People v. Anderson
235 Cal. Rptr. 3d 1
Cal.
2018
Check Treatment

THE PEOPLE, Plаintiff and Respondent, v. ERIC ANDERSON, Defendant and Appellant.

S138474

IN THE SUPREME COURT OF CALIFORNIA

Filed 6/28/18

San Diego County Super. Ct. No. SCE230405

A jury convicted defendant, Eric Anderson, of the first degree murder of Stephen Brucker under the special circumstances of murder in the commission or attempted commission of robbery and burglary. It also convicted him of conspiracy to commit robbery and burglary and two counts of residential burglary. It found defendant personally discharged a firearm during the commission of the murder and conspiracy. After defendant waived a jury, the court convicted him of being a felon in possession of a firearm. It also found true that he had suffered two prior serious felony convictions and a third strike conviction, and that he had served one prior prison term. After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict and imposed a judgment of death. It also imposed a prison sentence on the other counts and enhancement allegations. This appeal is automatic.

We modify the judgment by striking a one-year enhancement the trial court imposed for the prior prison term and, as modified, affirm the judgment.

I. THE FACTS

A. Guilt Phase

1. Overview

Defendant and others conspired to commit burglary and robbery at the home of Stephen Brucker. On April 14, 2003, when the conspirators arrived at the home, Brucker confronted them at the door. Defendant shot Brucker in the chest, mortally wounding him, after which the conspirators fled. Previously, defendant had committed two other residential burglaries.1

2. Prosecution Evidence

a. The Completed Burglaries

On January 8, 2003, the home of Arlene Bell in La Mesa was burglarized. The home was ransacked, and many items were taken, including a carved jewelry box with a “Made in Poland” label and some silver coins. Police later found the jewelry box and silver coins in defendant‘s residence in Poway. The items were found in the bedroom of defendant‘s housemate, James Stevens, to which defendant had access. Inside the jewelry box were credit cards in defendant‘s name. Later, a cell phone not belonging to the Bell family was discovered in their house. It had apparently fallen under a load of firewood. Defendant was the subscriber of the cell phone‘s telephone number.

On April 9, 2003, the home of John and Pamela Dolan in Alpine was burglarized. The home was ransacked, and various items were missing, including a .22-caliber handgun and a ring containing the inscription “Jenny.” Defendant later gave the ring to his girlfriend‘s mother, who turned it over to law enforcement. The stolen handgun was found under the seat of the Ford truck defendant was driving when he was arrested in Oregon on May 16, 2003.

Matthew Hansen, a San Diego police officer, lived across the street from the Dolan home. The day of the burglary, he heard a Ford Bronco that was “kind of loud” drive down the Dolan driveway. When the Bronco emerged from the driveway, Hansen paid particular attention. He “could distinctly hear it because it was loud sounding leaving his driveway.” The next day, while driving in the area, Hansen observed the same Bronco, with the same loud sound. It “sound[ed] like there was some sort of exhaust problem on the vehicle.” Defendant was the driver. Hansen wrote down the Bronco‘s license number. The vehicle had been purchased by, and was registered to, defendant. Police sometimes saw it at defendant‘s residence.

b. The Brucker Crimes

Stephen Brucker lived with his family in an unincorporated area of El Cajon. Randy Lee was familiar with the Brucker home and knew that the family had a safe. Zachary Paulson, Brandon Handshoe, and Valerie Peretti (Apollo Huhn‘s girlfriend, who was 15 years old and pregnant in April 2003) all testified that, at various times beginning in 2002, Lee suggested to Handshoe and Huhn that they burglarize the Brucker house and steal the safe, which, Lee said, contained $1 million (according to Paulson) or $2 million (according to Peretti).

In early April 2003, defendant, Handshoe, and Huhn gathered at Handshoe‘s mobilehome in the Rios Canyon area of El Cajon and discussed burglarizing the Brucker home to steal the safe. Paulson testified he was present at the mobilehome in the first week in April when they discussed a robbery. Huhn said he could “get into the safe.” Defendant said that “he could hold the guy hostage” and would “pistol whip him” if necessary. Handshoe said he would “watch out.”

Peretti testified that on April 14, 2003, she went to Handshoe‘s mobilehome around 12:30 p.m. Defendant, Huhn, and Handshoe were present. She sensed that the others did not want her to be there. But then Handshoe told defendant that it was “okay” because she was Huhn‘s girlfriend. Handshoe told her they were going to rob someone. She observed defendant “messing with some guns.” She also saw him with a bag containing “disguises.” He had some kind of a “hair piece” that was “salt and pepper” colored, and thick glasses. The three talked “about how they were going to do this.” Defendant asked for a piece of paper, then started drawing what Peretti described as “diagrams . . . of the house and how he was going to do it.” Defendant did most of the talking. Defendant “said how they were going to go and do it, and what cars were supposed to be there, and how the doorway or something was set up.” He told Handshoe “that he was going to stand over him while Brandon [i.e., Handshoe] could go in and get the safe or whatever he wanted to do.” Defendant told Huhn to “keep watch.” Peretti testified that defendant “seemed like he had done this before,” but Handshoe and Huhn were nervous and scared.

Defendant, Huhn, and Handshoe left the mobilehome in defendant‘s Bronco, with defendant driving. Before they left, defendant pulled out a semiautomatic firearm from his waistband, cocked it, said, ” ‘Let‘s do this fast,’ ” then put the gun back in his waistband. He provided gloves to Handshoe and Apollo from his bag. Handshoe also had a firearm. They were gone for about half an hour. Huhn returned first, appearing scared and upset. Handshoe returned later.

Peretti admitted that when she first talked to her father and the police about the crime, she did not tell them that Huhn had gone with the others. She said she did not tell them about Huhn‘s involvement “[b]ecause I loved him. He‘s my kid‘s father.” She received immunity for her testimony.

Handshoe testified that on April 14, 2003, he was at his mobilehome with Peretti, Huhn, and defendant. Defendant had a black .45-caliber firearm, and he was “jacking rounds out of it.” At one point, Handshoe gave defendant a piece of paper on which defendant drew a map. Defendant said something to the effect of, “We‘re going to do this right.” Defendant supplied Handshoe with a gun, which Handshoe kept in his pocket and did not use.

Defendant, Huhn, and Handshoe then went to the Brucker home to burglarize it. Defendant drove the three of them in his Bronco. When they arrived, Handshoe remained in the car on the driveway acting as a “lookout.” He had a walkie-talkie that defendant had supplied. Defendant, his firearm tucked under his arm, and Huhn walked towards the front door and out of Handshoe‘s line of vision. Defendant was wearing what Handshoe said was a “disguise“—a baseball cap and a wig. They were gone at most two minutes. Then Handshoe heard a gunshot followed by a scream. Defendant and Huhn ran back to the car and they “took off,” with defendant driving. Defendant “said something along the lines of things went wrong and he shot the guy.”

While they were driving, Handshoe asked to get out of the car. Defendant dropped him off, telling Handshoe that “if we were to say anything, we would be next.” Handshoe went to a friend‘s house then returned to his home. Peretti and Huhn were there when he returned.

After being shot, Brucker called 911. He told the dispatcher that two White males knocked on the door, and then one of them shot him in the heart. San Diego County Deputy Sheriff Karl Miller was the first law enforcement officer to respond. The front door of the Brucker house was open but the screen door was closed. Deputy Miller heard someone inside say, ” ‘I‘m in here.’ ” He went inside and observed Brucker on the telephone. Brucker had blood “all down to his waist area.” He was conscious but in a lot of pain.

Deputy Miller asked what happened. Brucker responded that he had heard somebody at the front door. He went to the door and saw two men standing there. Brucker “told them to leave the property or, in his words, ‘Get the fuck off my property.’ ” After the men said something in reply, Brucker repeated to them what he had said. Then, Brucker reported, one of the men said, “Fuck you,” and shot him in the chest. He described the shooter as White, in his “30‘s,” with a “salt-and-pepper beard,” and wearing a black and white baseball cap. Of the other man, Brucker said only that he was “a 20 year old.” (Defendant was 29 years old at the time, Huhn was 22.)

Brucker was rushed to the hospital but soon died of a single gunshot wound to his torso. A .45-caliber shell casing was found near the front door of the house.

Several witnesses who lived in the area testified that around the time of the shooting, they observed a Bronco generally described as similar to defendant‘s either emerging from the Brucker house or nearby. One witness said the vehicle was going fast, and the driver was wearing a “ball cap.” Another witness said the vehicle went “zooming” by, and it was “very loud.” Another witness said the vehicle had a loud and distinctive sound. One witness thought the Bronco she saw was lighter in color than defendant‘s. Previously, the same witness had told an investigator that the driver was wearing a baseball cap and sunglasses and had a mustache.

Travis Northcutt, a roommate of defendant‘s along with James Stevens, told Steven Baker, an investigator with the district attorney‘s office, that defendant had told him “that something big was going to happen, a big hit that involved a safe.” Northcutt also told the investigator that when he, Stevens, and defendant were watching a newscast of the Brucker murder, defendant told him to ” ‘keep his fucking mouth shut,’ that he was only the third persоn to know that [defendant] was involved and if he didn‘t keep his mouth shut, he would be next.” Northcutt also said he had seen defendant wearing a “goofy hairpiece.” When called to testify, Northcutt generally denied the truth of these statements.

Charlene Hause, who had been defendant‘s girlfriend, testified that he normally drove a Bronco. But the last time she saw him, later in April 2003, he drove a white truck. He told her he was using that truck “because they knew his Bronco.” He had shaved off his mustache and said he was leaving the San Diego area because of a parole violation.

Defendant‘s parole agent testified that on April 30, 2003, when defendant was at large, and after stolen property had been found in James Stevens‘s and defendant‘s residence, resulting in Stevens being placed into custody, defendant left a message on the voicemail of Stevens‘s parole agent‘s saying, ” ‘It‘s all fucking mine. Come and get me.’ ”

After the shooting, defendant went to Oregon. On May 16, 2003, Oregon police stopped him while driving a white truck in Harney County. He had no identification and said his name was James Stevens. The truck contained materials for making false identification cards, a handcuff key, and the handgun stolen from the Dolan home. Defendant was arrested and booked into the local county jail under the name of James Stevens. His true identity was learned the next day. A further search of the truck revealed a book entitled, “Counterfeit I.D. Made Easy,” with several passages highlighted in pink.

Three witnesses who had shared a cell with defendant in the Oregon county jail after his arrest testified that he talked to them about his plans to escape, which included the possibility of violence against the guards. He showed each of them a handcuff key in his possession. One of the cellmates drew for defendant a sketch of the nearby town of Burns and the jail‘s location. A search of defendant‘s cell in July 2003 uncovered the sketch, a bent piece of plastic, three razor blades in a deck of cards, and two handcuff keys, one on defendant‘s person.

In December 2003, Zachary Paulson, then an inmate in the San Diego County jail, where defendant was also incarcerated, testified against defendant at the preliminary hearing in this case. On February 14, 2005, several inmates, including defendant, assaulted Paulson in jail, inflicting serious injuries.

The prosecution also presented telephone records and testimony showing the еxistence, although not the content, of telephone calls among the various participants during relevant times.

3. Defense Evidence

Defendant presented evidence attempting to raise a reasonable doubt as to his guilt, including evidence challenging the credibility of prosecution witnesses, especially Handshoe, Paulson, and Peretti; evidence that he often drove a white truck; evidence regarding his appearance at different times; and evidence that the Bronco seen in the area of the crime might not have been his.

Jeffrey Gardner, a construction contractor, testified that he employed defendant the day after the Brucker murder. Defendant arrived at the jobsite before 7:30 a.m. that morning. The white truck, but not the Bronco, was there. Defendant was calm and appeared his usual self according to Gardner.

James Stevens testified that sometimes he drove defendant‘s Bronco and sometimes defendant drove his white truck. The day of the Brucker murder, defendant drove Stevens‘s truck. Stevens saw defendant that evening and noticed nothing unusual about his behavior. The two went to work together the next morning. Stevens denied that he had ever been with Travis Northcutt and defendant watching coverage of the Brucker murder or that he heard defendant tell someone to “shut the fuck up.”

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence that in July 1995, while driving a truck, defendant fired around 12 shots from a .22-caliber firearm at the driver of a car that passed in front of him. He told his passenger something along the lines of, “That fucking bitch, who does she think she is?” Defendant later told a cellmate in Oregon “that somebody in the white car had just aggravated him and he unloaded a clip at the car.”

In March 1995, defendant was convicted of one count of residential burglary and one count of possession of a stolen vehicle. In July 1995, he was convicted of two counts of residential burglary.

2. Defense Evidence

Paul Mason testified that in 2003, he was a cellmate of Apollo Huhn. Huhn told Mason that he went to the door of the Brucker home with “Brandon,” and Huhn was the one who shot Brucker.

Other than Mason‘s testimony, defendant stated that he did not want his attorneys to present evidence in mitigation. However, the court permitted him to make a statement to the jury. He told the jury the following:

“I‘ve given a lot of thought to what I want to say to you guys, but, you know, start off is nine pages. I‘m down to one page, because, basically, I think anything I say to you would be a wasted breath. I don‘t think you‘ll pay attention to anything I got to say. In one ear, out the other. But I feel compelled to tell you two things: One is that I don‘t give a shit. Give me the death penalty. If you believe I‘m guilty, kill me. The second is: I‘m innocent. Your verdict was wrong, and I hope you all can‘t sleep with yourselves. I don‘t know what you expected from my attorneys. This ain‘t Perry Mason or Matlock. No one is going to run into a courtroom saying, ‘I did it.’ What the hell did you expect? Did you not listen to the witnesses? Not a single piece of evidence.”

At this point, the court told defendant that this was his chance to address mitigating factors, not to admonish the jurors. Defendant then completed his statement: “I really despise all of you and your decision. I don‘t think you were reasonable or fair. Thanks for nothing.”

II. DISCUSSION

A. Issues Regarding Guilt

1. Denial of Motions to Sever the Defendants

Defendant moved to sever his trial from that of the codefendants, Handshoe, Huhn, and Lee. The court denied the motion, but to protect defendant, it ordered that Huhn be tried in front of a different jury than defendant and Lee. Later, defendant joined codefendant Lee‘s separate severance motion. The court denied that motion also. Defendant contends the court erred both times.

“The applicable law is settled. The Legislature has expressed a preference for joint trials; therefore, two or more defendants jointly charged with crimes must be tried together unless the court orders separate trials. (Pen. Code, § 1098; .) Joint trials promote efficiency and help avoid inconsistent verdicts. (; .) ‘[I]mportant concerns of public policy are served if a single jury is given a full and fair overview of the defendants’ joint conduct and the assertions they make to defend against [the] ensuing charges.’ (.) The court has discretion to order separate trials if there is an incriminating confession, prejudicial association, likely confusion due to evidence on multiple counts, conflicting defenses, or the possibility that a codefendant might provide exonerating testimony at a separate trial. (Ibid.) Prejudicial association might exist if ‘the characteristics or culpability of one or more defendants [is] such that the jury will find the remaining defendants guilty simply because of their association with a reprehensible person, rather than assessing each defendant‘s individual guilt of the crimes at issue.’ (Id. at p. 383.) We review the court‘s denial of severance for abuse of discretion based on the facts as of the time of the ruling. If the court properly denied severance at the time, the reviewing court may reverse a judgment only if it finds that the joint trial caused gross unfairness that denied due process. (Id. at p. 379.)” (.)

We see no abuse of discretion. “Defendant was charged with all of the crimes, making this a ‘classic case for a joint trial.’ (.)” (.) Virtually no reason existed to try the defendants separately. Because the court ordered a separate jury for Huhn, no incriminating confession was admitted against defendant. The court had discretion to conclude defendant would not be prejudiced by association with the codefendants, whom the evidence showed were less culpable than defendant. Because defendant was charged with all counts, there was no possibility of confusion due to evidence on multiple counts. No indication exists that any codefendant would have provided exonerating testimony at a separate trial.

Defendant argues that Lee‘s defense—that Lee was not one of the conspirators—conflicted with his defense. He notes that the trial court granted a motion for acquittal of the conspiracy charge that Lee made, and claims the ruling was erroneous and prejudiced him. We need not decide whether the trial court correctly acquitted Lee of the conspiracy charge. Lee‘s defense was different than defendant‘s, but not antagonistic in a way that prejudiced him. Contrary to defendant‘s argument, the jury‘s acceptance of Lee‘s defense would not preclude it from acquitting defendant. The jury could easily judge Lee‘s guilt and defendant‘s guilt separately.

Handshoe later pleaded guilty and testified against defendant under circumstances discussed in part II.A.5., post. Defendant argues that Handshoe‘s transition from a codefendant to a prosecution witness also made the denial of the severance motions erroneous. We disagree. The possibility that a codefendant might later plead guilty—a possibility that always exists when multiple defendants are charged together—is not one of the factors a court must consider in ruling on a severance motion. If a codefendant pleads guilty in a way that harms another defendant, that defendant may make appropriate motions at that time, and an appellate court may review any resulting rulings. Indeed, defendant does raise on appeal various arguments regarding Handshoe‘s change of plea. We consider those arguments below. (Pt. II.A.5., post.)

Denial of severance did not violate any federal constitutional right. As the United States Supreme Court recently explained, trying defendants together, and allowing the jury to decide based on all the evidence, can increase the reliability of the resultant verdict. “Joint proceedings are not only permissible but are often preferable when the joined defendants’ criminal conduct arises out of a single chain of events. Joint trial may enable a jury ‘to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant . . . .’ ” (; see .)

“In short, the joint trial was not unfair to defendant at all, much less grossly unfair. The court acted within its discretion in implementing the legislative preference for conducting joint trials.” (.)

2. Denial of Motion to Sever Counts

Defendant moved to sever the burglary counts from the counts concerning the Brucker crimes. The court denied the motion. Defendant contends the court erred.

The law prefers trying charged offenses together because doing so ordinarily promotes efficiency. (.) Penal Code section 954 embodies this preference. That section provides as relevant: “An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts . . . .” (Pen. Code, § 954.) “Offenses ‘committed at different times and places against different victims are nevertheless “connected together in their commission” when they are linked by a “common element of substantial importance.” ’ ” (.) The two burglaries and the Brucker crimes “all involved the intent to illegally obtain property,” which constitutes a common element of substantial importance that makes joinder proper. (Ibid.; see .)

Even if, as here, joinder is proper, the court may order the counts tried separately. “[T]he court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” (Pen. Code, § 954.) “When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant‘s severance motion.” (.) “In determining whether a trial court‘s refusal to sever charges amounts to an abuse of discretion, we consider four factors: (1)

whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether some charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a stronger case so that the spillover effect of aggregate evidence might alter the outcome of some or all of the charges; and (4) whether any charge carries the death penalty or the joinder of charges converts the matter into a capital case.” (.)

We see no abuse of discretion. The trial court carefully considered each of these factors when it exercised its discretion. Cross-admissibility is not “a precondition to joinder of charges.” (, citing Pen. Code, § 954.1.) But, as the trial court found, it exists here to a “limited” extent. The court did not find cross-admissibility to show identity. “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.” (.) The court did not find the burglaries sufficiently distinctive to show identity under this standard.

But the court correctly found that the three incidents (the Bell burglary, the Dolan burglary, and the Brucker crimes) were mutually relevant on the question of intent. The least degree of similarity is required to prove intent. All that is needed is for the crimes to be sufficiently similar to support an inference that the defendant probably had the same intent each time. (.) Here, evidence that defendant stole property during the daytime Bell and Dolan burglaries supported an inference that he had a similar intent at the Brucker home. The crimes were also relevant to show a common plan

or scheme. “To establish the existence of a common plan or scheme, ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ ” (; accord, .) The jury could reasonably conclude that the three incidents were not merely a seriеs of spontaneous acts but part of a plan to steal property repeatedly during daytime burglaries. Additionally, evidence that defendant used his Bronco in the Dolan burglary was relevant to show that the Bronco the witnesses saw at the time of the Brucker crimes was likely defendant‘s. It may have been mere coincidence that a Bronco was used in the two burglaries five days apart, but, together with the rest of the evidence, the jury could reasonably conclude otherwise.

The Bell and Dolan burglaries were not likely to inflame the jury regarding the Brucker crimes. Although the Brucker crimes were far more serious than the other burglaries, given the strength of the evidence regarding those burglaries, this circumstance did not compel severance.

This is not a matter of joining a weak case with a stronger one. The evidence that defendant participated in all three incidents was strong. He left his cell phone in the Bell home and property from that burglary was found in his home, albeit in Stevens‘s bedroom. Credit cards in defendant‘s name were in the stolen jewelry box. Additionally, defendant later left a voicemail message saying the items were his and challenging the authorities to “come and get” him. Defendant‘s Bronco was involved in the Dolan burglary, he gave a ring stolen in that burglary to his girlfriend‘s mother, and he possessed a gun stolen in that burglary when arrested in Oregon. Defendant‘s participation in the Brucker crimes was shown by strong evidence, including the testimony of Zachary Paulson, Brandon Handshoe, and Valerie Peretti; the testimony of various

witnesses who saw a Bronco generally similar to defendant‘s in the area of the Brucker crimes; and Brucker‘s description of the shooter, which ‍‌​​​‌‌​​​​‌​​​‌‌‌​‌​​​​‌​‌‌‌‌‌​​‌​‌‌​‌​​​‌​​‌‌‌‌‍generally matched defendant and made clear that the shooter was the older of the two who came to the door. Defendant was the older man by far.

This is a capital case. But that circumstance merely means the court had to carefully exercise its discretion to avoid prejudicing defendant. It does not automatically require severance. “Even where the People present capital charges, joinder is proper so long as evidence of each charge is so strong that consolidation is unlikely to affect the verdict.” (; accord, .) The court acted reasonably in finding that consolidation was not likely to affect the verdict.

For these reasons, we also reject defendant‘s argument that joinder was so unfair as to violate his federal constitutional rights. The trial court properly permitted the counts to be tried together.

3. Defendant‘s Pitchess Motion

Before trial, defendant made a Pitchess motion () to discover past complaints concerning Investigator Steven Baker that related to dishonesty or other misconduct. The court found defendant showed good cause for discovery and ordered an in camera review with the custodian of records in the absence of the prosecutor and defense. After conducting the hearing, in open court, the court announced to the parties, “The view has been conducted. No documents are being ordered released.”

“When a defendant shows good cause for the discovery of information in an officer‘s personnel records, the trial court must examine the records in camera to determine if any information should be disclosed. . . . Pitchess rulings are reviewed for abuse of discretion.” (.)

“[T]o protect the officer‘s privacy, the examination of documents and questioning of the custodian should be done in camera . . . , and the transcript of the in camera hearing and all copies of the documents should be sealed.” (.) The trial court did this. Defendant properly asks us to review the sealed record of the in camera hearing to determine whether the court erroneously failed to provide discovery that he should have received. (Id. at pp. 1229-1230.)

We have done so. The trial court did not abuse its discretion. It questioned the custodian of records carefully to ensure that she had conducted a thorough search and brought to court all relevant records. It then correctly found there were no materials to disclose.

4. Admission of Evidence of the Events in Oregon

Before trial, defendant moved to exclude evidence of his flight to Oregon and his plans to escape from custody. After a hearing, the court denied the motion. Citing and , it found the proffered evidence probative to show consciousness of guilt and not unduly prejudicial under Evidence Code section 352. Defendant contends the court erred.

Evidence showing consciousness of guilt, such as flight or escaping from jail, is generally admissible within the trial court‘s discretion. The court‘s ruling is reviewed for abuse of discretion. (; .) Defendant argues the court abused its discretion because the consciousness of guilt might have been unrelated to the Brucker crimes. He notes, for example, that he told Charlene Hause that he was leaving because of a parole violation. Therefore, he argues, the evidence does

not necessarily show consciousness of guilt of the charged crimes. We see no abuse of discretion.

As indicated in the cases the trial court cited, the existence of alternate explanations for the defendant‘s behavior does not necessarily defeat the court‘s discretion to admit consciousness-of-guilt evidence. ( [instruction on flight as showing consciousness of guilt permissible even though there was a possible innocent explanation for his actions]; [evidence of an escape attempt admissible despite the possibility the consciousness of guilt might be ascribed to a different crime].) As stated in one of the cases cited in Remiro, “the existence of explanations—other than consciousness of guilt of the crime charged—for conduct which may be interpreted as flight is relevant to the weight of the evidence showing flight, but not to its admissibility . . . .” (.)

Defendant told Hause he was driving the white truck “because they knew his Bronco,” which supports the inference that he drove that truck to Oregon due to the murder in which he had used the Bronco. The jury could readily find that he mentioned a parole violation to Hause, rather than the murder, for the simple reason that he did not want to tell her he was implicated in the murder. Defendant was entitled to argue, or present evidence, that he fled to Oregon and planned to escape due to his parole status or any other reason. But, in light of all the evidence, the jury could reasonably infer he drove the white truck and went to Oregon to avoid the murder charge, which shows consciousness of guilt.

Defendant argues further that even if the evidence of his flight to Oregon was admissible, the court abused its discretion is admitting the details of his escape plans and the items found in his truck, on his person, and in his cell. But the evidence was all part of defendant‘s conduct showing a consciousness of guilt.

The evidence was admissible “to permit the jury to assess the effect and value of the evidence on the issue of consciousness of guilt.” (.) The exact nature of defendant‘s actions was highly relevant to whether he merely acted because of a parole violation or because of something more serious, such as murder. Unlike the situation in , defendant‘s plans to escape included the possibility of violence against the guards. But under the circumstances, the court had discretion to admit all the evidence.

Defendant argues that the alleged error was prejudicial regarding guilt and, especially, regarding penalty. Because the court did not err, we need not consider the question. He also argues that, at a minimum, the jury should not have been allowed to consider the evidence in its penalty deliberations. The penalty jury was permitted to consider the evidence for the reasons it was admitted at the guilt phase. ” ‘So long as it considered the evidence offered at the guilt phase of trial solely for [the purpose it was offered], the jury was entitled to take into account all of the evidence offered at the guilt phase as part of the “circumstances of the crime,” an aggravating factor that the jury may consider in its penalty deliberations. ([Pen. Code,] § 190.3, factor (a).)’ (.) ‘Factor (a) of [Penal Code] section 190.3 allows the prosecutor and defense counsel to present to the penalty phase jury evidence of all relevant aggravating and mitigating matters “including but not limited to, the nature and circumstances of the present offense, . . . and the defendant‘s character, background, history, mental condition and physical condition.” ’ (, some italics added.) The evidence may be relevant ‘under [Penal Code] section 190.3, factor (a), to the extent that [it] gives rise to reasonable inferences concerning the circumstances of the crime and

defendant‘s culpability.’ (.)” (.)

Additionally, at least some of the evidence might have been independently admissible as aggravating evidence at the penalty phase. For example, the evidence that defendant conspired to commit a forcible escape might have been admissible as evidence of criminal activity involving the threat to use force or violence under Penal Code section 190.3, factor (b). But even if some or all of the evidence was “aggravating evidence of a type not statutorily authorized” (), defendant cannot show error. “If defendants had requested the trial court to instruct the jury that it could consider this evidence only for the light it shed on defendants’ guilt, such an instruction would perhaps have been appropriate. Defendants, however, did not request such an instruction, and the trial court was not obligated to give such an instruction on its own initiative.” (Ibid.; see .) Defendant did not request such an instruction.

In any event, the events in Oregon were minor compared to the other evidence in aggravation. The penalty determination did not turn on whether the jury improperly considered any of that evidence in aggravation for purposes other than that for which it had been offered at the guilt phase.

5. Issues Regarding Handshoe‘s Change of Plea and Testimony

Brandon Handshoe, originally а codefendant, pleaded guilty during jury selection to reduced charges pursuant to a plea bargain and testified against defendant. Defendant raises several arguments regarding these circumstances.

a. Factual Background

On April 11, 2005 (all further dates in this discussion of the factual background are to the year 2005), Handshoe made a “free talk” with the

prosecution.2 At some point after the talk, the prosecution offered him a plea bargain that he rejected. On May 2, the prosecution provided the court with a transcript of the free talk and, around that time, the prosecutor and Handshoe‘s attorney made a joint request to the court that, as the court later characterized it, “the transcript not be released because it was not exculpatory and the deal had fallen through” and because of “safety issues.” The court did not rule on the request at that time.

Jury selection began on May 6, then was continued to May 11, when voir dire began. Handshoe‘s counsel participated in the jury selection process on those days. On May 11, after jury selection had ended for the day, Handshoe pleaded guilty and agreed to testify against defendant. At that time, the court had not yet ruled on the joint request from the prosecutor and Handshoe‘s attorney not to disclose the free talk. The prosecutor provided defendant a transcript of the free talk the next morning, May 12.

Defendant moved for a mistrial or a continuance due to what he called the “unfair surprise” of Handshoe‘s change of plea. The court denied both motions on May 17. Opening statements in the case began on May 23. Handshoe testified on June 3.

When Handshoe pleaded guilty and agreed to testify, he and the prosecutor entered into a signed, written plea agreement. The agreement specified the exact terms of the plea bargain and stated that Handshoe would be sentenced to state prison for a total of 17 years. Additionally, it provided as follows:

“Defendant [i.e., Handshoe] agrees that he will cooperate by providing information to law enforcement officers and by testifying in any and all proceeding relating to Eric Anderson, Apollo Huhn and Randy Lee, including but not limited to the April 14, 2003 murder of Stephen Brucker and any other criminal matter filed against the above-listed defendants.

“On April 11, 2005 [Handshoe] gave a taped statement to investigators regarding his knowledge of thе circumstances surrounding the attempted robbery/burglary and murder of Stephen Brucker. [Handshoe] confirms that his statement is true and accurate as to his observations, his actions, and the actions of Eric Anderson, Apollo Huhn and Randy Lee. [Handshoe] agrees to submit to subsequent interviews if deemed necessary.

“Overriding all else, it is understood that this agreement extracts from Brandon Handshoe an obligation to do nothing more other than to plead guilty to the listed crimes and to tell the truth. At all times [Handshoe] shall tell the truth, and nothing other than the truth, both during the investigation and on the witness stand. [Handshoe] shall tell the truth no matter who asks the questions—investigators, prosecutors, judges or defense attorneys. It is further understood that [Handshoe] shall lose the benefits of this agreement for any intentional deviation from the truth, and if a false statement occurs while he is on the witness stand, he shall be subjected to prosecution for perjury.

“This agreement is automatically voided if Brandon Handshoe violates his obligation to tell the truth or refuses to testify in any grand jury or court proceeding. However, everything [Handshoe] has told law enforcement officers after the commencement of this agreement can be used against him.” (Boldface in original.)

The agreement added that Handshoe had read it, discussed it with his attorney, understood its terms, and voluntarily accepted them. It concluded: “I [Handshoe] agree to testify at all grand jury and court proceedings in exchange for the benefit which I am going to receive pursuant to this agreement.”

Defendant moved to exclude Handshoe‘s testimony on the ground that the agreement to testify improperly coerced him into testifying in a particular fashion. After a hearing, the court denied the motion.

b. Analysis

Defendant contends the prosecutor committed misconduct by not providing timely discovery of the free talk. He did not object in the trial court on this ground. Indeed, his attorney told the court he was not arguing there was a discovery violation, and that he understood why the prosecutor did not provide the discovery until Handshoe pleaded guilty. Accordingly, defendant has forfeited a claim of misconduct. (; .) Defendant did, however, move for a mistrial or a continuance due to Handshoe‘s change of plea and the late discovery. The court‘s denial of those motions is reviewable. Moreover, as we explain, we see no misconduct or discovery violation, and no еrror in denying a mistrial or continuance.

“Normally, the prosecution must disclose to the defendant statements of other defendants. (Pen. Code, § 1054.1.) However, the prosecutor moved the court, pursuant to Penal Code section 1054.7, for permission not to provide discovery of the free talk . . . .” (.) ”Penal Code section 1054.7 provides that disclosure may be ‘denied, restricted, or deferred’ if ‘good cause is shown.’ ‘“Good cause” is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.’ (Ibid.)” (Id. at p. 83, fn. 3.) “As the prosecutor represented to the court in his motion not to provide the discovery, nothing in the free talk was favorable to defendant. Accordingly, there was no error under (concerning the prosecutor‘s duty to disclose exculpatory evidence).” (Id. at p. 84.)

Defendant claims the free talk was exculpatory in that it contained statements relevant to Handshoe‘s credibility. But the talk contained nothing suggesting defendant‘s innocence. To the extent it contained something that might undermine Handshoe‘s credibility, it became relevant only when Handshoe became a prosecution witness, at which time the prosecution promptly provided it.

It was reasonable for the prosecutor not to disclose the free talk as long as Handshoe was not likely to testify and the trial court had not ruled on the joint motion to withhold the discovery. Here, unlike the situation in , the prosecutor provided discovery of the free talk promptly after Handshoe pleaded guilty, that is, as soon as it became apparent he would become a witness. In Rices, we assumed error in not providing the discovery once it became apparent the codefendant would become a witness. (Ibid.) Here, the prosecutor did provide the discovery. We believe the discovery was timely under the circumstances. As discussed below, we also see no prejudice. “A violation of [Penal Code] section 1054.1 is subject to the harmless-error standard set forth in .” (.)

Defendant did move for a mistrial and a continuance due to these circumstances. To the extent defendant contends the court erred in denying those motions, we disagree. No doubt defendant was surprised when Handshoe changed from a codefendant to a prosecution witness. But that happens sometimes. Criminal defendants, occasionally including codefendants, sometimes accept a plea offer and plead guilty at the last moment, when actually faced with an imminent trial. We see nothing prejudicial that required a mistrial.

Relying on two Florida cases, defendant argues he was prejudiced by the fact that Handshoe‘s attorney participated in the beginning of jury selection. In , a codefendant pleaded guilty and agreed to testify against the remaining defendant. Even after the guilty plea, the codefendant “was permitted to participate in the jury selection, for purposes of the sentencing phase of his trial.” (Id. at p. 569.) The court found that “[a]llowing the state‘s star witness to participate in picking the jury that would eventually determine Kritzman‘s guilt and punishment” was reversible error. (Id. at p. 570.) It noted that the procedure “permitted the state‘s chief witness to excuse jurors who would be prone to disbelieving his story, which implicates Kritzman“; doing so “deprived Kritzman of the ability to fairly choose jurors, free of this type of interference from the former codefendant. (Ibid.) Similarly, in , a codefendant participated in the entire jury selection process, striking two jurors whom the remaining defendant had accepted; then, after the jury had been sworn, the codefendant pleaded guilty and became a prosecution witness. Relying on Kritzman, the court found reversible error because the defendant “was tried before a jury partially chosen by a former codefendant testifying for the state.” (Id. at p. 893.)

This case is different. Handshoe‘s attorney participated in the beginning of the jury selection process, including one day of voir dire. But he was not involved in actually choosing the jurors. As soon as Handshoe pleaded guilty, well before the jury was selected, his attorney stopped participating in the trial. The trial court could reasonably conclude that the jury would have no difficulty understanding that Handshoe, although originally a codefendant, had pleaded guilty, and that defendant therefore suffered no prejudice. The court acted within its discretion in denying the mistrial motion. (.)

The court also acted within its discretion in denying a continuance. “[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked.” (.)

When the court and the parties discussed whether a continuance was nеeded, the prosecutor informed the court that he would probably call Handshoe as a witness at the end of his case. In fact, Handshoe did not testify until June 3, some three weeks after defendant received discovery of the free talk and became aware that Handshoe would testify. The prosecutor made no use of the free talk, although defendant himself asked Handshoe about it on cross-examination to show his interest in obtaining as favorable a plea offer as possible. Nothing in the record suggests that three weeks was an inadequate amount of time for defendant to prepare for Handshoe‘s testimony. The court acted within its discretion in denying a continuance.

Defendant also argues that the plea agreement improperly coerced him into testifying in a particular fashion.

“[A] defendant is denied a fair trial if the prosecution‘s case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.” (; accord, .) Because of this, “[i]mmunity or plea agreements may not properly place the accomplice under a strong compulsion to testify in a particular manner—a requirement that he or she testify in conformity with an earlier statement to the police, for example, or that the testimony result in defendant‘s conviction, would place the witness under compulsion inconsistent with the defendant‘s right to fair trial.” (.) “[W]e review the record and reach an independent judgment whether the agreement under which the witnesses testified was coercive and whether defendant was deprived of a fair trial by the introduction of the testimony, keeping in mind that generally we resolve factual conflicts in favor of the judgment below.” (Ibid.)

Defendant contends Handshoe‘s agreement was improperly coercive under this standard. However, as the bold print in the agreement emphasized, the agreement required Handshoe to do nothing more than testify truthfully. “Although we have recognized that there is some compulsion inherent in any plea agreement or grant of immunity, we have concluded that ‘it is clear that an agreement requiring only that the witness testify fully and truthfully is valid.’ [Citations.] Such a plea agreement, even if it is clear the prosecutor believes the witness‘s prior statement to the police is the truth, and deviation from that statement in testimony may result in the withdrawal of the plea offer, does not place such compulsion upon the witness as to violate the defendant‘s right to a fair trial.” (.) The agreement is not improperly coercive unless it “is expressly contingent ‍‌​​​‌‌​​​​‌​​​‌‌‌​‌​​​​‌​‌‌‌‌‌​​‌​‌‌​‌​​​‌​​‌‌‌‌‍on the witness sticking to a particular version . . . .” (; accord, .)

In the agreement, Handshoe confirmed that his previous statement was true. But this provision did not make the agreement impermissibly coercive. Nothing in the agreement indicated that it would be violated if Handshoe were to testify truthfully yet contradict an aspect of his prior statement. “These principles are violated only when the agreement requires the witness to testify to prior statements ‘regardless of their truth,’ but not when the truthfulness of those statements is the mutually shared understanding of the witness and the prosecution as the basis for the plea bargain.” (, citing .)

In Boyer, “the agreement stated, ‘the witness has represented that [his] testimony . . . will be in substance’ ” consistent with his prior taped statements. (.) We found this provision not improperly coercive. “The grant of immunity to Kennedy [the witness], by its terms, was based on his truthful testimony, which Kennedy himself ‘represented’ would be in accordance with his prior statements. Thus, the agreement simply reflected the parties’ mutual understanding that the prior statements were the truth, not that Kennedy must testify consistently with those statements regardless of their truth.” (Id. at p. 456.) The agreement here was similar.

The agreement also informed Handshoe that if he intentionally lied, the agreement would be nullified and he (like any witness) could be prosecuted for perjury. But this language “simply spells out the consequences present in every plea agreement conditioned on the witness testifying truthfully; it does not amount to Medina error.” (.)

Accordingly, the trial court correctly permitted Handshoe to testify. Its ruling did not deny defendant a remedy. He had the opportunity to, and did, cross-examine Handshoe effectively regarding the plea agreement and any coercive aspect it may have had. The jury learned about the agreement and the surrounding circumstances and thus could evaluate Handshoe‘s credibility. (.) “We conclude that the record does not establish that defendant was denied a fair trial.” (Ibid.)

6. Refusal to Order a Witness to Undergo Drug Testing

During Valerie Peretti‘s testimony, at a conference outside the jury‘s presence, defendant‘s attorney stated: “I have a concern as to whether Ms. Peretti may be under the influence as she is testifying today. Her demeanor is such that she‘s constantly leaning, constantly locking her jaw, and is scratching herself. Given what I know of her history, I think it is—it would be quite likely that she is under the influence. And I think if she is, that the jurors would have a right to know about that. So I would ask the court to order that she produce a urine sample.” The court denied the request but added, “In terms of cross-examination, if you feel that there is unresponsiveness, you can inquire.” Defendant argues the court erred in not requiring the witness to undergo drug testing.

“A witness‘s drug intoxication may indeed be a basis for impeaching his credibility [citations]; in extreme cases it may render him incompetent to testify [citation]. Defendant must be allowed to explore fully any issue of the witness‘s competence or credibility by cross-examination, subject to the witness’ right against self-incrimination. [Citation.] But defendant has cited no case, nor have we discovered one, which suggests that a criminal accused is entitled on demand to subject a witness to a court-ordered physical intrusion or chemical test to determine whether he is under the influence of an intoxicating substance.” (.) Witnesses, as well as criminal defendants, have a constitutional right “to be free from unwarranted bodily intrusions by agents of government.” (Ibid.) “[N]o intrusion may be ordered on a showing less than probable cause.” (Id. at p. 738.) Although most of the cases involve criminal suspects, “it is manifest that nonparties have equal rights against unreasonable bodily searches.” (Ibid.) Accordingly, “[a] defendant‘s constitutional right to confront a witness does not entitle him to obtain court-ordered evidence in violation of the witness‘s constitutional rights against unreasonable searches and seizures.” (Ibid.; accord, .) Before the court can order a witness to undergo drug testing it must find probable cause to believe doing so will uncover material evidence. (Earp, at p. 882.)

We need not decide whether the circumstances would have permitted the court to order Peretti to undergo drug testing, for nothing in the record suggests the court was compelled to do so. Defense counsel argued for drug testing, but that alone did not compel the court to order it. The judge was present and was in a far better position than this court to determine the necessity and propriety of subjecting the witness to drug testing. But even reviewing the cold record, no reason appears to believe that such testing was warranted, much less required. The witness, 17 years old at the time she testified, was articulate and appeared to have no difficulty understanding and answering the questions. She withstood without apparent difficulty an extraordinarily long and probing cross-examination. As the trial court noted, defense counsel was able to, and did, ask questions regarding her past drug use, which the witness candidly and articulately answered. This record does not compel a finding of probable cause sufficient to order the witness to undergo drug testing. Accordingly, we see no error.

7. Permitting the Jury To View and Listen to Defendant‘s Bronco

Two witnesses who observed the Bronco at the time, and in the area, of the Brucker crimes described it as loud. Accordingly, the prosecutor requested that the jury be allowed to listen to the sound of defendant‘s Bronco, which had been impounded. Defendant objected, arguing that whether the Bronco was loud was not disputed, and the conditions were not the same at the time of trial as they were at the time of the crimes over two years earlier. The court overruled the objection. It stated that this is “simply a tidbit of circumstantial evidence. It‘s relevant in terms of there‘s been testimony that this particular Ford Bronco has some unique characteristics. So, to me, it‘s similar to any type of eyewitness identification issue.” The court observed that defendant could present any evidence he wished explaining that the sound at the time of the trial might be different than at the time of the crimes. But the court “believe[d] that goes to weight, not admissibility.” Later, Detective Curt Goldberg stated to the court and the parties that the vehicle would be pulled onto a flatbed truck and towed to the spot where the jury would view it. Defense counsel indicated there might be additional objections.

The next court day, the court held another hearing. Defense counsel reiterated the objection that what she termed an “experiment” would be conducted under different conditions than prevailed at the time of the crimes. The court asked the prosecutor whether he intended to conduct an experiment. He responded that he did not: “The vehicle is simply going to be started so that the jurors have an opportunity to hear the loudness or lack thereof of the vehicle.” The court again overruled the objection: “I agree in terms of the logic of what [defense counsel] said that there may in fact be some dissimilarity in terms of the exact condition of the exhaust system, the muffler, today‘s condition versus April 14th or April 9th and 10th of 2003. But I sense from what‘s been proposed by the district attorney that they‘re not trying to establish that the exhaust system is a tenor or a baritone or a bass or anything of that nature. They‘re trying to establish that it has a problem with the exhaust system, period.” It reiterated that defendant could cross-examine witnesses in this regard.

Detective Goldberg testified in front of the jury that he impounded defendant‘s Bronco on May 13, 2003 and, after searching it for evidence, he stored it at the sheriff‘s department impound lot in El Cajon, where it had remained until trial. He arranged for it to be brought to the area of the courthouse. On cross-examination, defense counsel established that the vehicle had been towed to the courthouse that day; that it had remained in the open exposed to the elements, including rain, for over two years; and that it had been started twice during that time, the last time on February 17, 2005.

After Detective Goldberg testified, the jury was taken outside to the Bronco‘s location. Defendant further objected that, because the vehicle was on top of the metal tow truck, the sound would reverberate, making it sound louder than it otherwise would. The court did not change its ruling. At defendant‘s request, it ruled that the jury could look at the vehicle‘s muffler. Then the Bronco was started and the jury listened to it.

Defendant contends the court erred in permitting the jury to listen to the Bronco‘s sound. He argues that, because the circumstances in which the jury heard it were different than those that existed two years earlier, the evidence was irrelevant and, even if relevant, should have been excluded as impermissibly prejudicial under Evidence Code section 352. “The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value.” (

Notes

1
Originally, there were three codefendants: Brandon Handshoe, Apollo Huhn, and Randy Lee. None are involved in this appeal. Handshoe pleaded guilty to reduced charges and agreed to testify. Lee was tried with defendant and acquitted of all charges. Huhn was tried simultaneously but with a different jury. He was convicted of murder with special circumstances and conspiracy. His judgment was later reversed on appeal.
2
“As used here, it appears that a ‘free talk’ is a statement about the crime that a criminal defendant provides to the prosecutor or investigators (or both), in defense counsel‘s presence, with the aim of possibly leading to a plea bargain and the defendant‘s testifying against a codefendant.” (.)
*
Presiding Justice of the Court of Appeal, Second Appellate District, Division Six, assigned ‍‌​​​‌‌​​​​‌​​​‌‌‌​‌​​​​‌​‌‌‌‌‌​​‌​‌‌​‌​​​‌​​‌‌‌‌‍by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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