Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. BLF001021. Thomas N. Douglass, Jr., Judge.
NARES, J.
David Robert Riker was jointly charged and tried with codefendant Richard Allan Walker for first degree murder (Pen. Code, § 187; count 1), robbery (§ 211; count 2), burglary (§ 459; count 3), and unlawful driving or taking a vehicle (Veh. Code, § 10851; count 4). Three special circumstances were alleged as to the murder: (1) Riker and Walker had been previously convicted of murder (§ 190.2, subd. (a)(2); (2) the murder was committed during the course of a robbery (§ 190.2, subdivision (a)(17)(i); and (3) the murder was committed during the course of a burglary (§ 190.2, subd. (a)(17)(vii).
All further statutory references are to the Penal Code unless otherwise specified.
In May 2005 the jury found Riker guilty of first degree murder and found true the special circumstance allegations of a previous murder conviction and murder during the course of a robbery. It found the burglary special circumstance not true. The jury also found Riker guilty of robbery, grand theft as a lesser included offense of burglary, and unlawfully driving or taking a vehicle.
Walker was acquitted of the murder charge and convicted of grand theft as a lesser included offense of burglary, and unlawfully driving or taking a vehicle. The jury was unable to reach a verdict as to Walker on the robbery charge, a mistrial was declared as to that count and, on the People's motion, the robbery charge was dismissed.
Riker was sentenced to life in prison without possibility of parole for the murder conviction. He was sentenced to the middle term of three years on the robbery charge, the middle term of two years on the grand theft charge; and the middle term of two years on the unlawful taking of a vehicle charge, which were stayed under section 654. The court imposed a $10,000 restitution fine and a $10,000 parole revocation fine.
On appeal, Riker asserts the court erred by (1) denying his motion to sever his trial from Walker's, (2) admitting damaging statements he made to psychiatrists during the penalty phase of his trial for a separate murder he committed in Nevada, and (3) failing to conduct a hearing on the constitutional validity of his murder conviction in Nevada before admitting such evidence in this case. Riker also asserts that (1) he was improperly convicted of both robbery and grand theft because grand theft is a lesser included offense of robbery, (2) his convictions for robbery and unlawfully driving or taking a vehicle constituted an improper double conviction, (3) the abstract of judgment must be corrected to accurately reflect the sentence imposed by the court, and (4) the parole revocation fine must be stricken because he is not eligible for parole.
The contention that the court erroneously admitted evidence of Riker's Nevada conviction was raised in a supplemental opening brief.
We conclude that (1) Riker's conviction of grand theft must be reversed as it is a lesser included offense of robbery, (2) the abstract of judgment must be corrected accurately to reflect the sentence imposed the court, and (3) the parole revocation fine must be stricken. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
A. People's Case
1. Blythe murder of John Phippin (the instant case)
In 1992 John and Sharon McDonald owned and operated B&B Concessions (B&B), a business running carnival games at fairs around the country. Riker and Walker worked for B&B running carnival games. From Thursday, April 9, 1992 to Sunday, April 12, 1992, B&B was operating at the Colorado River Fair in Blythe, California.
All further date references are to the calendar year 1992 unless otherwise specified.
B&B arrived prior to the start of the fair and on April 6 Walker rented a room at the Desert Winds Motel in Blythe. Riker and another B&B employee named Philip Quinn shared the motel room with Walker. However, Quinn only stayed two nights as he ran out of money to contribute to the room. Riker told Quinn he could not stay at the motel room if he could not pay. The nightly rate for the room was $33, and Walker paid for the first two nights when he checked in.
According to Quinn, Walker told him he knew martial arts and had a black belt, demonstrating this by performing a roundhouse kick. Riker owned a diving knife with a sheath and spoke about going to Las Vegas.
B&B workers were paid a percentage of the money they made, and were allowed a daily draw of $10. On April 9 Walker made $13 running his game, with his percentage totaling $3.25 for the day.
On Friday, April 10, at approximately 8:00 to 8:30 p.m., John McDonald was checking the carnival games and noticed that Riker and Walker were not at their games. He saw them leaving the fairgrounds on foot. Walker said he was quitting. Riker said nothing and returned to his game when told to do so by McDonald. However, within 10 minutes, McDonald discovered Riker had left his game and directed Quinn to fill in.
Quinn and McDonald went to Riker and Walker's motel room the next day. Riker and Walker were gone, along with their belongings, and some of Quinn's belongings that he had left there. Walker was last seen by the motel manager on Friday and he did not check out before leaving.
John Phippin worked for the National Oceanic and Atmospheric Administration (NOAA) and was staying in Blythe at the Best Western Sahara motel. He and fellow NOAA employee Melvin Bergman were surveying local airports and each was driving a government issued Chevrolet Suburban. When he was not working Phippin kept his Suburban parked directly in front of his motel room, room 53. Bergman was staying in the room next to Phippin's, but left on Friday, a day before the rest of the NOAA crew was scheduled to leave.
William Watkiss, a television reporter, was also staying at the Best Western Sahara motel, along with members of his television crew. Watkiss was aware that a man was staying in room 53 and saw him Saturday morning through that room's open doorway just before he and the crew left around 11:00 a.m. Watkiss heard the man talking. He assumed the man was talking on the telephone but he did not actually see him holding a phone.
When Watkiss and his crew returned around 5:00 p.m., room 53 was closed and the Suburban that had been parked in front of it was gone. As he walked to his own room, Watkiss noticed bloody shoe prints on the ground in front of the door to room 53.
On Sunday, April 12, officers from the Blythe Police Department responded to the Best Western Sahara on a call of a "man down." They observed several bloody boot prints with a "waffle stomper" pattern in front of the door to room 53. Phippin was inside the room on the floor, dead, with his left arm on his chest. His face was bloody, he had blood and bruising on his left side, and he had a stab wound to his chest. Phippin had a bruise on his forehead that was of a similar pattern to the bloody boot prints in front of room 53's door. There was a small amount of marijuana, rolling papers and a tooth on the floor. A Budweiser beer can was found in a trash can outside the room, and two more were located inside the room. Phippin's wallet was in his right rear pocket and contained a $20 bill and his credit cards. Several shoe prints were located on the bathroom floor and were preserved.
An autopsy was conducted on Phippin. There was swelling and black and blue marks on Phippin's face, and a patterned abrasion on the right side of his forehead that appeared to have been caused by a shoe or boot with a pattern on its sole. Phippin's nose was swollen, both his eyes were blackened, and there were multiple scratches on his face. The stab wound to Phippin's left chest penetrated approximately six inches, perforated his left lung and caused his death. There were multiple bruises to Phippin's right chest and abdomen, consistent with wounds being inflicted by hands or feet. His liver was ruptured.
2. Las Vegas murder of Kevin Marble
On April 14 at approximately 6:00 a.m., Las Vegas Police Department Officer Joseph Zepeda responded to a report of a suspicious vehicle in an industrial area of the city and discovered Phippin's government-issued Suburban. Numerous parts of the vehicle—including the outside door handles, gas cap, steering wheel, driver and passenger side door locks, inside door handles and inside window handles, gear shift lever, turn signal mechanism, emergency brake, areas on the front dash and knobs on the dash board—had been spray-painted red. The cap from a can of red spray paint was on the front seat.
Despite the abundance of red spray paint, police were able to recover several latent fingerprints from the vehicle. Two latent fingerprints recovered from the driver's side window matched Riker's left middle and left ring fingers. One latent fingerprint lifted from a Coke bottle in the Suburban matched Riker's right index finger. One latent fingerprint lifted from the driver's seat buckle matched Walker's right thumb. The Suburban also contained an empty box for a survival knife.
On that same date at approximately 2:43 a.m., Las Vegas Police Officer Thomas Harmon was dispatched to 301 West Baltimore Street to investigate a report of a shooting. In an alley between Baltimore and West Boston, Officer Harmon discovered Kevin Marble lying face down on the pavement. There was blood around Marble's body, the edges of which were beginning to dry. There was also blood on the porch of the apartment at 301 West Baltimore, where Marble lived. A large survival knife, which had blood on it, was on the porch. Marble's boots, in which his revolver and key chain were found, were on the sidewalk near where he would normally park the van owned by the company for which he worked, Trans Sierra Communications. His wallet, which he normally kept in his back pocket, was missing. There were two bloody shoe prints, one from a work boot and another from an athletic shoe. Neither print matched Marble's boots. Marble had a large gaping stab wound to his chest, and a stab wound and scratch on his neck. The door to Marble's apartment was open.
Marble's apartment was approximately two miles from where Phippin's Suburban was located later that morning. Marble had been at the home of Steven Kirk, a coworker, the night before, leaving between 9:30 and 10:00 p.m. Marble, who was driving the company van that night, told Kirk he was going to stop by the office on the way home.
An autopsy was conducted on Marble. There was an acrid-smelling yellow substance, possibly urine, in Marble's head hair. He had superficial abrasions to his cheek and the bridge of his nose that were consistent with him having fallen on his face. The stab wound to his neck was two and one-half inches deep, severed the spinal cord, and was fatal. The stab wound to his chest was four to five inches long and approximately five inches deep. It struck the aorta, pulmonary arteries and heart, and was also fatal. Marble would have died within 20 to 30 seconds of either stab wound.
The knife found on Marble's porch was identified as Phippin's. In the opinion of the medical examiner, the survival knife could have caused the stab wounds to Marble's neck and chest. A presumptive test on Phippin's survival knife was positive for blood. DNA extracted from inside the knife handle matched that of Marble. DNA extracted from a swab used to collect blood from the survival knife at the scene also matched that of Marble.
3. Capture of Riker and Walker
On April 14 at approximately 1:20 a.m., Louis DeFalco, the security guard supervisor for two casino/hotels on the California-Nevada state line, responded to a report of a disturbance at the Primadonna hotel and casino. He observed one of his security guards engaged in a verbal dispute with Walker, who was standing at the side of a Trans Sierra Communications van. Walker got in the passenger side of the van and it left at a high rate of speed, heading to the freeway towards California. DeFalco had his dispatcher notify the California Highway Patrol (CHP).
At approximately 3:20 a.m., CHP Officer William Flowers and his partner were on Ghost Town Road at Interstate 15 when the Trans Sierra Communications van went past them. The officers pursued the van and attempted to pull it over. The van initially slowed and pulled to an off-ramp, but then accelerated back onto the freeway, reaching a speed of 85 miles per hour. The van exited at West Main Street in Barstow at a speed of approximately 90 miles per hour, jumped a raised median, and sped through the city at approximately 100 miles per hour. Units from the San Bernardino County Sheriff's Department and the Barstow Police Department joined the pursuit. The pursuit ended when the van crashed into an embankment.
Barstow Police Officers Barry Hazelett, Christopher Carter and Alan Scheib approached the passenger side of the van where they found Walker in the passenger seat and assisted him out of the van. Riker was in the driver's seat.
Walker wore high top tennis shoes and had a knife sheath on his belt. Two of the shoe prints at the Marble murder scene were similar in size and design to Walker's left shoe, and one print resembled the right shoe. Mixed DNA extracted from blood on the arch of Walker's left shoe matched that of Marble as the primary donor and Walker as a possible secondary donor. DNA extracted from the heel of Walker's left shoe matched that of Marble.
The knife sheath went with Phippin's survival knife, both of which Phippin normally kept in the knife box found in Phippin's van.
A pair of stone washed jeans belonging to Walker had four stains, two of which produced DNA that matched that of Marble.
Riker's diving knife was found on the floorboard of the van on the driver's side near Riker's feet. Mixed DNA extracted from the serrations at the top of the blade matched that of Phippin as the primary donor. The forensic pathologist who conducted Phippin's autopsy concluded that Riker's diving knife could have caused the stab wounds to Phippin.
Riker's work boots were found in the van. Riker's boots could have made the bloody shoe prints outside Phippin's motel room. The left boot made the two overlapping shoe prints in Phippin's bathroom. Both boots tested positive on a presumptive test for blood. DNA extracted from the side, toe and lace grommet of the left boot matched that of Marble.
The van also contained several items belonging to Phippin and Marble, including Marble's wallet, Phippin's briefcase, and Phippin's tool bag.
4. Evidence from Nevada prosecution
Over Riker's objection, the following evidence from his Nevada conviction for the murder of Marble was admitted at the trial in this matter.
In Nevada, Walker was convicted of, and Riker pleaded guilty to, the first degree murder with a deadly weapon and robbery with a deadly weapon of Marble. As part of his guilty plea, Riker admitted personally stabbing Marble. Riker was sentenced to death in the Marble case. (Riker v. State of Nevada (1995) 111 Nev. 1316 [905 P.2d 706, 709-710] (Riker).)
As part of the penalty phase of the Nevada case, Riker was interviewed by two psychologists, Dr. Marvin Glovinsky and Dr. Lewis Etcoff. Riker told Glovinsky he met Phippin in a bar after quitting his carnival job and went to Phippin's motel room to smoke some dope. Walker started beating Phippin, and Riker then stabbed Phippin.
Riker told Etcoff that he was at a bar drinking when he and his companion decided to accompany a man to his room, knock him out, and take his vehicle. Riker told Etcoff that once they got to the man's room, they beat him, and Riker stabbed the man when he was on the floor. Riker stole everything he could and they then went to Las Vegas. While in Vegas, he decided to rob another man and take his van. Riker stabbed him to death and got in a high speed chase which ended in an accident.
B. Riker's Defense Case
Eric Freedman, an orthopedic hand surgeon, testified that X-rays of Walker's left hand taken in April showed a fracture to the small finger metacarpal, which was commonly known as a "boxer's fracture" because it occurred when a closed fist struck an object. The fracture could have been caused by Walker striking another person in the head. There was no evidence of healing, which indicated the fracture had occurred within a few days to two weeks earlier. The fracture was not of the type associated with an automobile accident.
Stephen Dahl was the team chief on the capital murder team of the Clark County Public Defender's Office, which represented Riker in the Nevada prosecution for the Marble murder. Riker wanted to plead guilty and receive the death penalty because he was tired of the lengthy proceedings and wanted to get it over with and die. Riker's guilty plea was entered against his counsel's advice. Riker later sought to withdraw his guilty plea, but that motion was denied.
Riker also presented evidence that the shorts he was wearing when arrested had a waist measuring 31 inches and the stone washed jeans which belonged to Walker had a waist measuring 27-1/2 inches.
C. Walker's Defense Case
Walker presented the testimony of several character witnesses who testified that he was not violent or aggressive and described his background in martial arts. Walker's ex-wife testified concerning their marriage and divorce, which occurred because of Walker's addiction to cocaine.
Walker also presented the testimony of his previous attorney and three Nevada inmates as to statements Riker made implicating himself in both murders and exculpating Walker. Joaquim Almeira, an expert in martial arts, opined that Walker had the knowledge and qualifications for a black belt and that he was capable of rendering a person unconscious with a blow from his fist.
Walker testified in his own defense. He and Riker met Phippin in a bar in Blythe after they quit the carnival. They went to Phippin's motel room to smoke marijuana. Walker stated that he had drunk a considerable amount of alcohol at the bar. When Phippin made a racial slur against Japanese women, Walker knocked him unconscious. Walker was offended because his mother is Japanese. Riker then kicked and stomped Phippin in the head as he lay unconscious. Riker pulled out his knife, smiled at Walker, and stabbed Phippin in the chest. Walker and Riker left with Phippin's vehicle after Riker loaded many of Phippin's belongings into the car.
They drove to Las Vegas and got a motel room. Walker became intoxicated and stayed that way for the next few days. Riker ditched the car and ultimately they obtained another car and left Las Vegas. Walker had no recollection of the subsequent vehicle chase or accident.
Mace Beckson, a psychiatrist, opined that Walker's behavior in knocking Phippin unconscious was consistent with his being influenced by deep-seated feelings of anger toward his mother and father over their divorce and the disinhibiting effects of intoxication. He diagnosed Walker as having a substance abuse disorder.
D. Riker's Appeal of Nevada Conviction and Death Sentence
In Riker, supra, 905 P.2d 706, Riker appealed his Nevada conviction and death sentence for the murder of Marble, asserting (1) the trial court erred in denying his motion to withdraw his guilty plea as he was not competent to plead guilty, (2) three-judge panels conducting sentencing in capital cases are unconstitutional, (3) the death penalty sentencing scheme is unconstitutional, (4) the three-judge panel erred in considering evidence of the Phippin murder, and (5) the prosecutor engaged in prosecutorial misconduct during the sentencing hearing. (Id. at pp. 710-713.) The Nevada Supreme Court rejected these contentions and affirmed the judgment of conviction and sentence of death. (Ibid.)
DISCUSSION
I. SEVERANCE
A. Background
Prior to trial, Riker filed a motion requesting that his trial be severed from Walker's on the ground that their inconsistent defenses were so conflicting in nature that acceptance of one of their defenses would preclude acquittal of the other and thus a joint trial would deprive Riker of due process. The court, although acknowledging that the issue was close, denied the motion.
Defense counsel renewed the motion several times during trial as it became clear that their defenses conflicted. The court denied the motion on each occasion.
B. Applicable Authority
Section 1098 provides in part: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials." Through section 1098, the Legislature has "'expressed a preference for joint trials.' [Citation.] Separate trials are permitted in the discretion of the trial court, however, and whether a trial court's denial of a severance motion constitutes an abuse of that discretion is judged on the facts as they appeared at the time the court ruled on the motion." (People v. Hardy (1992) 2 Cal.4th 86, 167 (Hardy).)
When a trial court's severance determination is challenged on appeal, the reviewing court engages in two levels of review. The first level is to evaluate whether the trial court abused its discretion in denying the motion to sever, based on the information in front of the court at the time the severance motion was made. (People v. Greenberger (1997) 58 Cal.App.4th 298, 343; People v. Cummings (1993) 4 Cal.4th 1233, 1286 (Cummings) ["Granting separate trials is a matter committed to the sound discretion of the trial court"].) A second level of review, which commences if the trial court is deemed not to have abused its discretion, evaluates whether, due to subsequent developments in the course of the trial, the failure to sever resulted in "a gross unfairness [that] deprive[d] the defendant of a fair trial or due process of law." (People v. Turner (1984) 37 Cal.3d 302, 313 (Turner), overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1149; Greenberger, supra, 58 Cal.App.4th at p. 343.)
C. Analysis
1. There was no abuse of discretion
"Because [Riker and Walker] were charged with having committed 'common crimes involving common events and victims' [citation], this was a 'classic case' for a joint trial." (Hardy, supra, 2 Cal.4th at p. 168.) "'That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.' [Citation.]" (Id. at p. 169, fn. 19.)
Moreover, "'[a]lthough several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis.' [Citation.] If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials 'would appear to be mandatory in almost every case.' [Citation.]" (Hardy, supra, 2 Cal.4th at p. 168) "'Antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.' [Citation.] 'Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' [Citations.] Stated another way, '"mutual antagonism" only exists where the acceptance of one party's defense will preclude the acquittal of the other.' [Citations.]" (Ibid.)
In Turner, codefendants were tried on two counts of murder committed during commission of a burglary. (Turner, supra, 37 Cal.3d at p. 310.) Only one defendant testified at trial. He admitted that he and appellant were about to commit a burglary when he became frightened and ran away. He returned to the scene after hearing gun shots and then participated in further criminal activity only because he was ordered to do so by appellant who pointed a gun at him. (Ibid.) Both defendants were convicted of murder. Appellant contended he was entitled to a separate trial because his codefendant's testimony conflicted with his defense and was "gravely prejudicial." (Id. at p. 312.)
The Turner court first held that the trial court did not abuse its discretion by consolidating the two cases for trial because "at the time of the motion to consolidate, the court was faced with two men charged with murders under circumstances in which all the events surrounding the crimes and ultimate arrests involved them jointly." (Turner, supra, 37 Cal.3d at p. 313.) The fact that the prosecution would be in a position to put on its case "then sit back and watch as defense counsel became the real adversaries" did not warrant separate trials. (Id. at p. 312.) The Turner court also found that the testimony by appellant's codefendant did not result in a denial of due process: "[N]o denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution." (Id. at p. 313.)
Riker contends that in Hardy, the California Supreme Court adopted guidelines from several federal court decisions that he asserts required a severance in this case. That contention is unavailing. Assuming that federal authority is relevant, the Hardy court noted that federal courts have "almost uniformly" construed the antagonistic defense doctrine "very narrowly." (Hardy, supra, 2 Cal.4th at p. 168.) Moreover, although the Hardy court found a review of federal court decisions enlightening, it did not adopt federal standards. (People v. Morganti (1996) 43 Cal.App.4th 643, 674 ["Although Hardy contains a rather cursory summary of the holdings of a few federal cases, we do not interpret Hardy as adopting those holdings or as intending to provide a definitive definition of an antagonistic defense which requires severance"].)
Moreover, in Zafiro v. United States (1993) 506 U.S. 534, the United States Supreme Court interpreted federal rules as requiring severance "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." (Id. at p. 539.) Our Supreme Court has endorsed the Zafiro standard as "[a]nother helpful mode of analysis of severance claims." (People v. Coffman (2004) 34 Cal.4th 1, 40.)
Riker points to nothing in this case showing there was any risk that a joint trial would compromise any specific trial right, nor that it would prevent the jury from making a reliable judgment. Riker's only argument is that Walker provided additional evidence of his guilt, and challenged Riker's version of events. However, as the Court of Appeal noted in People v. Wallace (1992) 9 Cal.App.4th 1515, 1520, footnote 4, "the complaint is that too much rather than too little truth might emerge in the process [of a joint trial]. While joint defendants might prefer otherwise, this dilemma may serve the public interest in accurate ascertainment of guilt or innocence . . . ."
2. There was no gross unfairness
"[N]o denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution." (Turner, supra, 37 Cal.3d at p. 313; Cummings, supra, 4 Cal.4th at p. 1287 ["That defendants have inconsistent defenses and may attempt to shift responsibility to each other does not compel severance of their trials"]; People v. Boyde (1988) 46 Cal.3d 212, 232 ["Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis"].)
The California Supreme Court has consistently held that a defendant attempting to exonerate himself by casting blame on a codefendant does not, by itself, create the kind of "'gross unfairness'" that will require reversal. (People v. Boyde, supra, 46 Cal.3d at p. 233 [reversal not warranted where codefendant in a joint trial testified that he participated in robbery, kidnapping and murder of store clerk only because he was under duress]; Cummings, supra, 4 Cal.4th at p. 1287 [reversal not warranted where codefendants defending against murder charge presented evidence that the other was the shooter where it was undisputed that each defendant was involved in the incident, "and the prosecution had offered evidence sufficient to support verdicts convicting both defendants"]; see also People v. Simms (1970) 10 Cal.App.3d 299, 305, 316-317 [no gross unfairness where codefendant testified in joint trial that defendant had committed the crimes but he had not participated].)
Thus, we reject Riker's contention that reversal is required because Walker's defense at trial was that he participated in the beating of Phippin, but Riker stabbed and robbed him.
Finally, most if not all of the evidence presented by Walker would have been admissible at a separate trial. For this reason as well there was no "gross unfairness" that deprived Riker of a fair trial or due process. (See Hardy, supra, 2 Cal.4th at p. 170 [no unfairness where "most of the evidence was admissible against all three defendants"].)
II. ADMISSION OF STATEMENTS BY NEVADA PSYCHOLOGISTS
Riker asserts that the court committed prejudicial error and violated his constitutional rights by admitting, over his objection, statements he made to his court-appointed psychologists in the Marble murder case which implicated him in the Phippin murder and were disclosed during that trial by his Nevada attorneys. We reject these contentions.
A. Background
Prior to the preliminary hearing in this matter, Riker filed a motion to exclude evidence of his statements to Drs. Glovinsky and Etcoff, arguing that the statements were protected under the attorney-client privilege under California and Nevada law, and that he had not personally waived the privilege. The People opposed the motion, asserting that when Riker placed his mental status in issue at the penalty phase of the Marble case by calling Drs. Glovinsky and Etcoff to testify on his behalf, Riker lost any privilege as to what he had told them.
The court held a hearing on the issue. During the hearing, Riker called his Nevada attorneys, Stephen Dahl and Mark Blaskey to testify. They stated that they retained Drs. Glovinsky and Etcoff to evaluate Riker's mental status after his decision to plead guilty. If the examinations raised doubts concerning his state of mind at the time he entered the plea, they intended to bring a motion to withdraw the plea. Based upon the results of their examinations and reports, defense counsel brought a motion to withdraw the plea on the basis that Riker was not competent to plead guilty, which was denied. (Riker, supra, 905 P.2d at pp. 707-709.)
Thereafter, the defense attorneys called Drs. Glovinsky and Etcoff as defense witnesses at the penalty phase of the proceedings to testify as to Riker's mental state. When they did so, they turned over the doctors' reports to the judges hearing the penalty phase and the prosecution. Attorney Blaskey testified that at the time he was unaware of any law which would have permitted him to redact the reports to omit inculpatory statements made by Riker as to the Phippin murder. According to Blaskey, Riker was not asked to, and did not, waive the attorney-client privilege with respect to those reports.
Blaskey also stated that he told Riker that the reports would remain confidential unless he (Blaskey) formed an opinion that they should be utilized. He told Riker prior to his interviews with Drs. Etcoff and Glovinsky that there was a possibility that their reports would be turned over to the prosecution and the court if he (Blaskey) made the decision that it was in Riker's best interest to do so.
During the penalty phase of the Nevada trial he formed the opinion that Drs. Etcoff and Glovinsky should be called to testify, and their reports should be utilized, in trying to obtain a sentence of life without possibility of parole, as opposed to death. Blaskey also testified that during the penalty phase Riker wanted to be sentenced to life, not death, and made a statement to the court requesting that they not give him the death penalty. Riker never voiced any objection to Drs. Etcoff and Glovinsky being called to the stand during the penalty phase of the trial. Riker understood that Blaskey was acting pursuant to Riker's desire to avoid the death penalty when Blaskey called them to testify and introduced their reports.
The court ruled the statements were admissible. In doing so, the court found that Riker had not been advised of a privilege attaching to his statements to the doctors and had no part in the decision to put the doctors on the stand. However, the court found that any privileges were waived by his attorney's disclosure of the privileged materials. Drs. Glovinsky and Etcoff then testified at the preliminary hearing.
Thereafter, Riker filed a motion to dismiss under section 995, arguing the testimony of Drs. Glovinsky and Etcoff was improper and inadmissible. The court denied the motion. Riker filed a petition for writ of prohibition, which was summarily denied by the Fourth District Court of Appeal, Division Two, in July 2003. A petition for review in the California Supreme Court was denied in November 2003.
By order of October 25, 2005, and on its own motion, the Fourth District Court of Appeal, Division Two, took judicial notice of the writ proceedings in case Nos. E033302, E034134, E034162, E035237, E036246, E036992 and E037799.
Riker also brought an in limine motion to exclude the evidence at trial. The court denied the motion. Riker filed a petition for writ of mandate, which was summarily denied by the Fourth District Court of Appeal, Division Two. His subsequent petition for review to the California Supreme Court was also denied.
As detailed, ante, Drs. Glovinsky and Etcoff testified at trial concerning the admissions made by Riker during their examinations of him.
B. Analysis
The parties do not dispute that the communications between Riker and Drs. Glovinsky and Etcoff, unless waived, were protected by both the attorney-client and psychotherapist privileges. (People v. Clark (1993)5 Cal.4th 950, 1005 (Clark).)
Evidence Code section 912, subdivision (a) provides the circumstances under which such privileges are waived and states in part:
"[T]he right of any person to claim a privilege provided by Section 954 (lawyer-client privilege) . . . 1014 (psychotherapist-patient privilege) . . . is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege."
In Clark, supra, 5 Cal.4th 950, psychiatrist Peter Mayland was appointed to assist the defendant in the preparation of his defense. (Id. at p. 1004.) During a pretrial motion to suppress his confession, the defendant called the psychiatrist to testify, wherein the psychiatrist opined that, because of defendant's mental state, it was doubtful that the defendant could voluntarily waive his constitutional rights. (Id. at p. 1005.) At trial, the defendant called several other experts to testify that he suffered "from a 'rage reaction' at the time of the crimes that prevented him from formulating the requisite intent to kill." (Ibid.) To rebut this testimony, the prosecutor called Dr. Mayland to use the defendant's statements to him during his examination of the defendant to impeach the other defense experts. (Ibid.) The defendant objected to this evidence, but his objection was overruled.
The California Supreme Court held that the court properly admitted the defendant's statements to Dr. Mayland because the defendant had waived any privilege: "The Attorney General asserts that defendant waived the attorney-client privilege protecting his statements to Mayland when he called Mayland to testify during the suppression hearing. The Attorney General is correct. By calling Mayland to the stand during the suppression hearing, defendant manifested an intent that his communications with Mayland be revealed to third parties and that the attorney-client privilege be waived." (Clark, supra, 5 Cal.4th at pp. 1005-1006.)
In People v. Haskett (1990) 52 Cal.3d 210, in the penalty phase of trial, a defense psychiatrist testified that the defendant was mildly retarded and capable of rehabilitation. On cross-examination, the doctor testified that the defendant had admitted the charged crimes to him. The penalty was reversed, and at the second penalty trial, the psychiatrist was called by the prosecution as a rebuttal witness. Over defense objections, the doctor repeated his testimony concerning the defendant's admissions. The California Supreme Court upheld the admission of those statements, holding: "The privilege was waived . . . when defendant called Dr. Stalberg to testify on his behalf at the first trial . . . . '. . . Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.' [Citation.] Defendant failed to object to any of the doctor's testimony at the first trial, effectively waiving the privilege. [Citation.]" (Id. at pp. 242-243.)
In People v. Combs (2004)34 Cal.4th 821 (Combs), a psychiatrist examined the defendant and provided a report to defense counsel, which included inculpatory statements made by the defendant. (Id. at p. 862.) Although the psychiatrist did not testify, the defense experts that did had read and relied upon his report in forming their opinions. (Id. at p. 863.) Our high court rejected the defendant's argument that the trial court erred in permitting the prosecutor to call the psychiatrist as a witness, stating that "[d]efendant waived any protections that the attorney-client privilege, the attorney work-product doctrine, and the privilege against self-incrimination afforded him regarding all matters that [the testifying defense experts] considered or on which they relied, including [the psychiatrist's] report." (Combs, supra, 34 Cal.4th at p. 864 .)
Likewise in this case, by disclosing the statements Riker made to Drs. Glovinsky and Etcoff based upon his mental state defense during the penalty phase of the Nevada case, he waived the attorney-client and psychotherapist privileges. Riker "manifested an intent that his communications with [Drs. Glovinsky and Etcoff] be revealed to third parties and that the attorney-client [and psychotherapist] privilege[s] be waived." (Clark, supra, 5 Cal.4th at pp. 1005-1006.)
Riker claims that because he was the holder of the privilege only he personally could waive that privilege. Because his Nevada attorneys never obtained his express waiver of either the attorney-client or psychotherapist privilege, he argues that there was no waiver and the court erred in allowing Drs. Glovinsky and Etcoff to testify.
However, waiver of such privileges may be express or implied. The client as holder of the privilege (Evid. Code, §§ 953, 954) can waive the privilege through the actions of his attorney if the attorney acts with the client's consent. Consent can be inferred when the attorney acts for the client's benefit. (Klang v. Shell Oil Co. (1971) 17 Cal.App.3d 933, 938.)
In this case, the evidence shows that Riker's Nevada counsel called Drs. Glovinsky and Etcoff to the stand during the penalty phase of the Marble murder trial to attempt to save him from a sentence of death. Counsel had told Riker that Drs. Glovinsky's and Etcoff's reports might need to be disclosed if counsel deemed it necessary to do so. Counsel testified he understood he was acting pursuant to Riker's desire to avoid the death penalty when he called them to testify and turned over their reports. Riker himself made a statement to the three-judge sentencing panel requesting that he be sentenced to a life term, not the death penalty. From this evidence the court could conclude that there was an implied waiver as the attorneys were working on Riker's behalf and with a strategy to which he consented.
Riker also asserts that admission into evidence of his statements to the psychologists violated his privilege against self-incrimination under state and federal law. In support of this contention, Riker relies on "an exception first recognized in Tarantino v. Superior Court (1975)48 Cal.App.3d 465, 470 . . . and approved in People v. Arcega (1982) 32 Cal.3d 504, 521-523, under which statements that a defendant makes in the course of a mental competency examination pursuant to section 1369 may not be used in a trial on the question of his guilt. The immunity created by Tarantino, however, is designed to obviate the compelled self-incrimination inherent in a court-ordered competency examination. (Tarantino, supra, 48 Cal.App.3d at p. 469 ['As to the right against self-incrimination, we find no violation in compelling a defendant to submit to examination by court-appointed psychiatrists under section 1367 et seq., at least under a judicially declared immunity reasonably to be implied from the code provisions']; People v. Arcega, supra, 32 Cal.3d at p. 522 ['This rule [of immunity] is necessary to ensure that an accused is not convicted by use of his own statements made at a court-compelled examination'].) A defendant's voluntary choice to take the stand during the competency trial falls outside the scope of the Tarantino immunity." (People v. Dunkle (2005) 36 Cal.4th 861, 905.)
Here, the interviews conducted by Drs. Glovinsky and Etcoff were not the result of a court-ordered competency examination. The interviews were voluntary, and Riker later called the doctors voluntarily as witnesses to support his defense in the penalty phase of the Marble murder case. Accordingly, no immunity applies and Riker's privilege against self-incrimination was not implicated.
III. ADMISSION OF NEVADA MURDER CONVICTION
In a supplemental opening brief Riker asserts that the court erred by denying his motion to strike his Nevada conviction and by allowing into evidence the fact of his guilty plea and statements he made as a part of that plea, without first determining the constitutional validity of the guilty plea and conviction. We reject this contention.
A. Background
In April 2003 Riker filed a motion to strike the prior murder special circumstance, alleging that his Nevada murder conviction was constitutionally infirm because, prior to his guilty plea in the Nevada case, the trial judge failed to adequately inquire into the reasons behind his request to relieve the public defender's office, erred in denying the motion, and violated his right to counsel by hearing the motion in the absence of his attorneys. The court granted the motion. However, the People filed a writ of mandate and in October 2004 Division Two of this court ordered the trial court to vacate its order striking the prior murder special circumstance allegation. (People v. Superior Court (Riker) (Sept. 2, 2004 E034134) [nonpub. opn.].) In that case, the Fourth District Court of Appeal, Division Two held that the court erred in granting the motion to strike because it lacked jurisdiction to consider whether Marsden/Brown error occurred in the Nevada proceedings because such error was not cognizable after a guilty plea. (People v. Superior Court (Riker), supra, E034134.)
People v. Marsden (1970) 2 Cal.3d 118; Brown v. Craven (9th Cir. 1970) 424 F.2d 1166.
In September 2004 Riker filed a second motion to strike the special circumstance allegation, contending the Nevada conviction was unconstitutional because errors by the Nevada trial judge in handling his request to relieve the public defender's office and ineffective assistance of counsel resulted in a guilty plea that was not voluntary and intelligent. In October 2004 Riker filed a third motion to strike the special circumstance, asserting his guilty plea was unconstitutional because the Nevada court failed to conduct a hearing into Riker's competence to enter the plea.
In November 2004 the court heard and denied Riker's second and third motions to strike. The court found as to both motions that the grounds raised did not survive Riker's guilty plea. The court also found, as to the third motion, that the Nevada court did not err in failing to conduct a competency hearing, and, even if there was error, it was harmless because Riker was found to be competent by the Nevada Supreme Court in Riker, supra, 905 P.2d 706.
B. Analysis
Contrary to Riker's assertion in his supplemental opening brief, the court did rule upon the constitutionality of his prior conviction. As to the claims in the first motion to strike that the Nevada trial judge failed to adequately inquire into the reasons behind his request to relieve the public defender's office, erred in denying the motion to relieve counsel, and violated his right to counsel by hearing the motion in the absence of his attorneys, Division Two of the Fourth District Court of Appeal, in People v. Superior Court (Riker), supra, E034134, ruled that such issues may not be raised after a guilty plea. The trial court properly recognized it was compelled to follow that ruling.
The court ruled that the issues raised in the second and third motions were similarly not cognizable following Riker's guilty plea. Riker has not challenged the merits of that ruling. Finally, the court denied the third motion on the basis that the Nevada court did not err in failing to hold a competency hearing and that the Nevada Supreme Court had already rejected Riker's claim that he was not competent to plead guilty. (See Riker, supra, 905 P.2d at p. 711.) The Nevada Supreme Court rejected Riker's contention that was based upon the premise that there was a different standard of competence required to plead guilty than to stand trial. (Ibid.) That assertion was unavailing as the standard of competence was the same under both circumstances. (Ibid.; Godinez v. Moran (1993) 509 U.S. 389, 400.)
Accordingly, the court did not err by failing to address the constitutionality of Riker's guilty plea in the Nevada case.
IV. CONVICTION OF ROBBERY AND GRAND THEFT
Riker asserts that it was improper for him to be convicted of robbery and grand theft, as the latter crime is a lesser included offense of the former. The People concede that this contention is correct. We also conclude that Riker's position is well taken and reverse his conviction for grand theft.
Multiple convictions are prohibited where one offense is necessarily included in another. (People v. Ortega (1998) 19 Cal.4th 686, 692.) "Theft, in whatever form it happens to occur, is a necessarily included offense of robbery." (Id. at p. 699.) Thus, "a defendant may not be convicted of both robbery and grand theft based upon the same conduct." (Ibid.) Accordingly, Riker's conviction on count 3 of the lesser included offense of grand theft must be reversed.
V. CONVICTION OF ROBBERY AND UNLAWFULLY TAKING A VEHICLE
Riker asserts that he could not legally be convicted of both robbery and unlawfully driving or taking a vehicle. This contention is unavailing.
Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Section 654 applies only where multiple punishment arises out of statutory violations produced by the same "act or omission." (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) "However, because the statute is intended to ensure that defendant is punished 'commensurate with his culpability' [citation], its protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.]" (Ibid.)
Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Whether a course of conduct is divisible and gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. (Harrison, supra, 48 Cal.3d at p. 335 ["It is [a] defendant's intent and objective, not the temporal proximity of his offenses, which determines whether the transaction is indivisible"].) If all of the offenses are incidental to one objective, the court may punish the defendant for any one of the offenses, but not more than one. If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were part of an otherwise indivisible course of conduct. The purpose of the statute is to ensure that a defendant's punishment will be commensurate with his culpability. (Neal v. State (1960) 55 Cal.2d 11, 19-20.)
"Although the question of whether [a] defendant harbored a 'single intent' within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law." (Harrison, supra, 48 Cal.3d at p. 335.) The sentencing court, rather than the jury, determines the defendant's intent and objective under section 654. (People v. Cleveland (2001) 87 Cal.App.4th 263, 268.) A trial court's express or implicit finding that the crimes at issue were divisible should be upheld if there is evidence to support it. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
Riker asserts that his robbing of Phippin's personal property and the taking of the vehicle were but one theft. In support of this position Riker cites cases involving robbery and grand theft of a vehicle. (See People v. Irvin (1991) 230 Cal.App.3d 180, 185 (Irvin); People v. Ortega (1998) 19 Cal.4th 686, 699-700; People v. Gamble (1994) 22 Cal.App.4th 446, 450; People v. Rush (1993) 16 Cal.App.4th 20, 25.) As the Court of Appeal stated in Irvin, supra, 230 Cal.App.3d at page 185, a carjacking case where the defendant took the victim's money and purse, "We find no authority for the proposition that a robber may be charged with and convicted of a separate robbery, or an additional offense of grand theft, because he or she took more than one item from a solitary victim during a single course of conduct."
However, in this case the robbery of Phippin's personal property and the taking of his van could have had distinct objectives. The robbery could have had a monetary objective, while the taking of the van could have furthered their intent to escape the scene of the crime. Further, this case may be distinguished from Irvin, supra, 230 Cal.App.3d 180, as there were two victims because the van was owned by Phippin's employer, not Phippin himself. Thus, Riker was properly convicted of robbery and unlawfully taking or driving a vehicle.
V. ABSTRACT OF JUDGMENT
As discussed above, Riker was sentenced to the middle term of three years on the robbery charge; the middle term of two years on the grand theft charge; and the middle term of two years on the unlawful taking of a vehicle charge, which were stayed under section 654. The clerk's minutes accurately reflect that the sentences on counts 2, 3 and 4 were stayed under section 654, but the abstract of judgment does not. Accordingly, we direct the court to correct the abstract of judgment to reflect the sentence imposed by the court. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
VI. PAROLE REVOCATION FINE
The court imposed, under section 1202.45, a parole revocation fine of $10,000, which it stayed pending successful completion of parole. However, because Riker was sentenced to life without the possibility of parole, the parole revocation fine must be stricken.
DISPOSITION.
Riker's conviction on count 3 of the lesser included offense of grand theft is reversed. The trial court is directed to correct the abstract of judgment to reflect the sentence imposed and to strike the parole revocation fine. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.