Opinion
B162522, x-ref. B096198. B165791.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. LARRY HISTON, Defendant and Appellant. In re LARRY HISTON on Habeas Corpus.
Gregory L. Rickard, under appointment by the Court of Appeal, for Defendant and Appellant. Larry Histon, in pro. per., for Petitioner on Habeas Corpus. No appearance for Plaintiff and Respondent.
Larry Histon appeals from the trial courts October 4, 2002, denial of his petition for writ of coram nobis. Defendant was originally convicted of first degree murder with the use of a firearm on August 31, 1995, and was sentenced to state prison for a term of 25 years to life plus a four-year firearm use enhancement (Pen. Code, § 12022.5, subd. (a)).
On his first appeal, Histon claimed the trial court prejudicially erred in inadvertently omitting some second degree murder instructions. We rejected this contention in a nonpublished opinion. (People v. Histon (Sept. 23, 1996, B096198).)
We appointed counsel to represent him on this appeal. After examination of the record, counsel filed an "Opening Brief" requesting an independent review of the record.
On March 21, 2003, we advised Histon that he had 30 days within which to personally submit any contentions or issues he wished us to consider. On April 24, 2003, he filed a supplemental brief.
On March 24, 2003, Histon, representing himself, filed a petition for writ of habeas corpus seeking review of the trial courts denial of his new trial motion and denial of his habeas corpus petition. We ordered the petition be considered concurrently with the appeal.
Histons prior petitions for extraordinary writ relief include a habeas petition in which he raised the issue of adequate assistance of appellate counsel. On February 27, 1997, we considered and denied the petition (B109514). On September 19, 2002, we summarily denied his petition (B161274) in which he complained that the superior court should have provided a reason for denying his habeas petition. On October 31, 2002, we denied a petition (B162170) in which Histon raised the same issue he had raised in his petition in No. B161274. On May 15, 2003, we considered and denied his renewed claim that the superior court erred in not providing more detail in its denial of his habeas petition.
The Appeal
Histons petition for writ of coram nobis stated that after his 1995 trial, the court made an erroneous determination of fact in denying his new trial motion when it concluded that a statement he allegedly made after his arrest was not covered by Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. A police detective testified that after Histon was taken from his car, handcuffed and placed in the police car, he said to defendant, "You know why were here?" Histon replied, "Yeah, I know why youre here." Histon contends the statement was inadmissible because he was in police custody when he was asked the question and the detective should have advised him of his constitutional rights before questioning him. Histon was advised of his Miranda rights by other officers after Histon had been taken to the police station. Histon also contended the trial court exceeded its jurisdiction and violated his due process rights by denying his motion for new trial based on an error of law in allowing the police detective to so testify.
Penal Code section 1181 provides: "When a verdict has been rendered or a finding made against the defendant, the court may upon his application, grant a new trial, in the following cases only: [P] . . . [P] 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury."
Apparently as alternatives to his claim of custodial interrogation in violation of Miranda, Histon claims his statement could only be used on rebuttal to impeach his direct testimony, not as evidence of guilt, and that in argument to the jury the prosecutor characterized his statement as an admission. He adds that two jury instructions allowed the jury to treat the statement as evidence of guilt and that no jury instruction limited the jurys use of the statement.
The trial evidence established that Histon and the murder victim, Paula Barnett, had been having an extra-marital affair. When Barnett ended the relationship, Histon continued to phone and appear at Barnetts home and work, once provoking an arrest when Barnetts daughters overheard Barnett tell him not to touch her.
Histon repeatedly called Barnett at work on the day of the murder. She refused to talk with him. After the last call, around 2:15 p.m., Barnett and a co-worker moved an office divider to obstruct the view of Barnetts desk by people entering the office. The last of Barnetts coworkers left the office at 2:30 p.m.
Patricia Del Rio, who worked in the same office complex and knew Barnett and Histon, saw Histon pass her office on the way to Barnetts office. Del Rio did not see his familiar black Lexus parked in its usual spot. Within a minute, Del Rio and her co-worker, Susan Guccione, heard a thud, a shriek, and a thud. No more than a minute later, Del Rio saw Histon walk quickly from Barnetts office. Del Rio and Guccione found Barnetts body slumped in her chair. Nothing was missing from the office. Two rings Histon had given Barnett were on the floor near her chair. She had been shot twice at very close range with .38 or .357 bullets. Both shots were immediately fatal. There was no evidence of a struggle. Police arrested Histon at his house when he arrived in his black Lexus that evening.
Assuming, for purposes of discussion, that the trial court erred in its treatment of the detectives testimony, we conclude the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Cahill (1993) 5 Cal.4th 478, 509-510, 853 P.2d 1037.) The evidence, particularly the testimony of a woman who knew Histon, was overwhelming. Accordingly, Histon failed to raise arguable issues concerning his claims of statutory and constitutional violations, and the trial court properly denied his petition for writ of coram nobis.
Our conclusion that any error concerning the detectives testimony was harmless beyond a reasonable doubt also disposes of Histons claim of ineffective assistance of appointed appellate counsel on this appeal based on counsels failure to raise as arguable issues the issues Histon raises here. We deny the request in Histons supplemental brief that appointed appellate counsel be replaced.
We have examined the entire record and are satisfied that Histons attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441, 158 Cal. Rptr. 839, 600 P.2d 1071.)
The Petition for Writ of Habeas Corpus
Histons current habeas petition raises virtually identical, albeit shorter, arguments in support of the statutory and constitutional claims raised in his supplemental appellate brief. Because those issues were considered on the appeal, the petition is denied. (In re Harris (1993) 5 Cal.4th 813, 828-829, 855 P.2d 391.)
We deny Histons "Motion for Leave to File Amendments to Petition for Writ of Habeas Corpus With Additional Claim and Points of Authority in Attachment A with Reporters Transcripts in Attachment K." He asks to add a claim of ineffective assistance of appellate counsel on his first appeal. Yet our records and his petition show he has previously raised this claim. We denied his habeas petition claiming ineffective assistance of appellate counsel in February 1997, and, according to Histons current petition, the same claim was raised and rejected by our Supreme Court on June 28, 2000. The additional reporters transcript excerpts include Histons direct testimony concerning his activities the day of the murder, including his statement that his wife had the Lexus that afternoon. Histon apparently seeks to add these transcripts to establish that his statement that he did not learn of the shooting until he was arrested was elicited not on direct but on cross-examination, a fact we gleaned from the record on appeal. Accordingly, the motion is denied. (In re Clark (1993) 5 Cal.4th 750, 769-770, 855 P.2d 729.)
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: SPENCER, P.J., VOGEL (Miriam A.), J.