resembling Johnson & Johnson Band-Aid Waterproof Tape used to bandage wounds. There was no blood on the kit and nothing was found outside the kit that likely belonged inside. A print lifted from the kit belonged to an unidentified person.
An autopsy revealed DeBaun suffered multiple wounds, including cuts to her face; two stab wounds in her chest and abdomen; and a slice to her neck deep enough to hit her spine. She had defensive cuts to her hands and arm. The wounds were consistent with knives like the two missing from the restaurant.
Duncan was working as a cashier in the restaurant the night of the murder. He clocked out at 11:00 p.m. that night. A bartender saw him talking with another man around 11:00 p.m. Between 11:00 p.m. and 11:30 p.m., a custodian saw Duncan eating a banana on the mezzanine level one floor above the restaurant. She asked what he was doing, and he responded he was "waiting." She saw him sit on a bench that had a view of a door leading into the restaurant's office.
The bartender had seen the same man a week earlier looking through a window toward the door to the money room. The man wore overalls similar to those worn by Department of Airport employees. The bartender saw him talk to DeBaun at the time.
Detectives interviewed Duncan two days after the murder. They did not notice any injuries on him. Duncan told them he closed his cash register at 10:45 p.m. on the night of the murder, took his money to DeBaun in the money room where she counted it, punched out at 11:00 p.m., and went home.
Duncan continued to work as a cashier at the restaurant until February 8, 1985, when he stole $1,770 from the supervisor's floating fund bank and $300 from his individual cashier's nest bank. About a month later, detectives searched his residence and found the duplicate VM-19 key in his car, which Duncan had used to steal the money in the 1985 theft. They also found a pair of shoes with a pattern consistent with the bloody shoe prints found in the money room and under DeBaun's leg.
Duncan's fingerprints and palm prints were matched to four prints found in the blood in the money room. The blood had to have been wet at the time. For two of the palm prints, Duncan's hand was bloody when it contacted a clean surface.
2. Defense Case
In his defense, Duncan attempted to establish an unidentified accomplice murdered DeBaun and Duncan did not intend for her to be killed. He focused on forensic analysis of blood evidence from the crime scene to raise the possibility another person was present during the murder.
Los Angeles Police Department criminalist William Lewellen conducted blood-type testing in 1985 on blood samples collected from locations at the murder scene away from DeBaun's body, since those might have come from an injured suspect and not the victim. In three of the samples, he found AB or A and B antigens that likely came from a human source other than DeBaun or Duncan, who were both blood type O. Lewellen could not say when the antigens were deposited or whether the person who deposited them was present at the crime. The antigens also could have come from saliva, semen, or sweat, rather than blood.
Around 2010, Kelli Byrd, a forensic DNA analyst from Orchid Cellmark, performed autosomal STR DNA testing on blood samples from the money room. None of her test results included Duncan as a contributor. Only one sample from the floor of the money room included a mixture with an unknown male as a minor contributor, but it was considered "background."
In 2009, Gary Harmor, a serologist from the Serological Research Institute (SERI), conducted DNA testing on two blood samples using Y-STR testing, a more sensitive testing method used to detect minor male DNA profiles in samples that are otherwise overwhelmingly female. Testing showed two bloodstains on the floor in the money room contained DNA from a male other than Duncan. The DNA profiles were "extremely weak," however. Harmon noted law enforcement personnel in 1984 did not wear protective clothing or gloves and could have unwittingly deposited DNA in the money room. The money room was also accessible to at least 29 people, and he opined it could be "ripe" for picking up biological material, including DNA. Mopping or cleaning the floor may not necessarily destroy DNA.
In 2012, the defense hired private forensic scientist Marc Taylor to investigate a perceived inconsistency between the 1985 blood-typing results and Cellmark's STR testing results. The apparent anomaly existed because blood samples from the scene containing A and B antigens could not have come from DeBaun, and yet those same samples returned DNA results for only DeBaun. Taylor essentially explained the blood-typing test could detect even small amounts of A and B antigens mixed with a large amount of type O cells, but in the DNA testing, a large amount of female DNA could overwhelm a smaller amount of male DNA, which might have been from the possible AB donor.
Taylor conducted Y-STR testing on six cuttings from a blood-stained rag from the scene. Cellmark had tested the same rag and it came back with only DeBaun's DNA profile. However, the Y-STR testing on both blood-stained and unstained portions of the rag detected male DNA, and Duncan could not be excluded as a donor. The DNA on the unstained portions of the rag could have come from sweat, saliva, or other bodily fluids. It was possible the DNA contributors could have been other restaurant employees or the criminalist and serologist, who worked without gloves or masks in 1984.
Terry Laber, a blood spatter expert, opined DeBaun was standing and projecting blood before falling to the floor. One of Duncan's fingerprints was made after the blood was dry, and his finger had blood on it when it contacted the dried blood.
A fingerprint expert examined two smudges made on a page in a book from the money room and opined they were impressions of two gloved fingers. The gloves were heavy duty latex or a neoprene-type material like kitchen gloves.
In addition to his forensic evidence, Duncan offered evidence the floors in the restaurant were customarily mopped after close. The parties stipulated to testimony from a bartender who did not know if they were mopped the night of the murder, but he recalled the employee responsible for doing it worked that evening. The bartender's expectation was the floors would have been mopped. An investigator testified four witnesses told him they observed the cafeteria being mopped the night of the murder.
Also on the night of the murder, an airline employee saw an African-American man looking in the windowed door toward the restaurant's money room. The man told the employee he worked for Marriott, but then changed his mind and said he worked for Hudson General. Later that evening, the employee saw the same man in the high security area. The man wore no badge and the employee asked him what he was doing there. The man was not Duncan.
Finally, a security screener testified she used her locker key or even a paperclip to open locked doors around the restaurant. Employees also had security codes for the doors requiring them. There was also an unlocked greasy trash chute leading to the tarmac outside the terminal.
DISCUSSION
I. The Trial Court Did Not Prejudicially Err in Excluding Certain Evidence
Duncan contends the trial court abused its discretion and violated his constitutional right to present exculpatory evidence by excluding two pieces of hearsay evidence related to his defense that an accomplice committed the murder. We disagree.
A. No Error Excluding Duncan's Waiting "For a Fellow" or "For Somebody" Statement to Custodian
Duncan's first claim of error is the exclusion of a statement he made to the custodian who saw him eating a banana on the mezzanine after his shift was over on the night of the murder. During the first trial in 1986, she testified Duncan told her "he was waiting for a fellow . . . and he was hanging him up." On cross-examination, she was again asked, "[He] told you, I am waiting for somebody and they hung me up." She responded, "Yes."
At the 2010 retrial, she testified he said he was "waiting for a friend." The parties agreed not to read any of her 2010 testimony to the current jury.
She had passed away by the current trial, so her 1986 testimony was read to the jury. The trial court excluded everything after "he was waiting" and "I am waiting" from the current trial as inadmissible hearsay. The parties and the court extensively discussed the issue. The court concluded, "So in my view, the portion of the response that says, 'I am waiting,' describes conduct. The portion of the response that would attribute a motive or reason to waiting, doesn't describe conduct. I think those are different things, and I would be more inclined to admit the 'I am waiting' statement than the 'for someone' or 'for a friend.' " The court was also concerned the "for a fellow" or "for somebody" part was unreliable because Duncan had a motive to lie about why he was waiting, given he was planning a robbery and possibly a murder.
Duncan claims the full statement was admissible under four state-law hearsay exceptions: as a contemporaneous statement (Evid. Code, § 1241); as context for the rest of the statement (Evid. Code, § 356); as impeachment (Evid. Code, § 1202); and as state of mind (Evid. Code, § 1250). He failed to assert the context and impeachment exceptions in the trial court, so he has forfeited those theories. (People v. Smith (2003) 30 Cal.4th 581, 629-630 (Smith).) For the remaining two exceptions, the court acted within its discretion in finding they did not apply. (People v. Waidla (2000) 22 Cal.4th 690, 725 [admissibility of hearsay evidence under state law reviewed for abuse of discretion].)
Duncan suggests the context exception in Evidence Code section 356 was raised in the trial court. He cites a footnote from the prosecution's brief opposing the admission of this testimony and a passing comment by the prosecutor during argument on the issue. He also cites defense counsel's comment, "The prosecutor has a duty not just to be a zealous advocate but also to present what happened in the truth." These references did not adequately raise the issue of Evidence Code section 356 in order for the trial court to rule on its application to the testimony here.
An out-of-court statement may be admissible if it "[i]s offered to explain, qualify, or make understandable conduct of the declarant" and "[w]as made while the declarant was engaged in such conduct." (Evid. Code, § 1241.) This provision embodies the concept of "verbal acts," which allows the admission of a statement accompanying conduct "where it tends to explain or show the character, motive, purpose, or intent of the act or transaction in dispute." (People v. Frangadakis (1960) 184 Cal.App.2d 540, 549.)
In drawing a line between Duncan's statement he was "waiting" and his statement he was waiting "for a fellow" or "for somebody," the trial court found the "waiting" portion fell within Evidence Code section 1241 to describe his conduct in the moment the custodian encountered him on the night of the murder. The "for a fellow" or "for somebody" portion did not because it described his motive or reason for waiting. The trial court arguably erred because Evidence Code section 1241 could apply to a description of the motive or purpose of an action. But verbal acts are admitted because they explain the "character of the transaction, its quality, purpose, or motive, given under such circumstances as to preclude the idea that it involved a falsehood deliberately meditated and conceived and given expression for the benefit or advantage of the declarant himself." (People v. Fong Sing (1918) 38 Cal.App. 253, 258.) The trial court believed Duncan had the chance to be "deceptive" about the reason he was waiting on the mezzanine. That was eminently reasonable. The conversation appeared to have been casual and it preceded a robbery and murder the same night, suggesting Duncan had both the opportunity and motive to lie about his true reason for waiting there. The trial court did not exceed its broad discretion in rejecting the application of Evidence Code section 1241.
Evidence Code section 1250 permits admission of a statement of a declarant's then-existing state of mind, including a "statement of intent, plan, motive, [or] design," if the declarant's state of mind is at issue in the action and "[t]he evidence is offered to prove or explain acts or conduct of the declarant." (Evid. Code, § 1250, subd. (a)(2).) Even when a statement falls within this exception, it will not be admitted "if the statement was made under circumstances such as to indicate its lack of trustworthiness." (Evid. Code, § 1252.) Trustworthy statements are those " 'made in a natural manner, and not under circumstances of suspicion . . . . Such declarations are admissible only when they are " 'made at a time when there was no motive to deceive.' " ' " (People v. Ervine (2009) 47 Cal.4th 745, 778-779 (Ervine).) As explained above, Duncan had a substantial reason to lie about his reason for waiting on the mezzanine after his shift ended on the night of the murder. The trial court did not abuse its discretion in refusing to apply the state-of-mind exception in Evidence Code section 1250.
Duncan also contends that even if his "for a fellow" or "for somebody" statement was excludable under state law, the federal constitution compelled its admission, citing Chambers v. Mississippi (1973) 410 U.S. 284, among other cases. We disagree. "The United States Constitution compels the admission of hearsay evidence only if the proponent shows the evidence is highly relevant to a critical issue and is sufficiently reliable." (Smith, supra, 30 Cal.4th at p. 629; see People v. Dixon (2007) 153 Cal.App.4th 985, 1000 (Dixon) ["The holding in Chambers is premised on a conclusion that the evidence was reliable."].) " 'The same lack of reliability that makes the statements excludable under state law makes them excludable under the federal Constitution.' " (Smith, supra, at p. 629; see Ervine, supra, 47 Cal.4th at p. 780.) Again, his statement was not reliable as explained above, so the exclusion of this evidence did not violate Duncan's constitutional rights.
B. No Constitutional Error Excluding Testimony Bandages Were Missing from First Aid Kit
Duncan attacks the exclusion of testimony from a detective at the 1986 trial that, at the time of the original investigation, an unidentified individual told him bandages were missing from the open first aid kit at the scene. The defense theory was an accomplice might have gotten injured during the attack and used bandages in the kit. The court excluded this testimony from the current trial as inadmissible hearsay and irrelevant because the source of the statement was unidentified and no one knew when the bandages might have been removed. The court noted Duncan was not precluded from arguing the "kit had bandages in it at some point in time," although when it contained bandages was "subject to speculation."
The possible missing bandages were mentioned in both prior opinions granting habeas relief. (Duncan II, supra, 528 F.3d at pp. 1227, 1243-1244 [referencing missing "first aid supplies"]; Duncan IV, supra, B243411, at [pp. 4, 7, 17].) Neither opinion discussed the admissibility of the evidence.
Duncan does not attack the court's ruling under state law; he instead argues the federal constitution compelled its admission. Again, hearsay may be admitted as a constitutional matter only when the evidence is sufficiently reliable. (Smith, supra, 30 Cal.4th at p. 629; Dixon, supra, 153 Cal.App.4th at p. 1000.) The trial court reasonably found the testimony on the possible missing bandages was not reliable—it came from an unidentified source and no other evidence showed whether bandages might have been in the first aid kit prior to the murder or, if they were present, when they were removed. Duncan has not shown his constitutional rights were violated by the exclusion of the bandages evidence.
Respondent argues this contention was forfeited because Duncan did not raise it in the trial court. Defense counsel expressly objected to the exclusion of this evidence on due process grounds. We will assume this was sufficient to raise the issue since it fails on the merits.
C. No Prejudice
In any event, any erroneous exclusion of the two items of hearsay evidence discussed above was harmless under any standard. (People v. Watson (1956) 46 Cal.2d 818, 836 [more favorable result reasonably probable]; Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond reasonable doubt].) The excluded evidence was duplicative of ample evidence an accomplice was present and may have killed DeBaun. DNA and blood-typing evidence suggested another person was in the money room at some point. There was testimony Duncan was seen talking with another man the night of the murder and a man was seen peeking into the money room that night. And there was evidence someone else could have accessed the restaurant because the locked doors could have been easily opened, employees had security codes for the doors, and a trash chute into the area was unlocked. Moreover, the open first aid kit and the empty Waterproof Tape cylinder supported defense counsel's argument the bandages were missing because an accomplice was injured during the attack, whereas Duncan had no injuries after the murder.
Duncan incorrectly contends constitutional error in excluding evidence is reversible error per se. This type of error is subject to harmless error analysis. (See People v. Farley (2009) 46 Cal.4th 1053, 1104.)
Further, even if the excluded evidence had placed someone else at the scene or even shown someone else murdered DeBaun, it did little to undermine the evidence of Duncan's intent to kill. At the time of the murder, the robbery-murder special circumstance required proof Duncan intended DeBaun be killed, whether he was the actual killer or an accomplice. (Duncan I, supra, 53 Cal.3d at p. 973; Duncan II, supra, 528 F.3d at p. 1240.) Duncan's palm and fingerprints were found in wet blood in the room, his shoe print in blood was found under DeBaun's leg, and he had the duplicate key to the bank most likely taken during the robbery. This evidence overwhelmingly showed he was present in the tiny money room at the time of or immediately after the murder. Duncan also had a strong motive to want DeBaun dead—she would have recognized him and likely reported him to police. Given the brutality of the killing and DeBaun's defensive wounds suggesting she fought back, Duncan at best stood by while she was violently attacked and killed, showing he intended her death. The exclusion of two duplicative pieces of evidence that someone else might have been present and murdered DeBaun would not have impacted the verdict.
II. The Trial Court Committed No Misconduct
Duncan contends the trial court "injected itself aggressively" into the presentation of his case, impairing his right to a defense. He focuses on the court's questioning of his blood spatter expert Laber, Orchid Cellmark DNA expert Byrd, and private DNA scientist Taylor. He also cites other places in the record where he claims the trial court committed misconduct.
We have reviewed his record citations, and he did not object to any of these instances he now claims amounted to misconduct. The closest he came was after the court's questioning of Laber, when defense counsel specifically said he had no objection to the court's "clarification" of the testimony but asked the court "refrain" from "cross-examining the defense witnesses, with skepticism." Duncan has forfeited his claim. (People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) Nor has Duncan shown objections would have been futile. (People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm).) Had he objected to any of the many instances he claims the court improperly questioned his witnesses, the court could have been alerted to Duncan's concerns and adjusted its questions accordingly.
Even absent forfeiture, this claim fails. "A trial court has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony. [Citations.] The court may not, however, assume the role of either the prosecution or of the defense. [Citation.] The court's questioning must be ' "temperate, nonargumentative, and scrupulously fair" ' [citation], and it must not convey to the jury the court's opinion of the witness's credibility." (People v. Cook (2006) 39 Cal.4th 566, 597 (Cook).)
The trial court questioned the blood spatter expert Laber in several respects. It sought to clarify the slides Laber used for his testimony and questioned him on his opinions on footwear patterns, blood drops at the scene, and the bloody knife impression on the calendar page. Outside the presence of the jury, the trial judge expressed concern the science in the case be "vigorous and accurate" and Laber's opinions were not based on science. The judge explained he believed at one point Laber "was just making things up." The judge believed if an expert "claims to have expertise and scientific background and starts making things up," the judge would "ask enough questions to satisfy" himself. Despite these comments outside the presence of the jury, his questions to Laber in front of the jury were temperate and fair, designed to ensure scientifically-based expert testimony without expressing any opinion on Laber's credibility.
Outside the presence of the jury, the trial judge commented, "I'm not going to sit by and let experts, who in my day would have been called commercial sex workers for their willingness to testify in a certain way, to stretch into areas where they don't belong, to give opinions because they think that's what's desired by their side, et cetera, when they don't have a basis for it." While using the term "commercial sex workers" to describe some experts was not advisable, the court did not make the comment in front of the jury, so it could not have impacted the verdict. --------
For Orchid Cellmark DNA expert Byrd, Duncan does not cite the parts of the record where he believes the court's questioning was objectionable. He cites a discussion of the DNA evidence outside the presence of the jury, but that could not have had an impact on the verdict. (See Cook, supra, 39 Cal.4th at p. 599 [claim of judicial misconduct subject to harmless error analysis].) For DNA scientist Taylor, the court interjected several times, but the court was simply clarifying his testimony and ensuring a clear record. Other times, the court was ensuring defense counsel's questions to Taylor were clear. Nothing about the questioning remotely suggested the court was siding with the prosecution or biased against the defense. Finally, Duncan cites a host of other instances where the trial court questioned witnesses. Again, none of them suggested bias against the defense in any way.
Duncan analogizes to Sturm, but the record here comes nowhere close to the "unique facts" of that case—numerous instances of serious misconduct the trial judge directed at the defense that created a "pattern of disparaging defense counsel and defense witnesses in the presence of the jury" and "conveyed the impression that he favored the prosecution by frequently interposing objections to defense counsel's questions." (Sturm, supra, 37 Cal.4th at p. 1238.) We need not belabor the issue further. Suffice it to say, we have "thoroughly reviewed the transcript of the trial and each instance of the trial court's participation in the questioning of witnesses, and we are satisfied that the trial court's involvement did not constitute misconduct. The trial court did not 'persistently make[] discourteous and disparaging remarks so as to discredit the defense or create the impression it [was] allying itself with the prosecution.' " (People v. Raviart (2001) 93 Cal.App.4th 258, 271.)
III. There Is No Cumulative Prejudice Warranting Reversal
Duncan contends the cumulative effect of the errors during his trial compel reversal. Having found no errors, we reject his contention.
IV. Duncan's Eighth Amendment Challenge to His Life Without Parole Sentence Fails
Duncan contends his sentence of life without parole based on the felony-murder special circumstance violates the Eighth and Fourteenth Amendments. He bases his argument on recent changes to the law of felony murder enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), effective January 1, 2019. He argues the felony-murder special circumstance no longer meaningfully narrows the class of defendants subject to life without parole because now it duplicates the newly amended requirements for felony murder in section 189.
He lacks standing to assert this claim because the "narrowness" requirement under the Eighth Amendment only applies to death sentences, not life without parole. (Houston v. Roe (1999) 177 F.3d 901, 907; see People v. Zimmerman (1984) 36 Cal.3d 154, 158.) In arguing otherwise, Duncan relies on People v. Banks (2015) 61 Cal.4th 788 and People v. Estrada (1995) 11 Cal.4th 568, but both cases are distinguishable. They addressed issues arising under the felony-murder special circumstance in section 190.2, subdivision (d), which subjects an accomplice to life without parole if he or she was a " 'major participant' " in the underlying felony and acted with " 'reckless indifference to human life.' " (Estrada, supra, p. 572, italics omitted; see Banks, supra, at p. 794.) That provision is not implicated here because, as noted above, the robbery-murder special circumstance required proof of Duncan's intent to kill at the time of DeBaun's murder. (Duncan I, supra, 53 Cal.3d at p. 973; Duncan II, supra, 528 F.3d at p. 1240.) We reject his constitutional claim.
V. The Trial Court Must Award Presentence Conduct Credits on Remand
Appellant argues, and respondent concedes, the trial court improperly failed to award presentence conduct credits pursuant to section 4019. They are correct. Section 2933.1 limits the accrual of conduct credits for defendants convicted of certain violent felonies, and section 2933.2 precludes conduct credits entirely for those convicted of murder. But neither statute applies to offenses that predate their enactment, and since the murder in 1984 predated both statutes, their limitations do not apply to Duncan. (§ 2933.1, subd. (d), eff. Sept. 21, 1994; § 2933.2, subd. (d), eff. June 3, 1998.) The record contains insufficient information to calculate his credits, so we remand to allow the trial court to calculate them pursuant to section 4019.
Respondent also points to a possible discrepancy between the custody credits awarded at the sentencing hearing and the credits recorded in the sentencing minute order and abstract of judgment. At sentencing, defense counsel stated Duncan had 32 years and 108 days of custody credits, which was the "entirety of the credits up to and including today." Without explanation, the court awarded 32 years and 110 days of custody credits. The minute order and abstract of judgment reflect 32 years and 108 days of credit. On remand, the court should clarify the correct number.
DISPOSITION
The matter is remanded for the trial court to recalculate Duncan's presentence conduct credits pursuant to section 4019 and clarify his custody credits. In all other respects, the judgment is affirmed.
BIGELOW, P. J. WE CONCUR:
GRIMES, J.
WILEY, J.