4 Cal. App. 5th 55
Cal. Ct. App.2016Background
- Defendant Jeff Antoine Boswell was convicted by a jury of first degree murder with burglary and robbery special circumstances, burglary of an inhabited dwelling, two counts of commercial burglary, and petty theft; sentenced to life without parole plus additional terms; appeal followed.
- Victim (87-year-old Blanche Griffin) was found dead; medical examiner ruled homicide by assault/strangulation. Male DNA from Griffin's neck and DNA under her fingernails linked to Boswell; blood from two later commercial burglaries matched Boswell.
- Separate theft incidents: Boswell admitted stealing a cellphone (petty theft) and cigarettes at two stores (commercial burglaries) where his blood was found.
- Trial court consolidated homicide and theft-related charges; defense did not move to sever; jury was instructed to consider counts separately.
- Trial court admitted multiple crime scene and autopsy photographs over defense Evidence Code § 352 objections. The court stayed the burglary sentence under Penal Code § 654.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether burglary (count 2) is a lesser included offense of murder with burglary special circumstance | Special circumstance is not an element; People argue elements test controls, so burglary is a separate offense | Boswell: murder with burglary special circumstance necessarily includes burglary, so burglary conviction must be vacated | Court: Affirmed burglary conviction; special circumstances function like enhancements and are not elements for lesser-included analysis (elements test controls) |
| Whether consolidation of murder and theft charges denied due process/fair trial | Joinder was proper because offenses were connected and evidence cross-admissible; no gross unfairness | Boswell: joinder caused prejudice; alternatively ineffective assistance for counsel not moving to sever | Court: No gross unfairness; joinder proper; counsel not ineffective because severance would have been denied and no prejudice shown |
| Whether admission of crime scene and autopsy photographs was unduly prejudicial under Evid. Code § 352 | Photographs were probative to the medical examiner's testimony and to show trauma and felony-murder theory | Boswell: photos cumulative, inflammatory, unduly prejudicial | Court: Admission within trial court's broad discretion; probative value outweighed prejudice; any assumed error harmless given strong evidence |
| Whether abstract of judgment contains clerical errors (parole revocation fine; stayed sentence not reflected) | People concede errors: parole revocation fine inapplicable to LWOP; stay under § 654 not shown on abstract | Boswell: abstract should be corrected | Court: Order modifies judgment to strike § 1202.45 fine and to reflect stay of sentence on count 2; directs amended abstract be prepared |
Key Cases Cited
- People v. Wolcott, 34 Cal.3d 92 (stating enhancements are not elements for lesser-included analysis)
- People v. Anderson, 47 Cal.4th 92 (distinguishing elements of offenses from penalty provisions; penalty provisions are appendages)
- People v. Reed, 38 Cal.4th 1224 (statutory-elements test for lesser-included offenses)
- People v. Maury, 30 Cal.4th 342 (failure to object/sever forfeits claim on appeal)
- People v. Rogers, 39 Cal.4th 826 (review for gross unfairness where no severance motion was made)
- People v. Bradford, 15 Cal.4th 1229 (standards for severance; factors establishing prejudice)
- People v. Crittenden, 9 Cal.4th 83 (trial court discretion on admission of victim photographs under Evid. Code § 352)
- People v. Gurule, 28 Cal.4th 557 (photographs may be admitted to help jury evaluate prosecution theory)
- Chapman v. California, 386 U.S. 18 (harmless error standard)