Opinion
C075136
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON ROSS GILLEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF118737A)
In July 2011 Dalene Carlson moved to Stockton to find a job and go to school. She disappeared three weeks later after leaving a bar with defendant Jason Ross Gilley. Her remains were discovered in October 2011 in a cornfield in Escalon. She had been shot once in the back of the head and twice in her lower torso. Cartridge cases found near her remains matched cases that were test fired from defendant's handgun.
A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)) and found true a special-circumstance allegation that the murder was committed during the commission of a kidnapping (§ 190.2, subd. (a)(17)(B)), and an enhancement allegation that defendant intentionally and personally discharged a firearm during the commission of the murder (§ 12022.53, subd. (d)). The jury could not reach a verdict on a rape special-circumstance allegation, and a mistrial was declared as to that allegation. The trial court sentenced defendant to life without the possibility of parole for the special-circumstance murder, plus 25 years for the firearm enhancement.
Further undesignated statutory references are to the Penal Code.
Defendant appeals, contending the trial court made various evidentiary and instructional errors, abused its discretion in denying his request for a mistrial based on the prosecutorial error, and committed federal constitutional error by allowing witness testimony to be read to the jury outside the presence of defendant or his trial counsel. He further contends that a parole revocation fine imposed pursuant to section 1202.45 is unauthorized and must be stricken. We agree with his last contention and shall strike the parole revocation fine. We shall affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
On July 19, 2011, 23-year-old Dalene Carlson moved to Stockton from Idaho to find a job and go to school. Dalene lived with her aunt in Stockton.
Consistent with much of the evidence in this case, we shall refer to Dalene and her acquaintances by their first names. No disrespect is intended.
Shortly after arriving in Stockton, Dalene began dating Jacob Evangelisti. By early August, Dalene appeared to have lost interest in Jacob and had turned her affections toward James Cosens. James had been friends with defendant for 17 years, and at all relevant times herein lived with defendant, who lived with his grandmother and mother. Dalene, defendant, James, and Jacob regularly frequented Finnegan's Bar in Stockton.
At approximately 10:00 p.m. on August 6, 2011, Dalene left her aunt's house to go to Finnegan's Bar with a friend. Dalene's friend drove her to the bar, but the two separated after they arrived. Dalene's friend assumed that he would drive Dalene home, but Dalene later informed him that she had a ride home. She did not say with whom. Her friend never saw her again.
Jacob arrived at Finnegan's Bar about 30 minutes before Dalene. The two spoke briefly, and Jacob gave Dalene some money for drinks. When Jacob left the bar, he telephoned Dalene, who told him that she had left with defendant to grab a bottle and go back to his house to "take shots." Jacob did not believe her and texted defendant, "Is Dalene with you?" Defendant responded in the negative and said he was at the hospital with his son.
After arriving at Finnegan's Bar, Dalene texted James and told him that she wanted him to go to Finnegan's Bar. He responded that he could not go because he was with his "brother" Christian.
At 12:05 a.m. that morning, August 7, 2011, Dalene texted James, "Im crashing at jasons on the couch." James responded, "Lmao wow ok." Dalene then texted, "U wann join?" James declined. At 12:46 a.m. Dalene texted James, "We're getting a bottle of jaeger i think," and James responded, "Lmfao . . . he tryin to get u wasted lmfao . . . really have fun wit that."
Shortly after 1:00 a.m., defendant texted Dalene, "Ready." She responded, "Yep," and defendant replied, "Lets go then." A few minutes later, defendant texted Dalene, "Go to the car."
At 1:28 a.m., James texted Dalene, "I am sorry but u just told me u wernt goin home wit a guy and then say ur goin home wit jason who wants u pretty bad . . . and i am over here thinkin bout u." James told Dalene "not to get drunk to where u do something stupid . . . i dont want u drunk hookin up wit him . . . that would hurt." Dalene and James continued to exchange text messages until 2:15 a.m.
At about 5:00 a.m., Jacob spoke to Dalene, who told him she did not want to be at defendant's house anymore. At 5:02 a.m., Dalene texted Jacob, "Im comiin home," and he responded "K." A few minutes later, she texted him, "I wuv u," and he replied, "I love you dalene." At 6:31 a.m., Jacob texted Dalene, "?" She did not respond.
At 8:23 a.m., James texted Dalene, "U ok?" She did not respond. At 9:22 a.m., James texted her, "I just wana say good morning and I hope ur ok u stopped textin me lasnight hope u didn't do anything dumb . . . miss u tons . . . text me when ur alive lol." At 9:25 a.m., James received the following text from Dalene's phone, "No." James responded, "No? No wat" and "I am lost." James continued to text Dalene for the next hour but did not receive a response. Finally, at 10:27, James texted Dalene, "Do u not wana talk to me. . Is that wat the no was for? Please tell me." At 10:29 a.m., he received the following response, "i do." James then asked, "So wat happened last night? Tell me the truth," and received the following response, "When." James replied, "When you went home wit jason," and received the following response, "I didnt go with him went with johny." At 11:17 a.m., James received a text from Dalene's phone stating that she was walking home from Country Club Boulevard in Stockton, which would have been a 30-45 minute walk. The last text from Dalene's phone was sent at 11:25 a.m., while she supposedly was walking home.
Dalene's aunt began calling her after 3:30 a.m. on August 7, 2011. She called her every hour but got no answer. She also texted and left voice mail messages but never got a response. At approximately 11:30 p.m. that night, Dalene's aunt contacted the Stockton Police and reported Dalene missing.
On the evening of August 7, 2011, after learning that Dalene had not returned home, James went to Finnegan's Bar and viewed surveillance video taken in and around the bar to determine who Dalene left with that morning. He recognized Dalene and defendant on the videotapes, both individually in the bar and together outside the bar. Dalene was last seen on the videotape from Finnegan's Bar at 1:15 a.m. on August 7, 2011. Surveillance footage from the Stockton Food-4-Less showed defendant and Dalene at the store early that morning, and a receipt for the same Food-4-Less found in defendant's garage showed a purchase of Jäegermeister and two Monster Energy drinks at 1:28 a.m. on August 7, 2011.
On August 9, 2011, defendant was interviewed at his home by Detectives Larry Lane and James Knief of the Stockton Police Department. Defendant told the detectives that he was with Dalene at Finnegan's Bar on the night of August 6, 2011, until early the next morning. He offered her a ride home, but she declined. He left the bar around 1:00 a.m. after receiving a message from his grandmother informing him that his son was sick. He said his last contact with Dalene was at 1:10 a.m. on August 7, 2011, when he texted her about a ride.
Following defendant's arrest on August 14, 2011, defendant was interviewed by Detective Knief and Detective Bradley Burrell. The interview was videotaped and played for the jury. Defendant initially told the detectives the same story he told Detective Lane, namely that he left the bar alone around 1:00 a.m. after receiving a text from his grandmother informing him that his son was ill. Later, he admitted leaving the bar with Dalene, buying a bottle of Jäegermeister at Food-4-Less, and taking her back to his house, where they consumed the entire bottle and had sex. Defendant explained that after they had sex, Dalene became upset, said "it" should not have happened, and started to walk home. Defendant got in his grandmother's car and picked her up at the corner near his house. Just before they reached Charter Way, near where Dalene lived, Dalene either got out or attempted to get out of the car. Thereafter, defendant drove south to Modesto with Dalene in the car. Dalene was "irate" and demanded to be let out of the car the entire drive, which lasted 30 to 45 minutes. Dalene told defendant that he was "horrible" and a "piece of garbage" and said that she could not believe that he did "this." When defendant pulled off the freeway in Modesto and attempted to make a U-turn, Dalene got out of the car and took off running. That was the last time he saw her.
The interview is set forth in more detail below in the discussion of defendant's claim that the trial court erred in denying his motion to exclude the statement he made during the same.
Defendant was released on August 18, 2011, following his arrest, and on August 22 went to the police station to report a lost or stolen wallet. Detective Robert Faine saw defendant and asked defendant to accompany him and retrace defendant's route on the day Dalene disappeared. Defendant agreed and directed Faine to go eastbound on Highway 4, then southbound on Highway 99. He said that he chose Highway 99 because Dalene lived off of Charter Way. When they passed the Charter Way exit, Faine asked defendant why he did not take it, and defendant said he did not know why. Defendant said that he was speeding to keep Dalene from jumping out of the car. She was irrational, screaming, and trying to get out of the car. By the time they got to Ripon, Dalene had settled down, and defendant thought it would be safe to get off the freeway. When he exited the freeway at the Maze Street exit in Modesto, she jumped out of the car. Faine asked defendant why he did not try and get her, and defendant said that the car behind him was honking and he needed to get home, so he got back on the freeway. Defendant then said that he looked for Dalene for about 10 or 15 minutes but had to leave because he was running out of gas. He drove back to Arch Road in Stockton to get gas. Surveillance video revealed that defendant stopped at a gas station near the Arch Road exit off Highway 99 in Stockton at 10:46 a.m. on August 7, 2011.
On October 15, 2011, human remains, which were later determined to be those of Dalene, were discovered in a cornfield about 64 feet from Lone Tree Road in the Escalon. Sarah Yoshida, a senior criminalist with the Department of Justice, was dispatched to the crime scene that afternoon. Yoshida found several bones, including a skull, rib bones, a jaw, numerous vertebrae, and foot and leg bones. She also found a human torso and a clump of hair. A black bra was found in the area between the remains and Lone Tree Road. Five .22-caliber cartridge cases were found just southeast of where the human remains were found.
Dr. Bennet Omalu, a medical examiner for San Joaquin County, was called to the crime scene around 9:00 p.m. that night. He saw the body and requested that the ground underneath it be excavated 18 inches. The soil was secured in a body bag and X-rayed. Two .22-caliber bullets were located in the excavated soil. Dr. Omalu performed an autopsy on Dalene's remains. He opined that Dalene was shot in the cornfield where her remains were found and that the bullets went though her body and embedded in the soil directly underneath her or stayed inside the body and fell out as the body decomposed. There was a gunshot entrance wound to the back of the head, consistent with an execution style shooting. A bullet was discovered in the base of the anterior fossa of the skull. There was a ring of black soot surrounding the gunshot wound, indicating "it was either a contact or a close-range gunshot wound." Dalene's fingers, fingernails, and jewelry were entangled in her hair, and based on that and the location of the gunshot wound, Dr. Omalu opined that Dalene had her hands and fingers around her head when she was shot. X-rays of the residual trunk revealed two bullets in the lower abdominal cavity. One was closer to the pelvis, and a second was in the spinal canal. Dr. Omalu concluded that Dalene "died as a result of a gunshot wound of the head and gunshot wounds of the trunk were contributory factors to her death." He also opined that the decomposition of her body was consistent with her being deceased on August 7, 2011.
In late July 2011, just prior to Dalene's disappearance, defendant asked his uncle for defendant's handgun to go shooting with a friend. The gun was originally purchased by defendant's grandfather, was passed down to defendant, and was being stored in defendant's uncle's gun safe. Defendant's uncle gave him the gun, a Jennings .22-caliber semi-automatic handgun. Defendant returned the gun sometime between August 8 and 11, 2011, after Dalene had gone missing.
About a week prior to Dalene's disappearance, defendant told Donald Bennett that he wanted to shoot a gun that he had received from his grandfather. Bennett and defendant went to the diverting canal off of Main Street, where defendant shot the gun. Bennett identified the gun defendant obtained from his uncle as the gun defendant used at the diverting canal. On October 18, 2011, Tammy Chaney, a field evidence technician for the Stockton Police Department, was dispatched to diverting canal off of Main Street where she collected expended .22-caliber cartridge cases.
Yoshida also testified as an expert in the area of ballistics and firearms generally. She explained that ammunition is comprised of the bullet, the cartridge case, and the powder, which is contained inside the cartridge case. When a semi-automatic or fully-automatic firearm is fired, the cartridge case is expelled from the firearm, and the bullet is the part that comes out the muzzle of the barrel. The hammer (or firing pin) of the gun strikes the cartridge, which ignites the primer, which ignites the gunpowder, which propels the bullet out of the barrel. The firing pin, the extractor hooks, and the force of the explosion all cause the cartridge to be marked. The bullet travels down the chamber and sometimes there are marks made on the bullet "based on what's going on in the barrel." The number .22 refers to a caliber of the ammunition, which is based on the diameter of the bullet. Within a given caliber, there are "specific calibers," such as .22-short, .22-long, and .22-long rifle. The .22-long rifle round is not exclusive to rifles; it is a very typical handgun round.
Yoshida examined the five .22-cartridge cases that were found at the crime scene. All five were .22-long rifle, and displayed a "U" head stamp, which was placed there by the manufacturer. Yoshida examined the cartridge cases under a low-powered microscope and noted that the firing pin impressions on all five were the same shape and had similar details, which gave her the impression that all five could have been fired from the same gun. She next performed "a comparison microscope examination," which allowed her to view two cases simultaneously. She found "some correspondence" with the extractor marks but not enough to for her to decide "one way or the other regarding what their association was." She then looked at the chamber marks and concluded that "[t]here was sufficient correspondence between the group of them" to determine that all five had been fired by the same firearm. She explained that chamber marks are created while the cartridge is sitting inside the chamber. "When the powder goes off . . . it's very hot and it causes the cartridge to expand. So it's pressing against the walls of the chambers and it's being pulled out. [¶] So what you get is marks that are length-wise with the cartridge . . . ." When examining the chamber marks, Yoshida looks at "striations," which, because of the tooling, are random. She looks "to see where they correspond to one another, that they're the same; the same place, the same location on the cartridge case, and . . . for ones that correspond in a row, like three or four that match in a row or more."
Yoshida examined two .22-caliber, long-rifle cartridge cases recovered near the diverting canal off of Main Street in Stockton where Bennett testified defendant had fired the handgun. Both had the "U" head stamp, similar firing pin impressions, and details that were consistent with the cases collected from the crime scene. Yoshida concluded that the two cases collected from the diverting canal were fired from the same gun as the cases collected from the crime scene.
These cases were two of a large number of cases given to Yoshida, but many of the others were corroded and Yoshida could not see them very well.
Yoshida examined defendant's handgun, which she described generally as a "J-22 firearm" and more specifically as a ".22 caliber long rifle pistol, handgun." She test fired the gun nine times into a large box filled with water, collected the bullets and cartridge cases, and compared them to each other to determine "how reproducible the marks are because I'm going to need to know that to be able to evaluate any further additional evidence . . . ." She explained that "they're never, ever going to be exactly the same marks every single time" and that "there are some firearms [that] are just not reproducible at all . . . ." Assuming the marks are reproducible, comparing the bullets and cases from the test fires also assists in determining "the amount of agreement between things, if there is agreement, what the amount is, if there's a whole lot or not very much." Yoshida determined that "there was sufficient agreement between the chamber marks and the extractor marks, that they were fired from the same firearm," and thus, determined the marks were reproducible. She then compared the cartridge cases from the test fires to those collected at the crime scene and the diverting canal and concluded that "in all practical certainty" they were all fired from defendant's gun.
Yoshida also compared the four bullets that were found in or underneath Dalene's remains with those that were test fired and found that while they had similar rifling characteristics, there was insufficient "other detail" for her to find that they were fired from the same gun.
On cross-examination, Yoshida explained that the phrase "all practical certainty" is equivalent to a feature "that is absolutely unique to one particular firearm." "It's like DNA. They have numbers. You can't match to one. They'll never say it is that person. It's always there's a one and 20 quad zillion chance it is. So practical certainty is what we call it."
Jim Cook testified as a "[w]ireless expert in the area of cellular phones." Cook reviewed the cellular records for defendant's and Dalene's cellular phones from the night of August 6 through midday on August 7, 2011. Among other things, Cook testified that the phone activity from Dalene's phone from 1:42 a.m. through 4:42 a.m. on August 7, 2011, was handled by the Claremont Avenue cellular tower which serviced defendant's home address. There was no call activity on Dalene's phone between 5:25 a.m. and 9:57 a.m. that could be mapped. At 9:57 a.m., Dalene's phone activity was serviced by a cellular tower in the Jack Tone Road area near Manteca. There was no activity on Dalene's phone from 9:57 a.m. to 11:03 a.m. At 11:03 a.m., phone activity from Dalene's phone was serviced by the 2303 West Lane tower in Stockton. The 11:25 a.m. text from Dalene's phone that stated "im walking home" was handled by the Claremont Avenue cellular tower that serviced defendant's residence and was not consistent with cellular services that would have taken place on Country Club Boulevard.
As for defendant's phone, Cook testified that at 6:04 a.m., 6:05 a.m., and 6:08 a.m. on August 7, 2011, defendant's phone connected with the cellular site located on North Walnut Avenue in Manteca. His phone made no connections from 6:13 a.m. to 9:57 a.m, indicating that it was either turned off or the battery had died. At 9:57 a.m., defendant's phone connected to a cellular site that serviced his residence. There was no indication defendant texted or called Dalene after 1:19 a.m. on August 7, 2011.
I
Statements Made by Defendant During the
August 14, 2011, Interview Were Properly Admitted
Defendant first contends that "[t]he trial court violated [his] fourteenth amendment right to due process when it admitted into evidence his involuntary pretrial recorded statements . . . made to Detectives Bradley Burrell and James Knief." We disagree.
Following his arrest on August 14, 2011, defendant was interviewed by Detectives Burrell and Knief. When asked about the night in question, defendant initially repeated the story he told to Detectives Lane and Knief several days earlier, namely that he left the bar alone after receiving a text from his grandmother telling him that his son was sick. Eventually, the detectives confronted defendant with "inconsistencies" in his story. They told him that he was in a "good position to help" himself, and that they did not want him to "waste this opportunity." They explained that it was okay if he could not recall "every minute" because such details could be gleaned from video surveillance, cell phone records, and receipts and advised him that "we know a lot of information." The detectives also stated that "sometimes things happen" and that "there's accidents." The detectives then told defendant, "[L]et's start over."
Defendant again stated that he left the bar about 1:00 a.m. and went home to check on his son after receiving a text from his grandmother. At that point, the detectives advised defendant that they had spoken to his grandmother and that she denied texting him on the night in question. Defendant then admitted that his grandmother had not contacted him and said that he had gone home on his own to be with his son. When asked who he left with, defendant again insisted that he left by himself and went home. Burrell asked, "Didn't make any stops, you stopped nowhere?" At that point, defendant admitted leaving the bar with Dalene, driving to Food-4-Less, and buying her a bottle of Jägermesiter, but said that he took her back to the bar before going home. When the detectives asked defendant why he would lie about such an important fact as having left with Dalene, he said that it slipped his mind.
The detectives told defendant that "[t]here's a whole lot more to this story," explained that they already knew the answers to the questions they had asked him, and urged him to think about his son. They said, "[W]e can make this work, we can make this okay, but you gotta be honest. Starting right now. Starting right now. Okay? Because otherwise this, your making decisions that will affect you forever." The detectives then asked defendant what else had slipped his mind, and defendant acknowledged texting Dalene and asking her for pictures. The detectives then explained that "we have a lot of resources" and "don't ask questions we don't know the answer to," and asked defendant, "[W]hat else do you want to change about your story? Help us help you, okay?" At that point, defendant admitted inviting Dalene to come back to his house and crash on the couch, but said he later changed his mind and took her back to the bar after buying her a bottle of alcohol at Food-4-Less. When asked why he lied about inviting Dalene back to his house, defendant said he was scared because he knew Dalene disappeared around the same time.
Shortly thereafter, the detectives advised defendant that they had reviewed hours of video surveillance from the bar and none of it showed him dropping Dalene off there. They told him that he needed to worry about his son and mother, who was "stressed out big time." Burrell then asked defendant a series of questions, "I assume you care about your son, right? You want to have him in your life, you want to be in his life, right? Jason, this is all bad dude, okay? And this was not something that was planned, okay? I know that, okay?" Burrell then urged defendant to "tell us about where you and Dalene went after Food 4 Less . . . because it wasn't to the bar . . . ." Defendant responded, "I'm really scared cuz I know when people are missing it looks like you guys are looking at me the last person that they were last with usually does something." Burrell replied, "Ok then be honest and stop lying." At that point, defendant admitted that he and Dalene had gone back to his house. He told the detectives, "We went back to my house, we drank a little bit and then she called and she started to walk off to go home. . . . I wasn't gonna let her walk all the way home, she had been drinking a lot um, so I got my grandmother's car and I got her at the corner of my house . . . . I know that it was off Charter Way so I was driving down, I believe, California Street or somewhere, and right before I got to Charter she jumped out of the car at the stoplight she got out." After discussing the route defendant took and where exactly Dalene had gotten out of the car, Burrell asked defendant, "So she jumped out of the car and you just left her?" Defendant responded, ". . . I didn't know what else to do, she was starting to be irate." Burrell told defendant that "there's still more to this" and that he needed to realize that "we have all sorts of crazy ways of getting phone records and this and that and the other, okay?" The detectives then implored defendant to "make it better" and "do the right thing." The discussion then turned to what was said when defendant and Dalene left defendant's house. Defendant said Dalene just wanted to go home, and he said he would take her home. The following exchange then ensued:
"Knief: Did you have sex?
"[Defendant]: No
"Knief: Jason
"Burrell: Jason
"Knief: Jason
"[Defendant]: Yes."
At the preliminary hearing, defendant moved to exclude his statements during the August 14, 2011, interview on the ground that the statements were not voluntary. The trial court denied the motion "at this point," noting that after reviewing the "testimony presented," it did not find "any offers of leniency, promises or reward, threats, any physical or psychological coercion that would rise to the level of making this statement involuntary." Defendant renewed his request in a motion in limine. The trial court denied the motion. After watching the DVD of the interview and reviewing the transcript of the same, the trial court found that the People had established by a preponderance of the evidence that defendant's statements were voluntary under the totality of the circumstances.
"An involuntary confession may not be introduced into evidence at trial," and "[t]he prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made." (People v. Carrington (2009) 47 Cal.4th 145, 169 (Carrington).) " ' "When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court's determination of voluntariness." [Citation.]' [Citation.]" (People v. McWhorter (2009) 47 Cal.4th 318, 346 (McWhorter).)
"In determining whether a confession was voluntary, '[t]he question is whether defendant's choice to confess was not "essentially free" because his will was overborne.' [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576.) " ' "In determining whether or not an accused's will was overborne, 'an examination must be made of "all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation." [Citation.]' [Citation.]" ' " (McWhorter, supra, 47 Cal.4th at p. 347.)
" 'It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, "[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.]' " (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
" 'Although coercive police activity is a necessary predicate to establish an involuntary confession, it "does not itself compel a finding that a resulting confession is involuntary." [Citation] The statement and the inducement must be causally linked. [Citation.]' [Citation.]" (McWhorter, supra, 47 Cal.4th at p. 347.) A statement is involuntary "only if the threat [or promise] actually induces defendant to make the statement. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 442 (Lucas).)
These same rules apply to all incriminating statements whether they be confessions in the strict sense or only admissions. (People v. Brommel (1961) 56 Cal.2d 629, 632 (Brommel), overruled on another ground by People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.)
Defendant contends that "[c]onsidering the totality of the circumstances . . . , his statements to the detectives, in which he changed his version of events on at least two occasions, were involuntary and should have been excluded." More particularly, defendant argues that by repeatedly using the word "opportunity" and the phrase "help yourself," and by telling defendant "we can make this work, we can make this okay, but you gotta be honest," the detectives implied that if defendant "told the detectives what they wanted to hear and changed his story to one that was more to their liking he would end up in a better position penologically."
The statements cited by defendant constituted general advice to tell the truth and fall far short of an implied promise of leniency in exchange for defendant changing his story. As set forth above, merely advising a suspect that it would be better to tell the truth, unaccompanied by either a threat or a promise, does not render a confession involuntary. (Holloway, supra, 33 Cal.4th at p. 115.) Defendant's assertion that "the idea that confessing to Dalene's murder presented an 'opportunity' was patently false" because "murder carries a fixed indeterminate term" ignores that the benefits of being truthful and honest extend beyond the length of the prison term imposed, and include things such as unburdening oneself. Indeed, comments that a defendant would feel better or would help himself by cooperating do not, by themselves, constitute improper inducements. (People v. Hill (1967) 66 Cal.2d 536, 549.) Moreover, "[n]o constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence." (Carrington, supra, 47 Cal.4th at p. 174.) This is effectively what the detectives did here by urging defendant to tell the truth while confronting him with "inconsistencies" in his story.
Defendant's reliance on Brommel, supra, 56 Cal.2d at page 632 and People v. McClary (1977) 20 Cal.3d 218, overruled on another ground in People v. Cahill, supra, 5 Cal.4th at pages 509-510, footnote 17, is misplaced. In Brommel, the defendant was arrested on suspicion of murdering his infant daughter. (Brommel, at p. 631.) After he denied the accusations against him, a police officer told him that the officer would write the word " '[l]iar' " on the police report if he did not change his story, and the judge would then not believe him because he will have been " 'branded as a liar.' " (Id. at p. 633.) The defendant subsequently confessed. (Id. at p. 634.) Our Supreme Court held that the confession was inadmissible because the officer's statement was both a threat and an implied promise of leniency. (Id. at pp. 633-634.) In McClary, the police interrogated the 16-year-old defendant about her involvement in a murder. (McClary, at p. 222.) After she denied any involvement, the police made statements that implied that the she would be charged as a principal to murder and would face the death penalty if she refused to admit her true involvement in the murder. (Id. at pp. 223-224.) Our Supreme Court held that the defendant's subsequent confession was "involuntary, a product of improper police threats and inducements . . . ." (Id. at p. 227.) In addition to making a direct and "partially false" threat, the interrogating officers "strongly implied that if defendant changed her story and admitted mere 'knowledge' of the murder, she might be charged only as an accessory after the fact." (Id. at p. 229.)
Unlike Brommel, the detectives' conduct in this case did not rise to the level of a threat or implied promise of leniency. To the contrary, the detectives in this case made it clear that they were only asking for the truth and never threatened to brand defendant a liar, much less communicate any information to the judge if defendant did not change his story. Unlike McClary, defendant was not warned that he may face the death penalty unless he acknowledged his involvement in the murder. Punishment was never discussed.
Defendant also contends that his statements were coerced by the detectives' exploitation of his love for his family. As defendant correctly notes, courts have condemned interrogations in which the police exploited a defendant's fear of losing his family to coerce a confession. (See Lynumn v. Illinois (1963) 372 U.S. 528 (Lynumn); United States v. Tingle (9th Cir. 1981) 658 F.2d 1332 (Tingle).) That was not the case here. At several points during the interview, the detectives urged defendant to think about his son and mother and said that his mother was "worried sick." They also asked defendant, "I assume you care about your son, right?" and "You want to have him in your life, you want to be in his life, right?" Defendant was never told that would not be able to see his son or any other family member if he did not cooperate. Rather, the detectives invoked defendant's family members in an effort to get defendant to tell the truth. The detectives' rhetorical question, "You want to have [your son] in your life, you want to be in his life, right," was followed by a statement urging defendant to "tell us about where you and Dalene went after Food 4 Less . . . because it wasn't to the bar . . . ." It was only after defendant explained that he was scared because he knew that when people are missing, the person "they were last with usually does something," and Detective Burrell responded, "Ok, then be honest and stop lying," that defendant admitted taking Dalene back to his house.
Lynumn and Tingle, cited by defendant, are distinguishable. In Lynumn, the United States Supreme Court found coercive a police officer's warnings to a defendant that if she did not cooperate, her government aid would be cut off and her children would be taken away. (Lynumn, supra, 372 U.S. at pp. 530-534.) In Tingle, the Ninth Circuit found the following warnings by an FBI agent to a bank robbery suspect "that a lengthy prison term could be imposed, that [she] had a lot at stake, that her cooperation would be communicated to the prosecutor, that her failure to cooperate would be similarly communicated, and that she might not see her two-year-old child for a while" were "patently coercive" when read together. (Tingle, supra, 658 F.2d at p. 1336, fns. omitted.) The court found that the objective of the interrogation was "to cause [the defendant] to fear that, if she failed to cooperate, she would not see her young child for a long time." (Ibid.)
Unlike Lynumn, defendant was never directly threatened with the loss of his son. That fact alone distinguishes the present situation. Unlike Tingle, defendant was never told that his cooperation or lack thereof would be communicated to the prosecutor, the judge, or anyone else. Potential punishment was never discussed. And defendant was never told that he would not or might not see his son for a while unless he cooperated.
To the extent defendant complains that the detectives' statements that "sometimes things happen" and "that's okay, there's accidents" were improper, he is mistaken. Such statements are permissible tactics, not coercive. (Carrington, supra, 47 Cal.4th at p. 171.)
Furthermore, assuming for argument's sake that the detectives' remarks could be construed as coercive, we would still find defendant's statements were voluntary. Having watched the DVD of the interview and reviewed the transcript of the same, it is clear to us that defendant's admissions were not induced by the challenged remarks, but rather were made in response to the detectives representation that they had could easily obtain evidence contradicting defendant's original version of events. Accordingly, the requisite nexus between the detectives' challenged statements and defendant's admissions is missing. (McWhorter, supra, 47 Cal.4th at p. 347; Lucas, supra, 12 Cal.4th at p. 442.) Defendant admitted that his grandmother did not text him after the detectives advised him that they had spoken to his grandmother who denied texting him on the night in question. Defendant admitted leaving the bar with Dalene after Burrell rhetorically asked, "Didn't make any stops, you stopped nowhere," implying that he knew otherwise. Defendant admitted taking Dalene back to his house after the detectives informed him that they had reviewed surveillance video from Finnegan's Bar and knew he did not take Dalene back there. Defendant admitted having sex with Dalene after Burrell told him that "there's still more to this" and "we have all sorts of crazy ways of getting phone records and this and that and the other," and both detectives were openly skeptical when he denied having sex with Dalene.
For all the foregoing reasons, we find that defendant's statements during the August 14, 2011, interview were voluntary.
II
Any Error in Admitting Defendant's Statement That He Had a
Fetish for Women's Underwear Was Harmless
Defendant next contends that the trial court abused its discretion in denying his motion to exclude his statement that he had a "fetish" for women's underwear because such evidence was not relevant to any disputed issue of fact and was highly prejudicial. We need not decide whether the trial court abused its discretion in admitting this evidence because any error was harmless.
Over defendant's objection, a portion of defendant's August 14, 2011, interview with the detectives was played for the jury in which the detectives brought up the fact that two pairs of women's underwear were found in defendant's bedroom. Defendant explained that one pair belonged to a woman named Christine, and the other belonged to a woman named Sarah. Later, the detectives questioned defendant about text messages sent from his phone to Dalene's several days before she went missing, in which defendant asked her to send him photographs of herself. Defendant told the detectives, "One I wanted for the context and the other one I was just being stupid and you guys found the underwear and I kinda have a fetish for that." (Italics added.)
After the DVD of the August 14, 2011, interview had been played for the jury, which included defendant's statement that he had a fetish for women's underwear, defendant moved for a mistrial on the ground that the trial court's pretrial ruling was based on the prosecutor's representation that there was evidence defendant alerted detectives to the presence of Dalene's underwear in his room, and no such evidence had been produced. The trial court denied the motion for a mistrial, noting that it would "stick with [its] original ruling . . . ."
Even assuming for argument's sake that the trial court erred in admitting evidence defendant had a fetish for women's underwear, reversal is not required unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.)
To the extent defendant contends the error was one of constitutional dimension, we disagree. Even if evidence should have been excluded under state law, its admission results in a due process violation only if it makes the trial fundamentally unfair. (People v. Merriman (2014) 60 Cal.4th 1, 70.) "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.' [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) For the reasons stated below, evidence defendant had a fetish for women's underwear was not of such quality that it necessarily prevented a fair trial.
Defendant's statement that he had a fetish for women's underwear was brief and part of a lengthy interview. The detectives conducting the interview did not follow up on it, and neither the prosecutor nor defendant's trial counsel mentioned the statement in their closing arguments. While the evidence was somewhat inflammatory, it was no more inflammatory than evidence defendant had two pairs of underwear belonging to two different women in his bedroom and had texted Dalene several days before she disappeared requesting photographs of her in her underwear. Finally, the evidence defendant murdered Dalene was strong. Surveillance video showed the two together outside a Food-4-Less early in the morning on the day Dalene went missing. Dalene told Jacob and James that she was going to defendant's house after leaving the bar to drink. Defendant admitted taking Dalene to his home and having sex with her that morning and said that after they had sex, she became upset and wanted to leave. According to defendant, Dalene called him "horrible" and "a piece of garbage" and said that she could not believe that he did "this." The ballistics expert concluded that "in all practical certainty" the cartridge cases found at the crime scene were fired from defendant's gun.
Defendant claims that the ballistics evidence was "equivocal" because "there is no singular, iron clad mark definitively showing that a particular casing was fired from a specific gun," and he established, through cross-examination, that the tools and grooves method of identification used by Yoshida had been criticized by the National Academy of Science. We are not persuaded. The absence of a "singular, iron clad mark definitively showing that a particular casing was fired from a specific gun" does not make the ballistics testimony equivocal. Yoshida testified that there will "never, ever . . . be exactly the same marks every single time" a firearm is discharged. She also explained that she takes a variety of marks into account in forming an opinion, most notably the firing pin, extractor, and chamber marks. Here, she found that the firing pin impressions on the cartridge cases from the test fires and those collected at the crime scene "matched very well," but acknowledged that "this is the type of tooling mark that could be reproduced," and thus the mark was not unique. She also found that "[t]here was sufficient correspondence [among the extractor marks] to say that it was the same tool," but explained that "you can . . . get an extractor mark without actually firing the gun" by loading the magazine, pulling the slide back, and having the intact cartridge being thrown out. After comparing the chamber marks, she concluded "[t]hat in all practical certainty" the cartridge cases found at the crime scene were fired from defendant's gun.
The criticisms raised by defendant's trial counsel during his cross-examination of Yoshida likewise did not render the ballistics evidence equivocal. During cross-examination, Yoshida was asked about a 2009 report published by the National Academy of Science that purportedly criticized tool mark and firearm examiners for not keeping "any sort of statistical error rates." Yoshida explained that "[t]here are error rates out there that have been published" and noted that each year her lab in Ripon participates in "proficiencies," whereby an outside vendor provides the lab with bullets and cartridge cases to examine and compare. According to Yoshida, "There's a right and wrong answer. And those answers are submitted back to the company" and published, and "people use that data in an attempt to determine error rates." Yoshida was also asked about the criticism that "there really isn't enough research done among individual guns to know, for example, variabilities of individual guns." Yoshida responded that there had been numerous studies examining instances where tools were manufactured one after the other and "people have still been able to identify cartridge casings and bullets from different guns, even though they're manufactured one after the other . . . ."
Having reviewed the entire record in this case, we reject defendant's assertion that the ballistics evidence was equivocal and find that there is no reasonable probability that defendant would have obtained a more favorable result had the jury not learned of his statement that he had a fetish for women's underwear.
III
The Trial Court Did Not Err in Denying Defendant's Motion for a Mistrial
Defendant next contends that the trial court abused its discretion in denying his motion for a mistrial based on prosecutorial error. We disagree.
Prior to trial, the prosecutor advised the trial court that the police had placed a ". . . GPS tracking monitor on the defendant's car. Now, the defendant was independently surveilled, but we also have . . . GPS coordinates on where he went. It's very prejudicial and probative, because the defendant kept circling the area which Ms. Carlson was ultimately found." The prosecutor explained that after the device was placed on defendant's car, the United States Supreme Court held that the government's attachment of a GPS tracking device to a defendant's vehicle and use of that device to monitor the vehicle's movements on public streets constitutes a search within the meaning of the Fourth Amendment and thus requires a warrant. (United States v. Jones (2012) 565 U.S. ___, ___ [181 L.Ed.2d 911, 949].) Because the police did not obtain a warrant prior to placing the tracking device on defendant's car, the prosecutor represented that he was "not introducing that evidence into court."
At trial, a series of witnesses testified concerning the efforts that had been made to locate Dalene after she was reported missing on August 8, 2011, including Detective Robert Faine and Officer Pauline Keener. Faine testified that he was present on August 20, 2011, when a canine search was conducted in "[t]he area of Calaveras around Pershing Avenue in the City of Stockton," and on August 27, 2011, when a canine search was conducted in Escalon in the area of Highway 120, Sexton Road, and Lone Tree Road. Faine also testified that Dalene's remains were found several weeks later on the other side of Lone Tree Road, approximately 75 feet from the road. Keener testified that on August 17, 2011, she and a dog trained in detecting human remains assisted in a search along the Calaveras River. She further testified that on September 2, 2011, she participated in a canine search near Jack Tone Road in Manteca.
Shortly after Keener testified, defendant's trial counsel moved for a mistrial. While far from clear, he appeared to argue that Faine's testimony that police searched an area near where Dalene's remains were later discovered would lead jurors to speculate that defendant "gave them some sort of information that the Court's not telling us about or we're not able to know about." Counsel explained, "The problem I have is that just sort of randomly out of nowhere, [on August 27, 2011,] the officers are searching 75 feet away from where the body was found on [October 15, 2011]." Counsel also reminded the court that a tracking device placed on defendant's car following his arrest on August 14, 2011, indicated that defendant's car travelled to the area that was searched on August 27, 2011, but that the prosecutor had represented that such evidence was inadmissible because the police did not have a warrant for the tracking device.
The prosecutor opposed the motion for a mistrial, noting that one could always make the argument that jurors will speculate. He pointed out that there was also testimony concerning searches of areas other than near where the remains were discovered, and that the same argument could be made with respect to these searches. He also explained that the purpose of the challenged testimony was to show that the police employed "all means possible" to locate Dalene during the 67 days she was missing.
The trial court denied the motion. In doing so, the court suggested that one way to address defense counsel's concern would be to ask Faine, "Did you go look in that location because of something that Mr. Gilley told you? The answer would be no." Defense counsel said he did not think the answer would be no "because indirectly that's why they went there." Thereafter, the prosecutor indicated that he would accept a limiting instruction that said something like, "You heard evidence that officers went to various locations, either with boat patrol or with dog evidence, and you're not to speculate why they went there, only that they did go there." Defense counsel did not request a limiting instruction, and none was given.
On appeal, defendant claims that "[e]vidence that the police searched the area near the location where Dalene Carlson's body was eventually discovered was inadmissible as derivative evidence of the illegal GPS tracking device search," and thus, the prosecutor erred in eliciting such evidence. In particular, he points to Faine's testimony regarding the August 27, 2011, search in Escalon in the area of Highway 120, Sexton Road, and Lone Tree Road, and its proximity to the area where Dalene's body was eventually found, and Keener's testimony regarding a September 2, 2011, search near Jack Tone Road in Manteca. Defendant argues that the introduction of such evidence was prejudicial because "the fact that the officers knew to search there, regardless of what they ended up finding, had the potential to cause the jurors to speculate that [the officers] must have learned the location from appellant and that appellant must have been the one to have murdered Dalene."
As a preliminary matter, the People contend that defendant forfeited his claim by failing to object in a timely fashion or request the trial court admonish the jury to disregard the impropriety. (People v. Valdez (2004) 32 Cal.4th 73, 122 [to preserve an issue of prosecutorial error for review, defendant must make a timely objection and request an admonition from the trial court].) More particularly, the People argue that defendant did not make any objection until well after the evidence was presented at trial and never requested that the jury be admonished to disregard the perceived error. They also note that defendant's motion for a mistrial was based solely on the testimony of Faine; no objection was made to the testimony of Keener. "As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial. [Citations.] However, a defendant's failure to object does not preclude review 'when an objection and an admonition could not cure the prejudice caused by' such misconduct, or when objecting would be futile. [Citations.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Here, defendant argues, "A limiting instruction only would have called attention to the matter more," and therefore, "[t]he only effective remedy would have been a mistrial." Assuming for argument's sake that (1) the tracking device, as opposed to independent surveillance or some other source, led the police to search the area near where Dalene's body was found, (2) evidence police searched the area near where Dalene's body was found weeks before it was found was inadmissible as fruit of the poisonous tree, and thus, the prosecutor erred in eliciting the challenged testimony, and (3) defendant did not forfeit his claim on appeal, the claim still fails because the introduction of the challenged evidence did not irreparably damage defendant's chances of receiving a fair trial (People v. Smith (2015) 61 Cal.4th 18, 52 [standard for grant of mistrial]) or so infect the trial with unfairness as to make the resulting conviction a denial of due process (id. at pp. 51-55 [federal standard for prosecutorial error]), and it is not reasonably probable defendant would have received a more favorable result had the error not occurred (People v. Riggs (2008) 44 Cal.4th 248, 298 [state standard for prosecutorial error]).
The challenged testimony was brief. The prosecutor did not argue or suggest that defendant led them to the area along Lone Tree Road, nor are we persuaded that the jury would have assumed that such was the case. There are a number of ways that the police could have come to search that location, including information from a witness who saw something on the morning in question, an anonymous tip, or cell phone records. Indeed, evidence was introduced that at 9:57 a.m. on August 7, 2011, Dalene's phone activity was serviced by a cellular tower in the Jack Tone Road area near Manteca. In any event, given the overwhelming evidence of defendant's guilt detailed above, it is not reasonably probable defendant would have received a more favorable result had the prosecutor not introduced evidence that police searched the area several weeks before Dalene's remains were discovered.
Because we have considered defendant's claim on the merits, we need not consider his alternative claim that his trial counsel was ineffective in failing to immediately object to the challenged testimony. --------
IV
The Trial Court Was Not Required to Instruct with CALCRIM No. 224
Defendant next contends that the trial court erred by failing in its sua sponte duty to instruct the jury in the language of CALCRIM No. 224 because the prosecution's case rested substantially on circumstantial evidence. We disagree.
The trial court did not instruct the jury with CALCRIM No. 224. Instead, as agreed to by the parties, the court instructed with CALCRIM Nos. 223 (general instruction on direct and circumstantial evidence) and 225 (use of circumstantial evidence to find requisite intent or mental state).
The trial court has a sua sponte duty to instruct with CALCRIM No. 224 "where the prosecution's case rests substantially on circumstantial evidence [citation], but it should not be given where the evidence relied on is either direct or, if circumstantial, is not equally consistent with a reasonable conclusion of innocence [citation]." (People v. Heishman (1988) 45 Cal.3d 147, 167 (Heishman); Bench Notes to CALCRIM No. 224 (2011) p. 56.)
We agree with defendant that the prosecution's case rested largely, if not entirely, on circumstantial evidence. As defendant points out, the prosecution's evidence included surveillance videos, defendant's admissions, and ballistics evidence. This circumstantial evidence, however, was not consistent with a reasonable conclusion of innocence, and therefore the trial court had no duty to instruct the jury with CALCRIM No. 224. (Heishman, supra, 45 Cal.3d at p. 167.) Surveillance video showed defendant and Dalene outside Finnegan's Bar at 1:15 a.m. Defendant admitted that after leaving the bar and purchasing a bottle of alcohol, he and Dalene went to his house, consumed the bottle of alcohol, and had sex. Defendant further admitted that after they had sex, Dalene became upset, left to walk home, and that he picked her up in his grandmother's car. Ballistics evidence indicated that the cartridge cases found at the crime scene were fired from defendant's gun.
On this record, the trial court was not required to instruct with CALCRIM No. 224. (Heishman, supra, 45 Cal.3d at p. 167.)
V
The Trial Court Did Not Err in Allowing Testimony to Be Read
Outside the Presence of Defendant and His Trial Counsel
Defendant next claims that the trial court committed reversible federal constitutional error when it overruled defense counsel's objection and allowed testimony to be read back to the jury when neither he nor his attorney was present. He is mistaken.
During deliberations, the jury requested a read back of Yoshida's testimony regarding ballistics. The trial court advised the parties that it intended to have the requested testimony read back to the jury. Defendant's trial counsel objected to the testimony being read back to the jury outside his or defendant's presence. The trial court overruled the objection, citing People v. McCoy (2005) 133 Cal.App.4th 974, 982 (McCoy) for the proposition that the United States Supreme Court "has never held that allowing a readback of a witness testimony outside of the presence of a defendant and his attorney is a violation of the Federal Constitution."
The trial court was correct. In McCoy, the Court of Appeal observed that the United States Supreme Court has never held that allowing a readback of witness testimony outside the presence of a defendant and his attorney is a violation of the federal constitution. (McCoy, supra, 133 Cal.App.4th at p. 982.) California Supreme Court decisions that have considered the issue have uniformly held there is no federal or state constitutional violation when a readback occurs outside the presence of a defendant or his attorney because the rereading of testimony is not a critical stage of the proceedings. (People v. Butler (2009) 46 Cal.4th 847, 865; People v. Cox (2003) 30 Cal.4th 916, 963, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Ayala (2000) 23 Cal.4th 225, 288; People v. Horton (1995) 11 Cal.4th 1068,1120-1121; see also People v. Pride (1992) 3 Cal.4th 195, 251 [no violation of a defendant's rights to counsel and due process even though "no one was present (the court, counsel, or defendant) to monitor or report the readback"].)
Defendant acknowledges that we are required to follow decisions of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but observes that the Ninth Circuit "has held that a criminal defendant has a right to be personally present at the read-back of testimony and this right must be enforced unless personally waived." (See, e.g., Fisher v. Roe (9th Cir. 2001) 263 F.3d 906, 917, overruled on another ground by Payton v. Woodford (9th Cir. 2003) 346 F.3d 1204, 1218, fn. 18; Shewfelt v. Alaska (9th Cir. 2000) 228 F.3d 1088, 1090-1091; Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 814-815, overruled on another ground by Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685.) "Even on federal questions, however, Ninth Circuit cases do not bind the state courts. (See People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)" (McCoy, supra, 133 Cal.App.4th at p. 982.) There was no constitutional violation.
VI
The Parole Revocation Fine Imposed Pursuant to
Section 1202.45 Must Be Stricken
Finally, defendant contends, and the People agree, that the parole revocation fine imposed in this case is unauthorized. The trial court imposed a $10,000 parole revocation fine pursuant to section 1202.45, which requires the court to impose such a fine "[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole." (Former § 1202.45, italics added.) Defendant was sentenced to life without the possibility of parole, plus 25 years. Accordingly, the parole revocation fine is unauthorized and must be stricken.
DISPOSITION
The parole revocation fine is stricken, and the judgment is affirmed in all other respects. The trial court is directed to amend the abstract of judgment by removing the parole revocation fine and to provide a copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Renner, J.