From Casetext: Smarter Legal Research

People v. Webb

California Court of Appeals, Fourth District, First Division
Mar 20, 2008
No. D049792 (Cal. Ct. App. Mar. 20, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JAMES WEBB, Defendant and Appellant. D049792 California Court of Appeal, Fourth District, First Division March 20, 2008

NOT TO BE PUBLISHED

HALLER, J.

APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed as modified. Super. Ct. No. SCN197961

James Webb appeals from a judgment convicting him of first degree murder, with a special circumstance finding that the murder occurred during the commission of kidnapping. He asserts the trial court erred by (1) giving a consciousness of guilt instruction pertaining to the defendant without giving a comparable instruction pertaining to prosecution witnesses; (2) using Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 220 to define the prosecution's burden to prove guilt beyond a reasonable doubt; (3) failing to give an accomplice instruction for the special circumstance kidnapping allegation; and (4) denying his request for pretrial discovery of the current addresses of prosecution witnesses. We reject his arguments of error, except (as conceded by the People) we agree the trial court erred by failing to give the accomplice instruction for the special circumstance kidnapping allegation. However, we find the error harmless. The People also concede a parole revocation restitution fine was improperly imposed and should be stricken from the record.

FACTUAL AND PROCEDURAL BACKGROUND

Webb's unopposed motion to correct a transcription error in the reporter's transcript is granted. We deem the word "page" changed to the word "maybe" on page 442, line 28 of the reporter's transcript. (Cal. Rules of Court, rule 8.155(c)(1).)

On July 22, 1989, Webb repeatedly shot and stabbed Michael Cowan. Webb's girlfriend, Dorothy Jean Southworth (Jean), was driving Webb and Cowan in her husband's vehicle when Webb shot Cowan. As we shall detail below, Jean did not initially report the murder, but eventually became the primary witness tying Webb to the murder.

Cowan's body was found on July 23, 1989, in an orange grove off Pauma Reservation Road in Pauma Valley. Cowan had five gunshot wounds and 14 stab wounds. In January 1990, CrimeStoppers received an anonymous tip providing information about the murder. The tipster, later identified as Sandra Cohan, was Jean's close friend. According to Cohan, on August 24, 1989, Jean contacted Cohan in a "state of complete panic." Jean told Cohan that two or three weeks earlier Webb had killed a man with a .25-caliber gun. Jean relayed the details of the killing to Cohan, and Cohan took notes about what Jean told her. Jean told Cohan that Webb had been threatening to kill her. She told Cohan she was going out of town and if she did not return, Cohan should tell the police about Webb. While Jean was traveling with Webb, she periodically contacted Cohan. Cohan contacted CrimeStoppers in January 1990 because she had not heard from Jean for several weeks and she was afraid Jean had been killed.

Based on the information received from Cohan, the authorities went to the residence of Jean's husband, Gerald Southworth (Jerry). Jerry permitted them to examine his vehicle, in which the murder had reportedly occurred. The authorities discovered bloodstains and a bullet in the rear of the car. Testing showed the bullet in the car and bullets in Cowan's body were from the same .25-caliber gun, and the bloodstains in the car contained DNA that matched Cowan's DNA.

During Jean's relationship with Webb, she was separated from Jerry but remained on friendly terms with him. Jerry had lent his car to Webb on the day of the homicide.

In December 1989, Jean and Webb were arrested for a drug-related offense. While in custody on the drug charge in 1990, Jean was charged with being an accessory after the murder. Although the authorities were intending to eventually charge Webb with the murder, he had not yet been charged. Jean told the investigators she did not know anything about the murder. During this time period, Jean told Cohan she was afraid to testify against Webb because he had threatened her entire family. Cohan also became fearful of testifying against Webb. When Cohan was called to testify at Jean's preliminary hearing, Cohan asserted her Fifth Amendment privilege and refused to testify. The charges against Jean were dismissed.

In March 1996, Jean, who had ended her relationship with Webb, went to the district attorney's office to complain that Webb was stalking her. During this visit, Jean told the deputy district attorney about Cowan's murder.

Jean described the circumstances leading to the killing as follows. On the day of the murder, Webb told Jean he had given Cowan $200 to buy ephedrine (a chemical used to make methamphetamine). When Cowan called to say he was ready to be picked up, Webb told Jean to drive him to the Del Mar racetrack to get Cowan. Jean drove Webb in Jerry's car. When they arrived at the racetrack, Cowan got into the back passenger-side seat of the two-door vehicle. Jean drove away, with Webb in the front passenger seat. While they were driving, Cowan told Webb that he had lost the money Webb had given him at the racetrack. Webb became angry; he was screaming at Cowan and reaching back and hitting him. Cowan said he was sorry; he would "make it up" to Webb; and Webb did not need to "do this." As they were driving on Interstate 5, Webb pulled out a gun and shot it into the back seat. Cowan (who apparently had not been shot) continued apologizing and promising to "take care of it." Webb, who was still yelling and hitting Cowan, told Jean to continue driving. Cowan told Webb he could get some methamphetamine equivalent in value to the money Webb had given him.

Webb told Jean to drive to Frank Martinez's residence in San Marcos. Webb told Cowan the money belonged to Martinez and Martinez would be mad and might want to kill Cowan. Once they arrived at Martinez's home, Webb and Jean exited the vehicle. Martinez came outside, and Webb asked Martinez to go with them. Hoping to de-escalate the situation, Jean told Martinez not to come. Webb and Martinez walked to a room behind the house. As Webb walked away, he told Jean not to let Cowan (who was still in the car) go anywhere. Jean stood by the front of the car with her back to Cowan because she did not want Cowan to think she would stop him if he wanted to leave. Cowan did not leave, and when Webb returned he directed Jean to drive to Escondido.

Cowan told Webb to stop at a phone booth so he could call a friend in Valley Center who could get Webb some drugs to replace the money. Webb let Cowan out of the car at a phone booth. Cowan went into the phone booth, and Webb stood directly behind him. When they returned to the car, Webb stated they should go to Valley Center where there were some people who would have drugs. When they arrived at this location, Cowan rolled down his window and asked for an individual; the person was not there, so they left. Cowan stated they should go to Pala or Pauma Valley where there was a man who he knew would have drugs. Webb, who was holding the gun on his lap, responded that the man "better have" the drugs.

As Jean was driving in an isolated rural area towards their next destination, Webb turned around and repeatedly shot Cowan. Jean slammed on the brakes, but Webb screamed that she should not stop. Webb directed Jean to drive to an area where there were only orange and avocado groves, and then told her to pull over. Webb took off his boots and told Jean to help him get Cowan out of the car. Jean refused. Webb removed Cowan from the car and put him in the orange grove. When Webb returned to the car, he had a knife in his hand and he told Jean he had cut Cowan's throat.

In shock, Jean drove back to their motel in El Cajon. At the motel, Jean laid down on the couch. Webb retrieved cleaning supplies from the kitchen and went back and forth from the kitchen to the car. Some time later, Webb, accompanied by Jean, returned the vehicle to Jerry's residence.

After obtaining Jean's description of the killing, a district attorney investigator interviewed Martinez in or about April 1996. Martinez told the investigator he did not know Webb or Jean. In January 2002, when investigators again contacted Martinez, he acknowledged that he knew Webb and Jean, and that they had come by his house in or around July 1989. Martinez stated that Jean got out of the car, knocked on his door, and told him Webb wanted to talk to him outside. Martinez went outside and talked to Webb as the two men stood by the trunk of the car. Martinez noticed there was a man sitting in the back seat of the vehicle. Webb wanted Martinez to go with them for a ride, but Martinez declined. Jean told Martinez he did not have to go with them. Webb told Martinez he was going to "get rid of" the man in the car. About one or two weeks later, Webb came to Martinez's house and gave him a knife. Webb told Martinez that he had "used the knife on a guy." Martinez threw the knife away.

At trial, Martinez denied that Webb told him anything about his intentions towards the man in the car or his use of the knife. Martinez's statements in this regard were presented via the testimony of a district attorney investigator who interviewed Martinez in 2002.

In August 2005, Webb was charged with Cowan's murder. A jury convicted him of first degree murder, and found he personally used a handgun and knife and the murder was committed while he was engaged in kidnapping. Webb was sentenced to life without the possibility of parole, plus a four-year determinate term for the personal gun use and two prior prison terms.

DISCUSSION

I. Consciousness of Guilt Instruction

The trial court instructed the jury in the language of CALCRIM No. 371, which states that if the defendant tries to hide evidence, this conduct may show he was aware of his guilt. At trial, Webb unsuccessfully objected to the instruction, contending that it improperly singled out the defendant in a case where prosecution witnesses (i.e., Jean, Martinez, and Cohan) also tried to hide evidence. On appeal, he contends the instruction either should not have been given, or should have been modified to equally highlight the potential negative inferences that could be drawn against the prosecution based on the furtive conduct of prosecution witnesses. To support this argument, he points to Jean's conduct of failing to disclose the murder to the authorities for several years, Martinez's conduct of throwing away the knife and denying that he knew Webb or Jean, and Cohan's conduct of refusing to testify at Jean's preliminary hearing.

CALCRIM No. 371 states: "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."

Webb does not dispute that CALCRIM No. 371 was warranted based on the evidence showing that after the murder he cleaned the car and gave a knife to Martinez. Thus, there is no merit to his contention that the instruction should not have been given. To the extent there could be error, it would arise from the trial court's failure to also give an instruction telling the jury that it could consider evidence of furtive conduct on the part of prosecution witnesses to infer consciousness of guilt on the part of these witnesses.

However, a consciousness of guilt instruction related to prosecution witnesses is essentially a pinpoint instruction derived from a third party culpability defense. (See People v. Henderson (2003) 110 Cal.App.4th 737, 741-743 [when defendant presents third party culpability defense, trial court should, upon request, instruct jury on consciousness of guilt arising from third party's flight].) Webb did not request such a pinpoint instruction, and the trial court did not have a sua sponte duty to give it. (Ibid.)

In any event, the record shows Webb did not pursue a third party culpability defense based on the conduct of Jean, Martinez, or Cohan. Before trial, the prosecution filed a successful motion to preclude Webb from presenting third party culpability evidence absent a foundational hearing showing the defense was viable. (See People v. Panah (2005) 35 Cal.4th 395, 481 [third party culpability defense, which raises reasonable doubt of defendant's guilt, requires direct or circumstantial evidence linking third person to actual perpetration of crime].) The court's ruling granting this motion is not challenged on appeal. Although the evidence showed that Jean was present during the homicide and that Jean, Martinez, and Cohan engaged in conduct impeding the murder investigation or trial, Webb does not point to any evidence suggesting that these witnesses might have killed Cowan.

In closing arguments to the jury, the prosecutor argued there was no evidence that Jean, Jerry, Martinez, or Cohan might have killed Cowan, and defense counsel essentially conceded this point. Defense counsel argued that it was "possible" Jean herself killed Cowan, but acknowledged this was not likely. Webb does not assert, nor does the record show, that the "possible" inference that Jean killed Cowan (as opposed to Jean merely playing an accomplice role) was sufficient to create a reasonable doubt that Webb was the killer to support a third party culpability defense. (See People v. Roldan (2005) 35 Cal.4th 646, 715-716; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269 [no duty to instruct on defense theory supported by minimal, insubstantial evidence].)

In the absence of a third party culpability defense, the jury was not called upon to consider whether Jean, Martinez, or Cohan engaged in conduct that supported an inference that they—not the defendant—may have murdered Cowan. Webb was, of course, free to challenge the credibility of the prosecution witnesses based on their furtive conduct. However, because their possible guilt was not at issue, a consciousness of guilt instruction directed at these prosecution witnesses was not relevant to the issues in this case.

Given our holding that the pinpoint consciousness of guilt instruction was not appropriate, Webb's assertion that his counsel provided ineffective representation by failing to request such an instruction also fails.

II. Beyond-a-Reasonable-Doubt Instruction

The trial court instructed the jury on the prosecution's burden to prove guilt beyond a reasonable doubt using the language of CALCRIM No. 220. Webb unsuccessfully objected to this instruction, contending the court should use the language of Penal Code section 1096. Webb asserts that CALCRIM No. 220 improperly dilutes the meaning of the beyond-a-reasonable-doubt standard.

Subsequent statutory references are to the Penal Code.

Section 1096 defines the beyond-a-reasonable-doubt standard as follows:

"A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: 'It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.'" (Italics added.)

CALCRIM No. 220 defines the beyond-a-reasonable-doubt standard as follows:

"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond reasonable doubt. . . . [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." (Italics added.)

Webb argues that CALCRIM No. 220 dilutes the beyond-a-reasonable-doubt standard by telling the jury that it need not eliminate "all possible doubt." He contends it is essential that the jury be told it need not eliminate "mere possible doubt," as stated in section 1096. He posits that the phrase "all possible doubt" allows the jury to convict with a higher degree of doubt than the phrase "mere possible doubt."

We are not persuaded. In evaluating a claim that an instruction is misleading, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Cain (1995) 10 Cal.4th 1, 35-36.) We consider the instructions as a whole, not just in isolated parts. (People v. Smithey, supra, 20 Cal.4th at p. 963.) The crux of the beyond-a-reasonable-doubt standard is that the jury must have "an abiding conviction" that the defendant is guilty. Consistent with section 1096, CALCRIM No. 220 informs the jury of this definition. Further, the instruction and the Penal Code tell the jury that they need not eliminate every iota of doubt (even if unreasonable), because given the limits on human knowledge, there can always be some possible or imaginary doubt. (See Victor v. Nebraska (1994) 511 U.S. 1, 17.) This concept is conveyed to the jury whether the jury is told they need not eliminate "all possible doubt" or told they need not eliminate "mere possible doubt." Considering the instruction as a whole, there is no reasonable likelihood the jury misunderstood the meaning of the beyond-a-reasonable-doubt standard.

Webb further contends that CALCRIM No. 220's statement that the jury must "impartially compare and consider all the evidence" fails to convey the intended message that the jury must be unbiased. He asserts that this language improperly suggests the jury should treat all the evidence equally, in contravention of special evidentiary rules applicable to such evidence as accomplice testimony. The contention is unavailing. The instruction does not tell the jury to treat all the evidence the same; it tells the jury to act impartially when comparing and considering the evidence. Further, the jury was given specific instructions on how to evaluate particular types of evidence such as accomplice testimony. Reading the instructions as a whole, there is no reasonable likelihood CALCRIM No. 220 caused the jurors to ignore other, more specific instructions addressing the evaluation of certain types of evidence. There was no error in this regard.

III. Failure to Give Accomplice Instruction for Special Circumstance Kidnapping Allegation

Webb challenges the trial court's failure to instruct the jury regarding the rules governing its evaluation of accomplice testimony as it pertained to the special circumstance allegation of murder during the commission of a kidnapping. (§ 190.2, subd. (a)(17).) The People properly concede this error. We conclude the error was not prejudicial.

A conviction cannot be based solely on the uncorroborated testimony of an accomplice. (§ 1111.) If there is evidence from which the jury could find a witness to be an accomplice, the court must sua sponte instruct the jury on accomplice testimony. (People v. Lewis (2001) 26 Cal.4th 334, 369; People v. Zapien (1993) 4 Cal.4th 929, 982.) The accomplice instruction informs the jury that if it finds the witness is an accomplice, the witness's testimony should be viewed with caution and must be corroborated by evidence, independent of the accomplice's testimony, that tends to connect the defendant with the commission of the offense. (People v. Zapien, supra, 4 Cal.4th at p. 982; People v. Bunyard (1988) 45 Cal.3d 1189, 1206; see CALCRIM No. 334.) The accomplice instruction is required because an accomplice may try to shift the blame in an effort to minimize his or her culpability. (People v. Tobias (2001) 25 Cal.4th 327, 331.) However, the corroborating evidence necessary to support an accomplice's testimony may be slight, entirely circumstantial, and entitled to little consideration when standing alone. (People v. Zapien, supra, 4 Cal.4th at p. 982.) The corroborating evidence must relate to some act or fact which is an element of the crime, but it need not be sufficient in itself to establish every element of the crime. (Ibid.; People v. Bunyard, supra, 45 Cal.3d at p. 1206.) The corroborating evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (People v. Lewis, supra, 26 Cal.4th at p. 370.)

Here, the trial court correctly instructed the jury that if it found Jean was an accomplice to the murder, her testimony should be viewed with caution and must be corroborated before it could be used to support a murder conviction. As conceded by the People, the accomplice instruction should also have been given for the special circumstance allegation that the murder occurred during the commission of a kidnapping. (People v. Hamilton (1989) 48 Cal.3d 1142, 1177 [when special circumstance allegation requires proof of some other crime, that crime cannot be proved by uncorroborated testimony of accomplice]; see CALCRIM No. 707.)

The failure to give an accomplice instruction is harmless if there is sufficient corroborating evidence in the record. (People v. Lewis, supra, 26 Cal.4th at p. 370.) As noted, corroborating evidence may be slight, may be entitled to little consideration when standing alone, and need not establish all the elements of the crime. (Ibid.; People v. Zapien, supra, 4 Cal.4th at p. 982.) "The key inquiry is whether the evidence tends to connect the defendant with the crime so that the jury may be satisfied that the accomplice is telling the truth." (People v. Douglas (1990) 50 Cal.3d 468, 506, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)

Here, there was sufficient corroborating evidence of kidnapping to render the instructional error harmless. The offense of kidnapping consists of movement of the victim accomplished by force or fear. (§ 207, subd. (a); People v. Majors (2004) 33 Cal.4th 321, 326-327.) Even when the movement of the victim is voluntary at its inception, kidnapping occurs if the movement is continued by means of force or fear. (People v. Camden (1976) 16 Cal.3d 808, 814.) Jean's testimony supported a kidnapping finding based on an inference that Cowan stayed in the car because he was afraid that if he tried to leave without compensating Webb for the money, Webb would kill him then or later. Jean's testimony on this point was corroborated by the evidence that Martinez observed a man in the back of the vehicle and that Webb told Martinez he was going to "get rid of" the man, as well as the evidence that the victim's body was found at a location away from Martinez's residence. Although there were some discrepancies in the evidence pertaining to Jean's and Martinez's reporting of the events at Martinez's residence, Martinez's report coincided on the essential facts corroborative of a kidnapping—i.e., Cowan, accompanied by Webb, was in the back seat of the vehicle under possibly threatening circumstances and was subsequently transported away from Martinez's residence.

Webb argues that in this particular case we should evaluate the error by applying the harmless-beyond-a-reasonable-doubt standard because, unlike a case where no accomplice instruction was given at all, here the jury may have been affirmatively led to believe that corroboration of Jean's testimony was not required to prove the kidnapping allegation. To support this argument, he points to the instruction telling the jury that corroboration was required for the murder charge (without referencing the kidnapping allegation), and to statements by the prosecutor during closing argument that could be construed as suggesting that corroboration was not required for the kidnapping allegation.

Typically, reversal for failure to give the accomplice instruction is not required even if there is insufficient corroboration, unless it is reasonably probable a result more favorable to the defendant would have been reached. (People v. Miranda (1987) 44 Cal.3d 57, 101, disapproved on another point in People v. Marshall, supra, 50 Cal.3d at p. 933, fn. 4.)

During closing arguments the prosecutor asserted that Jean was not an accomplice, stating: "An accomplice is somebody who can be prosecuted for the same crime, for the murder. For the murder, not for kidnapping, not for an accessory after the fact. For murder." The prosecutor reiterated this argument in rebuttal: "[H]e's got to prove by a preponderance of the evidence . . . that she is . . . an accomplice to murder, not to accessory after the fact, not to kidnapping. To murder."

The record here shows no prejudice even applying the harmless beyond a reasonable doubt standard urged by Webb. Under this standard, the People must show there is no reasonable possibility the error might have affected the verdict. (People v. Lewis (2006)139 Cal.App.4th 874, 885, 887.) The jury's verdict finding Webb guilty of murder reflects that it was persuaded that the corroborating evidence was sufficient to connect Webb to the murder and to show that Jean was telling the truth. The facts described by Jean to show Webb committed the murder and the special circumstance kidnapping were, by their nature, intertwined; i.e., Webb's assault and threats to Cowan that ultimately culminated in his death, and that caused Cowan to stay with Webb out of fear for his life, consisted of the same course of conduct. Further, the evidence that Martinez saw a man in the back of the vehicle, whom Webb stated he was going to "get rid of," provided corroboration for Webb's commission of both murder and kidnapping. Given the intermixed facts pertaining to the murder and special circumstance kidnapping charges, the jury's finding that Jean's testimony about the murder was corroborated and truthful, compels a conclusion that the jury likewise believed that her testimony pertinent to the kidnapping charge was corroborated and truthful. There is no reasonable possibility the failure to give the accomplice instruction regarding the special circumstance kidnapping allegation might have affected the jury's true finding on this allegation.

IV. Denial of Request for Discovery of Witnesses' Current Addresses

Background

In December 2005, prior to trial, the defense requested that the prosecution disclose the current addresses of Jean, Jerry, and Cohan so the defense could investigate their reputations for veracity in their neighborhood. The prosecutor declined to release the current addresses, stating Webb posed a threat of danger to the witnesses. However, the prosecutor provided Webb's counsel with the witnesses' addresses at the time of the 1989 homicide and records of their criminal convictions, if any.

Webb's counsel also requested Martinez's current address. Martinez, who lived at the same address as at the time of the murder in 1989, did not object to this disclosure, and his address was provided to the defense.

Defense counsel filed a motion to require the prosecutor to disclose the current addresses. In a companion motion to dismiss the charges for delay in prosecution, defense counsel asserted that due to the 16-year passage of time between the homicide and trial, the defense had not been able to find persons in the witnesses' 1989 neighborhoods who knew the witnesses. Defense counsel asserted the prosecution's case depended on Jean's credibility, because apart from her statements there was little to connect Webb to the homicide. Further, the credibility of Jerry and Cohan was important because their statements corroborated Jean's statements. Defense counsel posited that Webb had done nothing in the last decade to put the witnesses in fear; there was no evidence that he was a gang member or that he had conspired with others to menace the witnesses; he was currently in jail and would not be released unless he was acquitted; and the addresses would be known only to defense counsel and the defense investigator and would not be provided to the defendant.

The trial court deferred ruling on the motion to dismiss until the end of trial, at which point the court denied the motion. The court found the delay in prosecution was justified by the prosecution's need to obtain corroboration of Jean's statements.

In support of his opposition to the disclosure, the prosecutor provided transcripts of police interviews with Jean and Cohan in March 1996, which contained details of Webb's violent conduct. In the police interviews, Jean described at length Webb's violent and abusive conduct during the course of their relationship and his threats to kill her if she revealed that he killed Cowan. Cohan corroborated that Jean had contacted her after Cowan's murder to tell her that she was afraid for her life.

In the March 1996 interview, Jean told the police that when she first met Webb at a bar, she saw him "bust" a man's face with a pool cue. She started dating him because she was using drugs and dealing drugs, and she thought he would protect her. However, Webb turned out to be very violent towards her. She stated that he yelled and screamed at her; slapped and hit her; gave her black eyes; broke open her lip; locked her in a motel room for days at a time; pushed her down stairs; held a gun to her head; and threatened her with a knife. He also threatened her family members when she tried to leave him, and assaulted his own family members, including his father and brother. After she left him on one occasion, he stalked her at work and coworkers escorted her to and from the building because of fears for her safety.

Jean stated that after she saw Webb kill Cowan in July 1989, she was even more afraid of him because she knew he did not like that there was a witness. He told her that if she told about the murder, she would be the one that "goes down." She continued living with him after the murder, because she felt she could not safely leave him. When she would run away he would track her down. He told her brother that if she did not come home, her brother was "a dead man."

Jean told Cohan about the murder in August 1989, stating she was afraid Webb was going to kill her. She told Cohan that if she disappeared, Cohan should contact the police and tell them that Webb was the person who hurt her and that he murdered Cowan. In January 1990, after Cohan had not heard from Jean for several weeks, Cohan feared Jean had been hurt. Cohan contacted CrimeStoppers and told the police what Jean had told her about Cowan's murder.

According to Jean, when Webb was in prison for about two and one-half years (for offenses unrelated to the Cowan murder), he communicated with Jean by phone or letter or would have someone else call her. During these communications, he told her not to answer police questions about Cowan's death and that he would tell her what to say to the police. When Jean left Webb in December 1995, he yelled at her that she was going to pay "for that thing you did a few years ago," which Jean explained was a reference to the murder.

In addition to Jean's and Cohan's statements to the police in March 1996, the prosecutor submitted current declarations from the prosecution witnesses. In a December 2005 declaration, Jean stated she did not want her current address disclosed because the information could jeopardize her and her family's safety; she was afraid of Webb; he had threatened her many times in the past; and he had physically and mentally abused her. Cohan's December 2005 declaration stated she was afraid of Webb; she feared the possibility of retribution; and Webb had come looking for her at her place of employment many years ago. Jerry's December 2005 declaration stated Webb had assaulted him in the past and Jerry feared Webb would "come after [him]" if Webb knew his whereabouts.

The trial court rejected Webb's request for disclosure of the addresses. The court found the prosecution had shown good cause for nondisclosure based on the evidence that the witnesses continued to fear Webb, and this fear outweighed Webb's right to canvas their present neighborhoods in the hope of finding evidence to attack their credibility.

Webb challenges this ruling on appeal, arguing the trial court abused its discretion and violated his constitutional rights.

Prior to trial, Webb filed an unsuccessful petition for writ of mandate challenging the trial court's denial of his request for the addresses.

Analysis

A defendant's constitutional right to a fair trial includes a right to discover information that permits the presentation of a defense and cross-examination of witnesses in light of all relevant and reasonably accessible information. (See People v. Gonzalez, supra, 38 Cal.4th at p. 960; Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1146; Reid v. Superior Court (1997) 55 Cal.App.4th 1326, 1332; Miller v. Superior Court (1979) 99 Cal.App.3d 381, 385.) Generally, the address of a prosecution witness should be provided to the defense so the defense can investigate the witness's reputation for veracity in his or her community. (Miller, supra, at pp. 385-387; see Alvarado, supra, at pp. 1125-1126, 1145-1146.) However, the defendant's constitutional right to information is not absolute, and a witness's address need not necessarily be disclosed if there are concerns for the witness's safety. (Montez v. Superior Court (1992) 5 Cal.App.4th 763, 770; People v. Castro (1979) 99 Cal.App.3d 191, 200-203; see Alvarado, supra, at p. 1142.) The overriding inquiry in balancing the competing interests of the defendant and the witness is whether nondisclosure of the information deprives the defendant of a fair trial. (See Alvarado, supra, at pp. 1125-1126, 1142-1147, 1151-1152 [trial court's ruling permitting crucial prosecution witnesses to testify anonymously based on safety concerns violated defendant's constitutional rights by impeding effective investigation and cross-examination].)

Consistent with this constitutional balancing process, the Penal Code requires the prosecutor to provide witness addresses to defense counsel unless the prosecutor shows a threat to witness safety. Section 1054.1, subdivision (a) generally requires the prosecutor to provide the addresses of prosecution witnesses to defense counsel. (See People v. Bohannon (2000) 82 Cal.App.4th 798, 804-805, disapproved on another point in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) However, section 1054.7 provides that if the prosecutor shows good cause, disclosure may be denied. Good cause is defined as "threats or possible danger to the safety of a victim or witness . . . ." (§ 1054.7; see People v. Panah, supra, 35 Cal.4th at p. 458 [trial court has discretion to deny disclosure of witness's address when there is credible allegation of potential injury to witness].)

Apart from exculpatory evidence, a defendant's pretrial right to discover information pertinent to a witness's credibility may have less of a constitutional foundation than a defendant's trial right to discover such information. (See People v. Prince (2007) 40 Cal.4th 1179, 1234, fn. 10; Alvarado v. Superior Court, supra, 23 Cal.4th at pp. 1134-1135.) Based on our holding below that the nondisclosure here did not deprive Webb of a fair trial, we need not delve into this distinction.

Additionally, the Penal Code sets forth provisions to ensure witness safety when disclosure is required. Section 1054.2, subdivision (a)(1) prohibits defense counsel from disclosing witness addresses to the defendant or anyone else, unless permitted by the court after a hearing and a showing of good cause. However, defense counsel may disclose the addresses to persons employed by defense counsel or appointed by the court to assist in the preparation of the case; when this occurs defense counsel must inform the person that further dissemination of the information is prohibited. (§ 1054.2, subd. (a)(2).) Willful violation of these nondisclosure rules is a misdemeanor. (§ 1054.2, subd. (a)(3).)

Here, according to Jean's statements to the police during the 1996 interview, Webb had engaged in violent behavior directed at a wide variety of people, including Jean, Webb's family members, and other persons who displeased him. At the current trial, Webb was accused of engaging in violence that escalated to the point of murder. Jean claimed he threatened to kill her if she identified him as the perpetrator of the murder, and he threatened to kill her family members if they assisted her in leaving him. Jerry also reported being assaulted by Webb, and Cohan stated Webb had come looking for her at her work. The record supports a finding that if Webb had the opportunity to do so, he would use violence against persons who testified against him at the current trial.

Given the showing that Webb engaged in a high level of persistent violence and had threatened to kill Jean if she told about the murder, we are not persuaded by Webb's argument that the passage of time and lack of contact between Webb and the witnesses dissipated the threat to their safety. Additionally, Webb's incarceration during trial did not preclude the possibility that he would retaliate against the witnesses in the event of an acquittal, or that he would arrange for others to seek out the witnesses for retaliation.

There is nothing in the record that suggests investigation of the witnesses' current neighborhoods was essential to a fair trial. Considering the strong showing that Webb could be a danger to the witnesses should he discover their addresses, the mere possibility that current neighbors might provide information about the witnesses' current lifestyles and reputations was not sufficient to tip the balance in favor of disclosure of the witnesses' current addresses. We recognize that a disclosure order would have allowed only defense counsel and his employees, not the defendant, to acquire the witnesses' addresses. However, any disclosure increases the risk that the information could, even if inadvertently, be transmitted to the defendant. The Legislature recognized this element of risk by providing for a good cause exception to disclosure when there is a possibility of danger to the witnesses, regardless of the fact that defense counsel and defense-related employees are statutorily proscribed from providing the addresses to the defendant.

Webb argues he was deprived of a fair trial because the prosecution was able to present Jean as a reformed drug user, and he was unable to investigate her current neighborhood to check on her current reputation. The record shows that at trial Jean admitted she was regularly using methamphetamine in 1989, she was arrested for a drug-related offense in 1990, and she did not stop using drugs until 1998. Thus, the jury knew Jean was still using drugs when the homicide occurred in 1989, when she disclosed the murder to Cohan several weeks later, and when she told the authorities about it in 1996. This provided a significant avenue of impeachment that diminished the importance of additional investigation to search for any drug usage by Jean at the time of trial.

In view of the high degree of danger and the absence of circumstances compelling the need for the current addresses, the nondisclosure of the witnesses' addresses at the time of trial did not deprive Webb of a fair trial. There was no abuse of discretion or violation of Webb's constitutional rights.

V. Improper Parole Revocation Restitution Fine

When sentencing Webb, the trial court imposed a $200 parole revocation restitution fine, suspending the fine unless parole is revoked. (§ 1202.45.) The People properly concede the fine is prohibited under ex post facto rules because the 1989 murder occurred before the 1995 enactment of the Penal Code provision authorizing the fine. (Stats. 1995, ch. 313, § 6, p. 1758; People v. Callejas (2000) 85 Cal.App.4th 667, 669-670.) Accordingly, this fine must be removed from the judgment.

The fine is also inapplicable to a sentence of life without the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1186 [fine inapplicable to defendant sentenced to life without possibility of parole, indeterminate term of 15 years to life, and determinate term for personal firearm use.) The California Supreme Court has recently held that the fine should, however, be imposed on a defendant sentenced to death, plus a determinate term under section 1170 on other counts. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Because the fine here violates ex post facto rules, we need not consider whether it would be otherwise applicable.

DISPOSITION

The restitution fine under section 1202.45 is stricken from the judgment. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and transmit the abstract to the Department of Corrections and Rehabilitation.

WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.


Summaries of

People v. Webb

California Court of Appeals, Fourth District, First Division
Mar 20, 2008
No. D049792 (Cal. Ct. App. Mar. 20, 2008)
Case details for

People v. Webb

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMES WEBB, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 20, 2008

Citations

No. D049792 (Cal. Ct. App. Mar. 20, 2008)