Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment and order of the Superior Court of San Bernardino County No. FBA009623, Thomas D. Glasser (retired judge of the San Bernardino S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Steven A. Mapes, Judges. Judgment against James Ruhollah Harrison affirmed. Judgment against Kwame Alusine Harrison affirmed as modified and remanded with directions.
NARES, J.
A jury convicted James Ruhollah Harrison (James) and his brother Kwame Alusine Harrison (Kwame) (together occasionally referred to as defendants) of the first degree murder of Mary Ann Jones (Jones) (count 2: Pen. Code, § 187, subd. (a)) and conspiracy to commit murder (count 3: Pen. Code, § 182, subd. (a)(1)). The jury also convicted James of solicitation of murder (count 1: Pen. Code, § 653f, subd. (b)).
We refer to some parties by their first names for purposes of clarity and intend no disrespect.
With regard to Kwame's first degree murder conviction, the jury found true an allegation that he personally and intentionally discharged a firearm (a handgun) causing Jones's death (Pen. Code, § 12022.53, subd. (d).)
The jury also found true allegations that the victim (Jones) was a witness to a crime, and James and Kwame intentionally killed her for the purpose of preventing her testimony in a criminal proceeding (Pen. Code, § 190.2, subd. (a)(10)).
In addition, Kwame admitted an allegation that he had suffered a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) as a result of his commission of an armed robbery with the use of a gun in Arizona.
The court sentenced James and Kwame each to an indeterminate state prison term of life without the possibility of parole for their first degree murder convictions. As discussed more fully, post, the court imposed additional indeterminate and determinate sentences. The court also imposed against each defendant a $10,000 parole revocation restitution fine under Penal Code section 1202.45.
James and Kwame appeal and together raise eight contentions. They jointly contend that (1) the court erred in denying James's motion to dismiss the case based on preaccusation delay and thereby violated their due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution; (2) the court abused its discretion under Evidence Code section 352 by admitting under section 1109 evidence that James choked his wife and thereby violated James and Kwame's federal constitutional right to a fair trial; (3) the court abused its discretion under sections 1101, subdivision (b) (hereafter section 1101(b)) and 352 by admitting evidence that James threatened to kill Alexis Beniquez in 2000 when he was 16 years of age and thereby violated James and Kwame's federal constitutional right to a fair trial; and (4) the court prejudicially erred by allowing the prosecution under the state-of-mind exception to the hearsay rule (§ 1250) to present evidence of a statement made by the victim (Jones) to Amber Mason the night before Jones's murder and thereby violated James and Kwame's federal constitutional right to a fair trial.
All further statutory references are to the Evidence Code unless otherwise specified.
Kwame and James also jointly contend (5) the court erred by instructing the jury under CALCRIM No. 362 (Consciousness of Guilt: False Statements); (6) the court erred by instructing the jury under a portion of the standard instruction on witness credibility, CALCRIM No. 226, and thereby violated their right to due process under the Fourteenth Amendment to the United States Constitution; and (7) the court erred by imposing a $10,000 parole revocation restitution fine under Penal Code section 1202.45 because they were sentenced to life without the possibility of parole.
Last, James and Kwame both contend that (8) the cumulative effect of the errors requires reversal of the judgments.
We modify the judgment against Kwame by striking the parole revocation restitution fine imposed under Penal Code section 1202.45. In all other respects, we affirm the judgments.
FACTUAL BACKGROUND
A. The People's Case
In 2002 James lived in an apartment complex in Barstow, California. James had a sexual relationship with Jones, who lived in the same apartment complex with her 15-year-old son.
All further dates are to calendar year 2002 unless otherwise specified.
On January 8, 2002 (hereafter the January 2002 incident), James and Jones argued after Jones bought $10 worth of marijuana from him, but only paid him $8. A physicial altercation between them ensued. Kwame was with James at that time. When James noticed he was missing $150, he returned to Jones's apartment and accused her of stealing the money. That evening, James fired a shotgun into Jones's apartment. Jones called the police and James was arrested. James told the police he fired the shot to scare Jones and because he wanted his money back.
On January 10, James was charged with attempted murder. In March, he pleaded guilty to shooting at an inhabited dwelling (Pen. Code, § 246), and he was later sentenced to a state prison term of seven years.
While he was in jail awaiting trial on the attempted murder charge, James made several recorded phone calls. In a phone call he made on January 17, James told Kwame he knew they were being recorded. Referring to Jones, James then told Kwame, "I'd a been had that bitch gone, " and "I ain't got the shit to get that bitch gone."
The next day, January 18, James called Kwame and asked him, "Did you do that?" Kwame asked James what he was talking about, and James replied, "Where is she at?" Kwame responded, "[D]on't talk about that, you know what I mean? You hear me?" James answered, "Yeah, " but told Kwame, "[Y]ou just better think about family." James then told Kwame he (James) was facing 13 to 17 years in prison because Jones said he tried to murder her. Shortly thereafter, Kwame told James, "She gonna be 187['ed] though." James asked, "What?", and and Kwame replied, "She gonna be 187 though, you hear me?" When James answered, "Yeah, " Kwame told him, "That's for you and... Little J, huh, you put yourself in that situation. Now I gotta do your dirty work, you know what I'm saying?"
Later during this January 18 telephone call, Kwame said, "So this phone thang, you know, it's scary, it's scary, it's scary, now." James replied, "Nah, this phone thing is more safer than the letters, " and said, "As long as you get that tooken [sic] care of then we don't have nothing else to say bad." Kwame replied, "... I'm a do it...." James immediately told Kwame to do it "[s]afely, " and Kwame replied, "And sly...."
In another phone conversation that same day, James referred to Jones and told Kwame that Kwame "shoulda told her right then and there[, ']You shouldn't have put my brother in that situation when you know you had his money." James then complained to Kwame, "Man I could have been out. You know all she had to do was to give me my money back." James indicated that the attempted murder case was "nothing without her." James stated, "[S]he played us nigga, she can't keep playing the Harrison's." In reply, Kwame said, "[L]ike I said, my process is started."
During a January 20 phone conversation, James told Kwame, "I'm go[ing] to trial." The following exchange between them followed:
"KWAME: What? Ahhhhhhhh.
"JAMES: That's the only way I could beat this.
"KWAME: Look man, I, man, what the pleas man, I can't, I man, I can't say, I can't man. Them trials....
"JAMES: You can't do it?
"KWAME: Do what?
"JAMES: What you are supposed to.
"KWAME: Yeah.
"JAMES: Okay. Then you don't have nothing to worry about."
During that same phone conversation, James also told Kwame that "[a]ctions speak louder than words" and that he was going to court on "the 19th." When Kwame told James "I'm telling you, " James responded, "Don't tell me, actions speak louder than words" James then asked Kwame, "Don't you want me free?" Kwame answered, "Don't push it like that. I told you that it's going down, didn't I?" Later in the conversation, James told Kwame, "Give her her bus ticket tonight, " and, "If that was you I'd a been already given her her bus ticket." After further conversation, James said, "All's I'm saying [is] just give her a Greyhound bus ticket, " and reminded Kwame that "[t]he 19th is around the corner." Kwame replied, "I'm telling you that's hard, " but then assured James, "It's gonna happen. You ain't got nobody else to put that way, you know what I mean, I'm telling you I got you, I got you." When James said, "[M]y big bro is supposed to handle that, " Kwame replied, "But you big bro is gonna handle that, I told you that...." James responded, "And your bro could be locked up for I don't know how long on the 19th."
At about 11:30 p.m. on February 7, Kwame went to Stephen Paiment's apartment in the same complex where James and Jones lived and said he was looking for his clothes. Paiment testified he saw Kwame walk toward Jones's apartment.
Wilma Proctor lived with Paiment and knew Jones. She knew James as "Spook" and Kwame as "Sinbad." Proctor indicated that on February 7, the night before Jones was found dead, Kwame came to her (Proctor's) apartment and wanted to know whether her son, Larenzo, had his clothes. Proctor told Kwame that Larenzo did not have them, and he (Kwame) should look for his clothes at Jones's house. Proctor indicated Jones had told her that she (Jones) was going to take Kwame's clothes because of a dispute over her taking his bicycle.
On February 8 Paiment heard loud voices and arguing and later, at about 2:00 or 3:00 a.m., a loud noise woke him from his sleep and scared him.
Amber Mason testified that at about 12:45 a.m. on February 8, she and a friend went to Proctor's apartment to check on Kwame. Kwame was not there, so they went to Jones's apartment to look for him. Mason asked Jones where Sinbad (Kwame) was. Over a defense hearsay objection that the court overruled, Mason testified that Jones told her that she (Mason) had missed Kwame by 20 or 30 minutes, but he would be back in the morning. Mason and her friend left Jones's apartment at about 3:30 a.m.
At around 1:00 or 2:00 p.m. on February 8, Jones's son woke up and found his mother on the floor of their apartment. He went to Proctor's apartment and asked for someone to check on his mother. Jones was dead. She died from a gunshot wound to the head that was fired from close range. A.38-caliber bullet was recovered from Jones's skull.
Johnny Torres testified that Kwame had asked him for a gun about one or two weeks before Jones's death.
Jason Jackson told police before Jones's death that Kwame told him he was going to kill Jones because of the incident involving James and Jones. Jackson also told police he saw Kwame with a.38-caliber gun before the murder.
Larenzo Proctor told police that he went to a WalMart with Kwame and Shawna Smith on January 20, and Kwame bought.38-caliber ammunition. Larenzo Proctor also told police he saw Kwame with a.38-caliber revolver, and Kwame told him he was going to kill Jones.
Shawna Smith told police that on or about February 1, she went to WalMart with Kwame and Larenzo Proctor, and Kwame purchased ammunition.
Carrie Slater testified that Kwame told her, before Jones was killed, that he needed to handle some "business" for his brother. When she asked him what kind of business, Kwame responded that his brother had been arrested for something, and Jones was the cause of it and she had to be dealt with. After Jones was murdered, Kwame told Slater, "It was beautiful, " and, "She didn't see it coming."
1. Evidence admitted under section 1101
Alexis Beniquez testified that she called the police on August 20, 2000 after James came to her residence and threatened to kill her. Beniquez told police James threatened to kill her because he believed she was responsible for calling the police after he was involved in a fight the night before.
In October 2000 the district attorney's office filed a juvenile delinquency petition against James because of his threat to kill Beniquez. The petition was eventually dismissed because Beniquez had not been properly served and had not shown up at the hearing.
2. Evidence admitted under section 1109
Katie Harrison testified she was married to James from 2002 to 2007. Shortly after James was released from prison, he choked her because he believed she was cheating on him. During that incident, James threatened to kill her with a knife.
B. James's Defense Case
James testified he sold drugs and brought his brother Kwame to Barstow from Phoenix in 2001 so that Kwame could help him with his drug business. James, who was 25 years old at the time of trial in this case, stated he met Jones when he was 16, and he became sexually involved with her. He stated he had "feelings" for Jones and wanted her out of Barstow; he did not want her dead. James explained that in the phone calls from jail, he was asking Kwame to get Jones out of town because she had a warrant out for her arrest and he believed the police would pick her up and keep her in custody. He stated he wanted to get her a bus ticket.
C. Kwame's Defense Case
Kwame testified he did not kill Jones and he never knowingly and intentionally agreed with James that he (Kwame) would kill her. He stated that when he said during the recorded phone calls that he would "187" Jones, he did not mean that he would "187 her"; and although he knew "187" means to murder someone, he meant he was going to "fuck [her] up."
Kwame indicated he asked Torres for a gun because he had gotten into a fight and needed protection. When Torres told him he had a.38-caliber gun, Kwame went to WalMart with Larenzo Proctor and Smith and purchased.38-caliber ammunition.
Kwame's sister testified that the.38-caliber ammunition found in her Ariznoa home belonged to her fiancé.
DISCUSSION
I. PREACCUSATION DELAY
James and Kwame first contend the court erred in denying James's motion to dismiss the case based on preaccusation delay, and thereby violated their due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution. In his written joinder, Kwame also contends "the delay in this prosecution rendered him unable to present one or more neutral witnesses from WalMart on the contested issue of what type of ammunition Kwame bought at WalMart." We conclude these claims are unavailing.
A. Background
1. Motion for dismissal of the charges based on preaccusation delay
In mid-April 2007, James filed a pretrial motion to dismiss the charges in this case on the ground the delay in prosecution for a period of about four years nine months─between Jones's February 8, 2002 murder and the November 17, 2006 filing of the criminal complaint─ prejudicially violated his due process rights under the federal and California Constitutions. Kwame joined the initial motion.
Without any supporting evidence, James claimed in his motion that (1) all of the evidence to be presented in this case was known to the prosecution by March 5, 2002, when he entered a guilty plea in the case that arose out of the 2002 incident in which he fired a shotgun into Jones's apartment; and (2) the delay in prosecution in the instant case was prejudicial because "all" of the evidence of the 2002 incident, including all of the taped interviews of James and other witnesses, had been destroyed and only police reports and some photos were left. James complained that the prosecution was using the 2002 incident to prove the charged crimes in the instant case, his counsel had no way of examining the evidence, memories of witnesses had faded, and unnamed witnesses had died or moved away to places unknown.
In written opposition to the motion, the People objected that James had failed to show any actual prejudice from the delay in prosecution because he failed to submit any declarations or affidavits in support of his allegations that memories of witnesses had faded, witnesses had died or moved away, and all of the evidence of the 2002 incident (except some photos) had been destroyed.
a. Court's ruling
In early June 2007, the court heard oral arguments on the preaccusation delay motion. James's counsel reiterated the arguments set forth in the written motion. Kwame's counsel stated he wanted to "reserve" on the motion to a later time to provide "declarations through my own private investigator what information has been lost." The People disputed the unsupported allegation that all of the evidence presented at the preliminary hearing in this case was known to the police and the prosecution at the time of James's plea on March 5 regarding the 2002 incident and asserted that most of the witness interviews happened after that date.
The Honorable Thomas D. Glasser.
The court indicated that the defense had the initial burden of making a prima facie showing of prejudice and once the defense met that burden the court would hear the prosecution's justification (if any) for the delay in prosecution and then weigh the prejudice against the justification to arrive at a decision on the motion.
The court then denied the preaccusation delay motion without prejudice, finding that the defense had not met its burden of making a prima facie showing of prejudice and that the due process claims were speculative and premature. The court stated that the motion could be "renewed... after the trial when the [court] is in a perfect position to tell whether the defense has been deprived of anything, whether the defense has suffered any prejudice...."
2. Posttrial renewal of the preaccusation delay motion and the prosecution's justification for the delay
The jury returned its verdicts in December 2008.
On January 21, 2009, before the court sentenced him, James renewed his preaccusation delay motion to dismiss the case. James's counsel again maintained that the delay of about five years between James's guilty plea in March 2002 to the charge of shooting at an inhabited dwelling during the January 2002 incident, and the filing of the criminal complaint in the instant case at the end of 2006, was prejudicial because the guilty plea was used against James in the current case. Defense counsel also complained that the prosecution knew on March 5, 2002, when James's guilty plea was taken, that this murder case was pending, but did not inform the court about it, and this was "not a nice thing to do, to say it politely."
The Honorable Steven A. Mapes.
The prosecutor responded by indicating that this murder case had not yet been filed when James entered his guilty plea on March 5, 2002 in the 2002 incident case, but he was a suspect at that time. He argued that several of the witnesses against James did not come forward until after he entered his guilty plea in March 2002, and the investigating detective, Barstow Police Department Detective Leo Griego, did not listen to James's recorded telephone calls from jail until 2004. The prosecutor also argued that the ballistics evidence was not done until after James entered his guilty plea, and the prosecution had no "improper motive" and was merely trying to gather evidence and "conduct a thorough investigation."
The felony complaint in the instant case was filed on November 17, 2006, more than four years eight months after James pleaded guilty in the 2002 incident case in early March 2002.
a. Court's ruling
The court indicated that although it did not know why the prosecution took more than four years, until November 2006, to file the charges in this case, it was not sure that the delay caused any actual prejudice. The court stated that it gave "a great deal of weight" to the prosecutor's explanation regarding his "need to thoroughly investigate the case" and "not blow any leads they ha[d] by prematurely filing [charges] against [James] when they [were] still looking for the shooter." The court added, "I think there is some law enforcement privilege... to make sure they get everything right before they file [charges] and lose leads and possibly lose another suspect."
The court then denied the preaccusation delay motion for the following reasons:
"[B]ased on the totality of the evidence that came in, I don't think that any prejudice that resulted from presenting the plea or what had happened in the prior case resulted in any actual prejudice to [James] in the course of the trial because[, ] for example, the tapes were pretty conclusive, the other witnesses were pretty conclusive, [and therefore] that plea agreement... did not tip the scales against [James]. It was additional information, but... if I were to take away that plea bargaining agreement, I think the result of the trial would have been the same because of what the witnesses testified to, because of what the tapes... were, and probably even [because of] both defendants['] own trial testimony."
B. Applicable Legal Principles
"[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence." (People v. Martinez (2000) 22 Cal.4th 750, 767.)
"Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions, " but "[a] defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay." (People v. Catlin (2001) 26 Cal.4th 81, 107.)
In People v. Mirenda (2009) 174 Cal.App.4th 1313 (Mirenda), this court recently explained that the determination of whether preaccusation delay resulted in a denial of due process involves a three-step analysis. First, the defendant has the initial burden of showing actual prejudice from the preaccusation delay. (Id. at p. 1328.) Such prejudice may be shown by loss of material witnesses due to lapse of time or loss of evidence because of fading memory attributable to the delay. (Ibid.) "The overarching theme is that the loss of such evidence, especially where the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible for the defendant to prepare a defense thus showing prejudice." (Ibid.)
Second, if the defendant has met his or her burden of showing actual prejudice from the preaccusation delay, the burden shifts to the prosecution to justify the preaccusation delay. (Mirenda, supra, 174 Cal.App.4th at p. 1329.)
Last, the trial court balances the harm to the defendant against the justification for the delay. (Mirenda, supra, 174 Cal.App.4th at p. 1329.) Even a minimal showing of actual prejudice may require dismissal if the proffered justification for the preaccusation delay is insubstantial; by the same token, the more reasonable the delay, the greater the prejudice the defense must show to require dismissal. (Id. at p. 1327; see also People v. Conrad (2006) 145 Cal.App.4th 1175, 1185; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 915.) However, the trial court need not engage in the balancing process if the defendant has failed to meet his or her initial burden of showing actual prejudice since there is nothing against which to weigh such justification. (Mirenda, supra, at pp. 1327-1328.)
In People v. Nelson (2008) 43 Cal.4th 1242 (Nelson), the California Supreme Court explained that "[t]he state and federal constitutional standards regarding what justifies delay differ" and, although "the exact standard [for due process violations] under [the federal] Constitution is not entirely settled[, i]t is clear... that the law under the California Constitution is at least as favorable for the defendant in this regard as the law under the United States Constitution." (Id. at p. 1251.) Nelson concluded that "under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process." (Id. at p. 1255; Mirenda, supra, 174 Cal.App.4th at p. 1328.) However, a due process violation " 'claim based upon the federal Constitution also requires a showing that the [preaccusation] delay was undertaken to gain a tactical advantage over the defendant.' " (Nelson, supra, 43 Cal.4th at p. 1251.)
The Nelson court also observed that "whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Nelson, supra, 43 Cal.4th at p. 1256.)
1. Standard of review
"Whether preaccusation delay is unreasonable and prejudicial to a defendant is a question of fact" (Mirenda, supra, 174 Cal.App.4th at p. 1330), and on appeal we uphold the trial court's ruling or decision on a motion to dismiss based on such delay if it is supported by substantial evidence. (Ibid.) Substantial evidence is "evidence which is reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We may affirm "the trial court's decision without embracing its reasoning." (Mirenda, at p. 1330, italics omitted.)
C. Analysis
James contends he was actually prejudiced by the almost five-year preaccusation delay because a potential witness─Tom Evans─died, and Evan's death "destroyed a third-party culpability defense." In support of this contention, he relies on the testimony of Daniel Morris (discussed, post), who stated at a section 402 hearing on October 29, 2008, that he told Detective Griego that Jones owed a person named Zach, a drug dealer, a lot of money for drugs, and Zach and Jones had an argument at her house in December 2001 or January 2002. Morris testified he also told Detective Griego that Evans paid Zach some money so that Zach would not "beat up" Jones. When the court asked Morris how he knew that Evans paid Zach so that Zach would not beat up Jones, Morris replied, "Because [Evans] told me." As James points out, the court found that Evans's statement to Morris was hearsay without an exception, and the evidence was too vague to be admitted.
Following Morris's testimony, the prosecutor informed the court that Evans "passed away this past week."
James thus claims he was prejudiced by the prosecution's preaccusation delay because, absent the delay, Evans could have provided "vital defense evidence" that he (Evans) had paid Zach, a drug dealer, to prevent Zach from beating up Jones shortly before Jones's murder. James also claims such evidence "that another person, who was completely separate from [James], and who was involved in drug activities, wanted to harm Jones very shortly before her murder would likely have created reasonable doubt that Kwame killed Jones." James further contends the court erred in analyzing the preaccusation delay in that "there was actual prejudice, the loss of relevant evidence because of the passage of time and Evans's death, which required the court to take the next step of hearing the prosecution's justification for the delay, and then balancing the prejudice against the justification." He then claims that, "[d]ue to the trial court's error in finding no prejudice, the court failed to take the remaining necessary steps in evaluating the delay" because it failed to "hear[] the prosecution's justification for the delay, and then balanc[e] the prejudice against that justification."
1. Forfeiture
As a preliminary matter, we note that the Attorney General asserts that James forfeited this claim by failing to raise in the trial court the issue of the question of whether he was prejudiced by the preaccusation delay as a result of Evans's death. On appeal, James acknowledges that "defense counsel did not specifically argue the loss of defense evidence due to Evans's death." The Attorney General also asserts Kwame forfeited any right to raise his joinder claims on appeal because he never joined in the posttrial litigation.
We reject the Attorney General's forfeiture arguments. "An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party." (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) In the exercise of discretion, we reach the merits of James's and Kwame's claims.
2. Merits
Having decided to reach the merits of defendants' claims, we reject them for several reasons. First, as already noted, James points to Evans's death as support for his claim that the court erred in finding no prejudice. However, as also noted, ante, he acknowledges the defense did not argue in the trial court that Evans's death resulted in a loss of defense evidence.
Second, even if Evans had survived and repeated at trial the testimony he gave at the section 402 hearing, his testimony that someone wanted to beat up Jones does not support an inference that the same person went to Jones's apartment and shot her in the head at close range.
Third, James's claim that the court erred in analyzing the preaccusation delay by "fail[ing] to take the remaining necessary steps in evaluating the delay" is unavailing. The record shows the court did take the remaining steps of (in James's words) "hearing the prosecution's justification for the delay and then balancing the prejudice against that justification." As noted, ante, the prosecutor argued that several of the witnesses against James did not come forward until after he entered his guilty plea in March 2002, Detective Griego did not listen to James's recorded telephone calls from jail until 2004, the ballistics evidence was not done until after James entered his guilty plea, and the prosecution was merely trying to "conduct a thorough investigation."
The record also shows the court then weighed the defense claim of prejudice against the prosecution's justification for the delay. The court specifically stated it gave "a great deal of weight" to the prosecutor's explanation regarding his "need to thoroughly investigate the case" and "not blow any leads they ha[d] by prematurely filing [charges] against [James] when they [were] still looking for the shooter." In conducting the requisite balancing, the court correctly pointed out that "there is some law enforcement privilege... to make sure they get everything right before they file [charges] and lose leads and possibly lose another suspect." The California Supreme Court has explained that "[a] prosecutor is entitled to reasonable time in which to investigate an offense for the purpose of determining whether a prosecution is warranted and also in preparation of a case for submission to the grand jury." (Nelson, supra, 43 Cal.4th at p. 1254, quoting People v. Archerd (1970) 3 Cal.3d 615, 640.) In Nelson, our high state court admonished that "[a] court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges, " and explained that "'[t]he due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment.... Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt.... A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.' " (Nelson, supra, 43 Cal.4th at p. 1256.) The Nelson court also admonished that "[a] court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case." (Ibid.) We conclude the court properly weighed the prosecutor's justification for the delay.
Fourth, substantial evidence supports the court's determination that the defense showing of prejudice did not outweigh the prosecution's justification for the delay. As a result of its thorough investigation, the prosecution presented overwhelming evidence that Kwame shot Jones at James's request. Among the most incriminating items of evidence, which the court cited in its ruling, were the recordings of the telephone conversations between James and Kwame. The transcripts of those conversations, discussed in greater detail, ante, in the factual background of this opinion, show that during one conversation, on January 18, James told Kwame that he (James) was facing 13 to 17 years in prison because Jones said he tried to murder her, and, shortly thereafter, Kwame twice told James, "She gonna be 187['ed] though." When James answered, "Yeah, " Kwame replied, "Now I gotta do your dirty work, you know what I'm saying?" At trial, Kwame admitted he knew that "187" means to murder someone. In another phone conversation, on January 20, James asked Kwame, "Don't you want me free?" Kwame answered, "Don't push it like that. I told you that it's going down, didn't I?"
The jury also heard evidence that Jason Jackson told police that Kwame told him he was going to kill Jones because of the incident involving James and Jones, and Jackson also told police he saw Kwame with a.38-caliber gun before the murder.
The jury also heard testimony that Larenzo Proctor told police he went to a WalMart in Barstow with Kwame and Shawna Smith on January 20, and Kwame bought.38-caliber ammunition; that Larenzo told police he saw Kwame with a.38-caliber revolver, and that Kwame told him he was going to kill Jones. It is undisputed that a.38-caliber bullet was recovered from Jones's skull.
Fifth, nothing in the record suggests the prosecutorial delay challenged here was intentional or served the purpose of gaining an advantage over the defense. We conclude the "[t]he delay was investigative delay, nothing else." (Nelson, supra, 43 Cal.4th at p. 1256.)
Last, Kwame's joinder contention that prosecutorial delay rendered him unable to present one or more neutral witnesses from WalMart on the contested issue of what type of ammunition he bought at WalMart is unavailing. Kwame complains that, "by the time these charges were filed and [his] counsel was preparing his defense, the WalMart employee or employees involved in the sale no longer worked there and could not be located by the defense." In light of the overwhelming evidence of Kwame's guilt, we conclude his joinder claim of prejudice is insubstantial. It is also meritless, as the trial transcript shows Kwame admitted on cross-examination that he bought.38-caliber ammunition at WalMart.
For all of the foregoing reasons, we conclude substantial evidence supports the court's decision, and we find no due process violation.
II. ADMISSION OF EVIDENCE THAT JAMES CHOKED HIS WIFE
James and Kwame also contend the court abused its discretion under section 352 by admitting under section 1109 evidence that James choked his former wife, Katie, and thereby violated their federal constitutional right to a fair trial. We reject this contention. We also conclude that Kwame forfeited his joinder claim that this evidence was "indirectly prejudicial" to him.
A. Background
The prosecution moved in limine to present under section 1109 evidence relating to two incidents of domestic violence─one in 2005, and the other in 2006─that involved James's former wife, Katie. The court ruled that the 2005 incident, in which James choked Katie and then threatened to kill her because he believed she was cheating on him, was admissible because it "may show [James had] a propensity to do harm to people he's in intimate relationships with; that he feels some sort of privilege to do that because of the nature of the relationship." The court noted the jury "could use that information in deciding whether or not he had an intent to do the same sort of thing" in the instant case.
Regarding the 2006 incident, in which James forced Katie to have sex with him in a women's public restroom, the court excluded the evidence of that incident, finding the prejudicial effect of the evidence outweighed its probative value.
At trial, Katie testified that James accused her of cheating on him and began to choke her in bed. When their baby awoke, James stopped, but then got a knife and told Katie he was going to kill her and then kill himself. Katie stated she did not call the police because she was scared.
B. Applicable Legal Principles
"[S]ection 1109 allows the introduction of evidence of [a] defendant's commission of prior acts of domestic violence in a criminal action charging [the] defendant with an offense involving domestic violence." (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Specifically, subdivision (a)(1) of section 1109 provides in part (with exceptions not applicable here):
"[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
The term "domestic violence" is broadly defined for the purposes of section 1109 as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b); Evid. Code, § 1109, subd. (d)(3).)
For the same purposes, the term "abuse" is defined as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a); see also Evid. Code, § 1109, subd. (d)(3).)
Section 1109 creates an exception to the general rule codified in section 1101, subdivision (a) precluding admission of uncharged misconduct to show that the defendant had a propensity to commit crimes. (§ 1109, subd. (a)(1); see also People v. Johnson (2000) 77 Cal.App.4th 410, 417.)
The trial court has discretion to exclude evidence of prior acts of domestic violence if the probative value is substantially outweighed by the probability its admission would necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (§§ 1109, subd. (a)(1), 352, subd. (a).)
In assessing whether evidence is unduly prejudicial within the meaning of section 352, the question is whether the evidence "tends to evoke an emotional bias against the defendant with very little effect on issues...." (People v. Crew (2003) 31 Cal.4th 822, 842.)
1. Standard of review
"The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, [and the exercise of that discretion] will not be disturbed on appeal absent a showing of an abuse of discretion." (People v. Poplar, supra, 70 Cal.App.4th at p. 1138.) We review the trial court's ruling under section 352 for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637 (Lewis)) and will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez).)
C. Analysis
In support of his claim that the court abused its discretion under section 352 by admitting under section 1109 evidence that he choked Katie, James contends that "the 2005 domestic violence incident and the charged crimes are so dissimilar as to make the 2005 incident completely irrelevant to proving any pertinent fact in the current case." We reject this contention. The court properly found the 2005 incident was "very similar" to the instant case in that "the notion of being betrayed is the same." We agree with the court's analysis that "this comes down to the idea and notion of betrayal and a person's reaction when they are betrayed. And that's... what's similar... between [Jones's] case and the first instance as alleged by [Katie]." This common factor strongly suggests that James has a propensity to commit violence against intimate female partners when he feels rejected or betrayed by such partners.
James also contends the 2005 incident is dissimilar because it involved an "intimate act of abuse perpetrated by [James] himself" in which he choked his wife while they were lying in their bed. He asserts the charged crime in the instant case "had nothing domestic about it" because "[a] calculated killing from the safety of a jailhouse, executed by someone else, involves none of the hallmarks of domestic violence."
These contentions are meritless. As pertinent here, the term "domestic violence" is statutorily defined for the purposes of section 1109 as "abuse committed against an adult... who is a... person with whom the suspect... is having or has had a dating... relationship." (Pen. Code, § 13700, subd. (b); Evid. Code, § 1109, subd. (d)(3).) The evidence shows, and there is no dispute, that James had a dating sexual relationship with Jones James testified at trial that "[he] was sexually involved with her." The recorded phone conversations show that James, while in custody, conspired with Kwame to murder Jones. James does not explain how his act of conspiring to murder a woman with whom he had a sexual dating relationship is legally excluded from the foregoing statutory definition of "domestic violence" because his coconspirator, Kwame, and not he, fired the gun that took Jones's life.
In support of his claim that the 2005 incident was "far more prejudicial than probative" for purposes of section 352, James also contends "the fact that the 2005 incident occurred after Jones was killed in 2002 serves to make the 2005 incident less probative." (Italics added.) However, as the Attorney General points out, the only time limitation mentioned in section 1109 is set forth in subdivision (e), which provides that "[e]vidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice." We conclude the fact that the 2005 domestic violence incident occurred after Jones's murder in 2002 does not diminish the probative value of the evidence of the 2005 incident. (See People v. Medina (2003) 114 Cal.App.4th 897, 903 [holding that "evidence of subsequently committed sexual offenses may be admitted pursuant to... section 1108, " an analogous statute that governs the admissibility of evidence that a defendant charged with a sexual offense committed one or more other sexual offenses].)
James also contends the court abused its discretion by admitting evidence of the 2005 incident because, "[g]iven the highly inflammatory nature of the acts of domestic violence [Katie] described, it would be natural for the jury to want to punish [him] for these crimes and keep him imprisoned." This contention is unavailing because the evidence of the 2005 choking incident was not so inflammatory that the jury likely based their verdicts not on the evidence presented as to the charged offenses, but rather on an emotional response to James's commission of the subsequent act of domestic violence. (See People v. Crew, supra, 31 Cal.4th at p. 842.)
For the foregoing reasons, we reject James and Kwame's contention that the evidence of the 2005 domestic violence incident was inadmissible under section 352. Accordingly, we also reject their claim that the court's admission of this evidence "rendered [their] trial fundamentally unfair."
In his joinder, Kwame also contends the admission of the evidence of the 2005 choking incident was "indirectly prejudicial" to him because "the prosecution's theory that Kwame was guilty was based on the foundation that the motive for the offenses came from James and [the] prior bad act by James thus helped to prove Kwame's guilt by reinforcing the notion that James was the sort of person who would have recruited Kwame to kill [Jones]." The Attorney General argues that "Kwame has forfeited his right to raise this claim on appeal... because he did not object to the admission of the evidence at trial."
A defendant who fails to make a timely objection or a timely motion to strike evidence on a specific ground in the trial court forfeits the right to claim on appeal that the court's admission of the evidence on that ground was erroneous. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) Kwame does not contest that he failed to object at trial. We conclude Kwame forfeited this joinder claim.
III. ADMISSION OF EVIDENCE THAT JAMES THREATENED BENIQUEZ
James and Kwame also claim the court abused its discretion under sections 1101(b) and 352 by admitting evidence that James threatened to kill Alexis Beniquez in 2000 when he was 16 years of age, and thereby violated their federal constitutional right to a fair trial. We reject these claims.
A. Background
The prosecutor filed a motion in limine seeking leave to introduce under sections 1101(b) and 352 evidence of an incident that occurred on August 20, 2000, in which James became upset with Beniquez because he believed she called the police the previous night regarding a fight, poured gasoline on her arm and on her front yard fence, and said, "I'll kill you and burn down your house, I have nothing to lose bitch." In support of the motion, the prosecution argued that a juvenile delinquency petition filed against James as a result of the incident was dismissed when Beniquez failed to appear in court after being subpoenaed by mail. The prosecution also argued that during a recorded February 4, 2002 conversation in jail with his then girlfriend, Katie, James reminded Katie that he got out of custody on a prior case because the victim did not show up in court. The prosecution further asserted that it "intend[ed] to use evidence of this act to prove [James's] motive in soliciting, conspiring, and encouraging the commission of murder of [Jones] as well as [James's] intent when making those statements, and [James's] knowledge that a case is substantially weakened by an absent victim."
After hearing the parties' arguments, the court balanced the probative value of the evidence against its prejudicial effect and ruled that the evidence showing James poured gasoline on Beniquez's arm and threatened to burn down her house was unduly inflammatory, but that it would allow the evidence that James threatened to kill Beniquez under the theory the evidence of that death threat was relevant to prove James's motive and intent in the instant case because it indicated a pattern of retaliating against women who called the police on him, and the probative value of that evidence was not outweighed by its prejudicial effect.
At trial, Beniquez testified that in 2000 James angrily threatened to kill her, saying, "I will kill you, I have nothing to lose, " and chased her as she ran to a neighbor's house to call the police. Beniquez testified she was scared at the time and was still scared as she was testifying.
Barstow Police Officer Andrew Ellis testified he responded to the scene on August 20, 2000, and interviewed Beniquez, who reported James's threats and told him James was upset because he believed she was responsible for calling the police on him the night before regarding a fight that had occurred in the area.
Lily Sinfield, the prosecutor who filed the juvenile petition against James in October 2000 based on the August 20, 2000 incident, testified she had to dismiss the case without prejudice due to lack of personal service on Beniquez, who did not appear in court to testify.
The court in the instant case instructed the jury it could consider the evidence that James committed another offense that was not charged in this case, but only as to motive and intent, and in evaluating that evidence the jury was to consider the similarity or lack of similarity between the uncharged offense and acts and the charged offenses and acts.
B. Applicable Legal Principles
Evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (§ 1101, subd. (a).) However, evidence of other crimes or misconduct by a defendant is admissible to prove a fact (e.g., motive, intent, absence of mistake or accident) other than a disposition to commit such acts (§ 1101(b)) and may be admissible to negate a claim of good faith belief or other innocent mental state. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
Section 1101(b) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Italics added.)
Similarity between the charged and uncharged offenses is often a factual predicate necessary to "bridge the gap between other crimes evidence and the material fact sought to be proved." (People v. Thompson (1980) 27 Cal.3d 303, 319, fn. 23, disapproved on another ground in People v. Rowland (1992) 4 Cal.4th 238, 260.) For evidence of uncharged crimes to be admissible under section 1101(b) to prove such facts as identity, common design or plan, motive, or intent, the charged and uncharged misconduct must be "sufficiently similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) The least degree of similarity is required to prove intent. The uncharged misconduct need only be sufficiently similar to support the inference that the defendant probably harbored the same or similar intent in each instance. (Ewoldt, supra, 7 Cal.4th at p. 402; see People v. Memro (1995) 11 Cal.4th 786, 864-865 [defendant's uncharged conduct of possessing child pornography admissible to show intent to molest young boy].)
If the trial court determines that uncharged misconduct is admissible under section 1101(b), it must then determine whether the probative value of the evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, confusing the issues, or misleading the jury. (Ewoldt, supra, 7 Cal.4th at p. 404; § 352.)
We review the trial court's rulings under sections 1101 and 352 for an abuse of discretion (Lewis, supra, 25 Cal.4th at p. 637) and will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
C. Analysis
We conclude the court did not abuse its discretion under sections 1101 and 352 in allowing the prosecution to present the evidence showing James threatened to kill Beniquez in 2000. James claims that for purposes of section 1101(b), the evidence of the Beniquez incident was not sufficiently similar to the offenses charged in the instant case to support an inference that he probably harbored the same intent in each instance. He asserts that "the fact that [he] threatened Beniquez sheds no light on whether he had the requisite intent to have Jones killed because the intent to threaten is entirely different from the intent to kill." James also maintains that the court's rationale for admitting the evidence─retaliation─is "not a relevant component of the intents necessary to prove any of the charged offenses in this case."
These claims are unavailing. As already discussed, for evidence of an uncharged crime to be admissible under section 1101(b) to prove such facts as intent or motive, the charged and uncharged misconduct must be "sufficiently similar to support a rational inference" of such material facts (People v. Kipp, supra, 18 Cal.4th at p. 369) and because the least degree of similarity is required to prove intent, the uncharged misconduct need only be sufficiently similar to support the inference that the defendant probably harbored the same or similar intent in each instance. (Ewoldt, supra, 7 Cal.4th at p. 402; see People v. Memro, supra, 11 Cal.4th at pp. 864-865.) Here, James's uncharged act of threatening to to kill another woman (Beniquez) because he believed she had reported him to the police is sufficiently similar to the offenses he allegedly committed in this case to support an inference that in this case he probably harbored the same or similar intent, the intent to solicit Kwame to kill Jones because she had reported James to the police in January 2002.
James also claims the evidence of the Beniquez incident was inadmissible under section 1101(b) to prove motive because "there was no nexus or connection at all" between the 2000 Beniquez incident and Jones's 2002 murder and asserts that "[he] was not motivated to kill Jones by anything related to Beniquez." This claim is also unavailing. As the court properly noted when it gave its tentative ruling, James "kn[e]w how the system works" and knew that "[i]f a witness is not available a case can be dismissed." Evidence of the Beniquez incident was relevant to the issue of whether James, who was in custody facing prosecution for the January 2002 incident at the time of Jones's murder, was motivated to solicit Kwame to kill Jones before the trial so that the charges would be dismissed.
We also reject James's claim that the court abused its discretion under section 352 by admitting evidence that James threatened to kill Alexis Beniquez in 2000. The record shows the court carefully balanced the probative value of the Beniquez incident against any prejudicial effect it might have. The court properly excluded as unduly inflammatory the proferred evidence that James poured gasoline on Beniquez's arm and her fence and threatened to burn down her house. The court stated to defense counsel that "if you were to sanitize" the "gasoline portion" of the evidence, "then that prejudicial effect would be significantly reduced, " and if the court did not exclude that portion of the evidence, "the prejudicial effect would outweigh the probative value." We conclude the court did not abuse its discretion under section 352 by allowing Beniquez to testify about James's 2000 threat to kill her. There was nothing heinous or particularly inflammatory about this portion of the evidence related to the Beniquez incident that would tend to impermissibly "evoke an emotional bias against the defendant with very little effect on issues..." (see People v. Crew, supra, 31 Cal.4th at p. 842), and thus this evidence was not of such a nature that it would tend to inflame and motivate the jury to use it to punish James.
Because we conclude the court did not abuse its discretion under sections 1101(b) and 352 by admitting evidence that James threatened to kill Alexis Beniquez in 2000, we also conclude the admission of that evidence was not a violation of James and Kwame's federal constitutional right to a fair trial.
IV. HEARSAY (JONES'S STATEMENT TO AMBER MASON)
James and Kwame next contend the court prejudicially erred by allowing the prosecution under the state-of-mind exception to the hearsay rule (§ 1250) to present evidence of a statement made by the victim (Jones) to Amber Mason the night before Jones's murder, and thereby violated their Sixth Amendment right to confront witnesses and their Fourteenth Amendment right to a fair trial. We conclude the court did not err.
A. Background
During the People's case-in-chief, Mason testified that at about 12:45 a.m. on February 8, she and her friend Coco went to Proctor's apartment to check on Kwame. She indicated that, as Kwame was not there, they went to Jones's apartment to look for him.
The prosecutor asked Mason, "When you went to [Jones's] apartment, did you ask her where Sinbad [(Kwame)] was?" Mason replied, "Yes." The prosecutor then asked her, "And what did she tell you?" Kwame's counsel objected on the ground the question asked for hearsay. Later, James's counsel joined in the objection and Kwame's counsel's arguments.
Outside the presence of the jury, the court read out loud portions of section 1250, which sets forth the state-of-mind exception to the hearsay rule. Citing People v. Majors (1998) 18 Cal.4th 385, the prosecutor argued that Jones's statement to Mason was admissible under section 1250 as evidence of Jones's state of mind in that she had an intent and plan to meet Kwame later that morning.
Still outside the presence of the jury, the court held a brief hearing on the matter under section 402 during which the prosecutor questioned Mason. Mason indicated she would testify that Jones had told her that Kwame had left her (Jones's) apartment about 20 to 30 minutes before Mason arrived there, and Kwame would be back in the morning. Mason also indicated that Jones did not say anything about why Kwame was going to come back to her apartment.
After Mason left the courtroom, the parties discussed the admissibility of Jones's statement to Mason. The prosecutor argued that the evidence of Jones's statements to Mason supported an inference that Jones's plan was to see Kwame later that morning. Kwame's counsel claimed that any such plans were "completely irrelevant to this case" and indicated that the evidence of Jones's statement to Mason was not admissible under the state-of-mind exception to the hearsay rule because Jones's statement "[was] not really being offered to prove what her plans were, but [was] being offered by [the prosecutor] so that the jury [would] infer what [Kwame's] plans were and that he acted in conformity with that plan; namely, that he'd return to the residence." (Italics added.)
The court ruled that the evidence of Jones's statement to Mason was admissible under section 1250 and applicable case law. The court stated:
"[L]ooking at the plain language of the statute and the cases, I think that I have to allow it in. [I]t seems that this is probably the most tenuous way to allow something in under [section] 1250. [¶] However, the prosecutor's right. There is a reasonable inference argument that can be made from the statement that [Kwame] will be back in the morning. And there is a reasonable inference that [Jones] planned to be there and meet with him and expected to see him, and that is relevant to the issues in this case." (Italics added.)
The court then reiterated that Jones's statement "can qualify as a plan by the inferences that can be drawn from it" and observed that the statement "appear[ed] to be within the language of [section 1250] and the meaning of the cases."
In the presence of the jury, Mason testified that when she went to Jones's apartment in Barstow and asked Jones about Kwame's whereabouts, Jones told her that she (Mason) " had missed him by 20 to 30 minutes, and he would be back in the morning." Mason also testified that she and her friend went into Jones's apartment and remained there until about 3:30 a.m., and they did not see anyone other than Jones in Jones's apartment while they were there.
B. Statutory Framework: Declarant's-State-of-Mind Hearsay Rule Exception
Section 1250, subdivision (a) provides:
"Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant." (Italics added.)
Section 1250, subdivision (a)(2) (hereafter section 1250(a)(2)) thus "[deals] with [a declarant's] state of mind to 'prove or explain acts or conduct of the declarant.' " (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 201, p. 918, quoting section 1250(a)(2), italics added.)
Subdivision (b) of section 1250, which limits the applicability of the state-of-mind exception to the hearsay rule, provides: "This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
Another limitation is set forth in section 1252, which provides in part that evidence of a statement offered under section 1250 "is inadmissible... if the statement was made under circumstances such as to indicate its lack of trustworthiness." (§ 1252; see also 1 Witkin, Cal. Evidence, supra, Hearsay, § 194, p. 911.)
C. Analysis
We conclude the evidence of Jones's statement to Mason in Jones's apartment during the early morning hours of February 8─the day Jones was murdered─that Kwame would return to Jones's apartment later that morning was admissible under the declarant's-state-of-mind exception to the hearsay rule codified in section 1250(a)(2), and thus the court did not err in admitting Mason's testimony about Jones's statement.
As already discussed, section 1250(a)(2) provides that, subject to the trustworthiness requirement codified in section 1252, "evidence of a statement of the declarant's then existing state of mind... (including a statement of intent [or] plan...) is not made inadmissible by the hearsay rule when... [t]he evidence is offered to prove or explain acts or conduct of the declarant." (Italics added.)
Section 1250 codifies the California Supreme Court's decision in People v. Alcalde (1944) 24 Cal.2d 177 (Alcalde), which addressed the admissibility of what the high court referred to as "declarations of intent to do an act in the future." (Alcalde, supra, 24 Cal.2d at p. 187; People v. Majors (1998) 18 Cal.4th 385, 404.) Specifically, in Alcalde, the Supreme Court addressed the admissibility of a decedent's statement that she was planning to go out with a man named Frank, the defendant's nickname, on the night she was killed. (Alcalde, supra, 24 Cal.2d at pp. 187-188.) The high court held that the elements essential to admissibility of the decedent's statement were that (1) "the declaration must tend to prove the declarant's intention at the time it was made, " (2) "it must have been made under circumstances which naturally give verity to the utterance, " and (3) "it must be relevant to an issue in the case." (Id. at p. 187.) Applying this three-prong test, the Alcalde court concluded that the decedent's statement was admissible because "it was a natural utterance made under circumstances which could create no suspicion of untruth in the statement of her intent" (id. at pp. 187-188), and "[u]nquestionably the deceased's statement of her intent and the logical inference to be drawn therefrom, namely, that she was with the defendant that night, were relevant to the issue of the guilt of the defendant." (Id. at p. 188.)
Here, Mason's testimony that Jones told her, in Jones's apartment, during the early morning hours of February 8 that Kwame would return to Jones's apartment later that morning, was admissible under section 1250(a)(2) and Alcalde, supra, 24 Cal.2d 177, as a statement of Jones's present intention or plan to do an act in the future because (1) the logical inferences to be drawn from her statement were that she was expecting Kwame to return to her apartment, and she had a present intention or plan to meet with Kwame there, later that same morning, February 8, the day she was murdered in her apartment; (2) Jones's statement to Mason was "made under circumstances which naturally g[a]ve verity to the utterance" (Alcalde, supra, at p. 187) because it was a natural utterance in response to Mason 's question about Kwame's whereabouts, and thus it "could create no suspicion of untruth in the statement of her intent" (id. at pp. 187-188); and (3) Jones's statement and the logical inferences to be drawn therefrom, namely, that she intended or planned to meet, and did meet, with Kwame in her apartment later that morning, were relevant to the issue of Kwame's guilt.
We reject James and Kwame's contention that the court violated their Sixth Amendment right to confront witnesses by admitting evidence of Jones's statement to Mason. Since Jones's statement was "relevant to the issue of defendant's guilt and '[was] properly admitted under the well-recognized state-of-mind exception to the hearsay rule [§ 1250], "'the federal confrontation clause would likewise permit admission of such evidence.' " (People v. Majors, supra, 18 Cal.4th at p. 405.)
Even if we were to conclude the court erred by admitting the statement, we would also conclude any such error was harmless under the applicable test for prejudice announced in People v. Watson (1956) 46 Cal.2d 818, 836, because on the facts of this case it is not reasonably probable a result more favorable to defendants would have been reached absent such error. (See People v. Davis (2005) 36 Cal.4th 510, 538.) The recorded telephone calls between James and Kwame revealed that Kwame intended to kill Jones so that she would not be able to testify against James. Also, Kwame told at least two people he planned to kill Jones because she had called the police on James.
Because the court properly admitted the evidence of Jones's statement to Mason, we also reject James and Kwame's contention that the court violated their federal constitutional right to a fair trial.
V. CALCRIM NO. 362
Kwame, as joined by James, claims the court erred by instructing the jury under CALCRIM No. 362 (Consciousness of Guilt: False Statements). We reject this claim.
A. Procedural Background
At the prosecutor's request, the court instructed the jury with CALCRIM No. 362 as follows:
"If a Defendant made a false or misleading statement relating to the charged crime knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime, and you may consider it in determining his guilt. You may not consider the statement in deciding any other Defendant's guilt. [¶] If you conclude that the Defendant made the statement, it is up to you to decide its meaning and importance. [¶] However, evidence that the Defendant made such a statement cannot by itself prove guilt."
Kwame's counsel objected to the instruction, stating, "I'll object, but I don't think it will do me much good." James's counsel also objected to this instruction, stating, "I object because I don't think there's any evidence of a false statement by [James]."
The court replied:
"I think the problem is it's up to the jury to decide whether or not a statement was false. I don't think it's up to me. I think it's up to the jury. [¶] They heard testimony, and if they decide that either Defendant was not truthful, which they can decide, then they can... follow this instruction. If they decide that nobody made a false statement, then this instruction doesn't apply."
B. Standard of Review
We apply a de novo standard of review to assertions of instructional error. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.)
C. Analysis
1. Forfeiture of the right to raise this claim on appeal
The Attorney General contends that defendants forfeited any claim of error in the giving of CALCRIM No. 362 in this matter because they "fail[ed] to request modification or clarification of the instruction, " and thus their objections were "insufficient to preserve the claims advanced on appeal." In support of this forfeiture claim, the Attorney General cites People v. Andrews (1989) 49 Cal.3d 200, 218 ["a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language"].
The Attorney General's forfeiture claim is unavailing. A defendant's claim of instructional claim "may be raised initially on appeal to the extent it implicates his substantial rights." (People v. Salcido (2008) 44 Cal.4th 93, 155 (Salcido).)
Here, Kwame (joined by James) contends that CALCRIM No. 362 "lightens the prosecution's burden of proof" in violation of the Fourteenth Amendment.
Because defendants contend CALCRIM No. 362 reduced the prosecutor's burden of proof, thus affecting one of their fundamental constitutional rights, we entertain the claim on its merits. (Salcido, supra, 44 Cal.4th at p. 155.)
2. Merits
Citing the Court of Appeal's expression of "doubt" in People v. Beyah (2009) 170 Cal.App.4th 1241, 1248-1249 (Beyah) "that the CALCRIM committee intended CALCRIM No. 362 to be used... to permit an inference of consciousness of guilt based on knowingly false or intentionally misleading statements in a defendant's trial testimony" (italics added), defendants contend CALCRIM No. 362, as given in this case, was erroneous "in not limiting its purview to pretrial statements" and "in inviting the jury to subject a defendant's testimony to special scrutiny."
Defendants also contend CALCRIM No. 362 lightens the prosecution's burden of proof in violation of the Fourteenth Amendment by "singl[ing] out the defendant's testimony, as a pinpoint instruction, in a manner which becomes a comment on the evidence by supplying an invitation to determine the defendant had a consciousness of guilt, helping to lead a jury's conclusion that the defendant is lying on the witness stand... and that therefore the defendant is guilty."
These contentions are unavailing. In Beyah, the Court of Appeal noted that "CALJIC No. 2.03, the standard consciousness of guilt instruction in use before CALCRIM No. 362, limit[ed] the consideration of false or misleading statements to those made before trial." (Beyah, supra, 170 Cal.App.4th at p. 1248, italics added, fn. omitted.) It also observed that, "although CALCRIM No. 362 omits the limiting language found in CALJIC No. 2.03, CALCRIM No. 362 expressly refers to a false or misleading statement made by defendant, not to false or misleading testimony." (Ibid., original italics.) The Beyah court expressed "doubt that the CALCRIM committee intended CALCRIM No. 362 to be used as it was here: to permit an inference of consciousness of guilt based on knowingly false or intentionally misleading statements in a defendant's trial testimony." (Beyah, supra, at pp. 1248-1249.)
However, the Beyah court concluded that the defendant "suffered no prejudice, because California law makes clear that a defendant's false trial testimony may, in proper circumstances, be considered as evidence of consciousness of guilt." (Beyah, supra, 170 Cal.App.4th at p. 1249.) The Court of Appeal explained that CALCRIM No. 362, as applied to that case, "did nothing more" than state the principle that "if the jury concluded that defendant intentionally gave false or misleading testimony, it may infer that defendant is aware of his guilt and may consider that inference─along with other evidence─in determining defendant's guilt." (Beyah, supra, at p. 1250.) The Beyah court also explained that, "although it might be said that the instruction singles out the defendant's testimony as subject to heightened scrutiny compared to other witnesses, that is true only because the principle involved is uniquely applicable to the defendant. That is not, however, a legitimate ground for concluding that the instruction unconstitutionally burdened defendant's choice to testify or resulted in any improper inference of guilt based on the jury's evaluation of his testimony." (Ibid., fn. omitted.)
We note, as the Attorney General correctly points out, that CALCRIM No. 362 was revised in August 2009 to apply only to statements made by the defendant before trial.
Here, defendants, like the defendant in Beyah, cannot demonstrate any prejudice from the CALCRIM No. 362 instruction the court gave in this case. The language used in that instruction is permissive, not mandatory. As the Court of Appeal correctly noted in Beyah, such an instruction does nothing more than state the principle that, if the jury concludes the defendant intentionally gave false or misleading testimony, "it may infer that defendant is aware of his guilt and may consider that inference─along with other evidence─in determining defendant's guilt." (Beyah, supra, 170 Cal.App.4th at p. 1250.) A jury may properly infer consciousness of guilt from a defendant's false trial testimony. (People v. Showers (1968) 68 Cal.2d 639, 643; Beyah, supra, at pp. 1249-1250.) Furthermore, by cautioning the jury that "evidence that the Defendant made such a [false or misleading] statement cannot by itself prove guilt, " the last clause of the instruction precluded any harm to Kwame and James.
VI. CALCRIM NO. 226
Kwame and James also claim the court erred by instructing the jury under a portion of the standard instruction on witness credibility, CALCRIM No. 226, and thereby violated their right to due process under the Fourteenth Amendment. We reject these claims.
A. Background
CALCRIM No. 226 informs the jury that it must judge the credibility or believability of the witnesses, and provides a list of factors the jury may consider. Defendants challenge the last paragraph of CALCRIM No. 226 (rev. April 2008), which, as given by the court, provides:
"If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says or if you think the witness lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (Italics added.)
B. Applicable Legal Principles
In reviewing a claim of instructional error, we determine whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated defendant's constitutional rights. (People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Vang (2009) 171 Cal.App.4th 1120, 1129 (Vang).) "It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538, italics added, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756.)
"We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given." (Vang, supra, 171 Cal.App.4th at p. 1129, citing People v. Guerra (2006) 37 Cal.4th 1067, 1148 & People v. Martin (2000) 78 Cal.App.4th 1107, 1112.)
C. Analysis
1. Forfeiture of the right to raise this claim on appeal
The Attorney General claims defendants forfeited any claim of error in the giving of CALCRIM No. 226 in this matter because "neither... requested clarifying or amplifying language." We shall entertain the claim on its merits because defendants contend that the giving of this instruction affected one of their fundamental constitutional rights. (Salcido, supra, 44 Cal.4th at p. 155.)
2. Merits
As previously noted, both Kwame and James testified in their own defense. They contend that because the last paragraph of CALCRIM No. 226 uses the word "should" rather than "may" in the first sentence, this instruction "tells jurors they 'should' disbelieve everything a witness coming within the scope of the instruction has said" (italics added), and thus it "invite[s] the jury... to reject all of [defendants'] testimony." Defendants also assert that "this kind of instruction, on the facts of this case, violated [their] right to due process of law under the Fourteenth Amendment" because it "encourages... a jury to reject the entire testimony of the defendant if it finds a material falsehood in his testimony."
We conclude defendants have failed to show a reasonable likelihood the jury understood the last paragraph of CALCRIM No. 226 in the manner they suggest. In Vang, supra, 171 Cal.App.4th 1120, the defendant, like defendants here, challenged the last paragraph of CALCRIM No. 226. (Vang, at p. 1128.) The Court of Appeal concluded in Vang that "[t]he last paragraph of CALCRIM No. 226... tells the jurors that if they find a witness lied about a material part of his testimony, they may, but need not, choose to disbelieve all of his testimony. Furthermore, if they find that though he willfully lied on one point he told the truth on others, his lie on the former point does not bar them from believing the rest." (Id. at p. 1130, italics added.)
We agree with the Vang court's interpretation of the last paragraph of CALCRIM No. 226. Here, defendants' main contention is that the word "should" in the first sentence of that paragraph tells jurors they "should disbelieve" everything a witness who comes within the scope of the instruction has said. However, such an interpretation is contrary to the plain language contained in that sentence, which unambiguously states, "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says." (Italics added.) The sentence tells the jurors they should "consider not believing" (italics added) anything such a witness says; it does not tell them they "should disbelieve" everything such a witness says, as defendants contend. Even if the meaning of the first sentence were in some manner unclear, and we are persuaded it is not, the second sentence of that paragraph dispels any lack of clarity by informing the jurors, "if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (Italics added.) The use of the word "may" in that second sentence is permissive and clearly informs the jurors that, as the Vang court found, they may, but need not, choose to disbelieve all of the testimony of any witness they find lied about a material part of his or her testimony. (See Vang, supra, 171 Cal.App.4th at p. 1130.)
VII. PAROLE REVOCATION RESTITUTION FINES
Last, Kwame and James claim the court erred by imposing against each of them a $10,000 parole revocation restitution fine under Penal Code section 1202.45, because they were sentenced to life without the possibility of parole. Specifically, Kwame asserts that "the court imposed a [parole revocation] restitution fine of $10,000 under Penal Code section 1202.45, " and "[t]his was done in error, and is an unauthorized sentence component, because Kwame was sentenced to life without possibility of parole and because his sentence does not include a determinate term." Relying principally on People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), Kwame contends the parole revocation restitution fine must be stricken because such a fine does not apply to sentences of life without possibility of parole, and thus it "is not authorized by the statute under these circumstances." In a written joinder, James states that he "adopts [Kwame's] argument that [Penal Code] section 1202.45 does not permit a parole revocation fine in this case."
The People, relying on People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), assert the imposition of the parole revocation restitution fines was proper.
For reasons we shall explain, we affirm James's parole revocation restitution fine, but conclude that Kwame's parole revocation restitution fine must be stricken and the judgment against him so modified.
A. Background
The court sentenced both James and Kwame to an indeterminate state prison term of life without the possibility of parole for their first degree murder convictions.
The court also sentenced James to a determinate term of nine years for his count 1 solicitation of murder conviction, plus an indeterminate term of 25 years to life for his count 3 conspiracy to commit murder conviction, and then stayed the execution of those count 1 and count 3 sentences under Penal Code section 654.
In addition, the court sentenced Kwame to an indeterminate term of 50 years to life for his count 3 conspiracy to commit murder conviction, and then stayed the execution of that sentence under Penal Code section 654.
The court also imposed against each defendant, but then stayed, a $10,000 parole revocation restitution fine under Penal Code section 1202.45.
Penal Code section 1202.45 provides:
" In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of {Penal Code] Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of [Penal Code] Section 1202.4. This additional parole revocation restitution fine... shall be suspended unless the person's parole is revoked...." (Italics added.)
C. Analysis
In Brasure, supra, 42 Cal.4th at page 1075, the California Supreme Court held that Penal Code section 1202.45 applies to a sentence that includes a determinate prison term, even when the trial court has also imposed the death penalty. In support of its holding, the high court cited Penal Code section 3000, subdivision (a)(1), which generally provides that a sentence under Penal Code section 1168 or 1170 "shall include a period of parole."
Penal Code section 1168, subdivision (a) provides: "Every person who commits a public offense, for which any specification of three time periods of imprisonment in any state prison is now prescribed by law or for which only a single term of imprisonment in state prison is specified shall, unless such convicted person be placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced pursuant to Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2."
Under Penal Code section 1170, subdivision (a)(3), a court sentencing a convicted person to a determinate term "shall advise the defendant that he or she shall serve a period of parole."
However, a parole revocation restitution fine may not be imposed under Penal Code section 1202.45 for a sentence that only consists of an indeterminate term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is no period of parole. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819 (Jenkins); Oganesyan, supra, 70 Cal.App.4th at p. 1183.) A parole revocation restitution fine also may not be imposed under that section for a sentence that consists of an indeterminate term of "[a specified number of] years to life" because such a sentence does not presently include a period of parole. (Oganesyan, at pp. 1184-1185 [Penal Code section 1202.45 inapplicable to indeterminate sentence of 15 years to life]; see also Jenkins, supra, at p. 819 [Penal Code section 1202.45 inapplicable to indeterminate sentence of 35 years to life].)
Here, as already discussed, Kwame's sentence consists of two indeterminate terms: (1) life without the possibility of parole for his murder conviction (count 2), and (2) an indeterminate term of 50 years to life (the execution of which was stayed) for his conspiracy to murder conviction (count 3). We conclude his Penal Code section 1202.45 parole revocation restitution fine must be stricken because his sentence does not include a determinate term. (Brasure, supra, 42 Cal.4th at p. 1075; Jenkins, supra, 140 Cal.App.4th at p. 819; Oganesyan, supra, 70 Cal.App.4th at p. 1183.)
James's sentence, however, includes a determinate term of nine years for his count 1 solicitation of murder conviction. We thus conclude his Penal Code section 1202.45 parole revocation restitution fine is statutorily authorized. (Brasure, supra, 42 Cal.4th at p. 1075.)
VIII. CUMULATIVE ERROR CLAIMS
Last, James and Kwame both contend the cumulative effect of the foregoing claimed errors requires reversal of the judgments. This contention is unavailing.
A series of trial errors, though harmless when considered independently, may in some circumstances rise by accretion to the level of prejudicial, reversible error. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
Here, James and Kwame have failed to meet their burden of showing any such cumulative errors or prejudice.
DISPOSITION
The judgment against James is affirmed. The judgment against Kwame is modified to reflect this court's order striking the parole revocation restitution fine imposed under Penal Code section 1202.45. As so modified, the judgment is affirmed. The trial court is directed to amend page 2 of Kwame's "PRISON COMMITMENT ─ INDETERMINATE" abstract of judgment to reflect the striking of the entries incorrectly indicating imposition of a Penal Code section 1202.45 parole revocation restitution fine and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.